Introduction to the Law of Negligence
1 – SOC 4 – Remoteness of Damage
2 – DOC 5 - Actual Loss
3 – Causation 6 - Damages
CaseFactsLegal Issues and Rules
Buchan v Ortho Pharmaceutical•A mfr of a product has a common law duty to warn consumers of dangers
inherent in the use of its product, which it knows or ought to know. Once duty
to warn is recognized, warning must be adequate – Lambert et.al v.
Lastoplex Chemicals described level of explicitness in requiring a warning.
Ortho obligation to warn ultimate consumer and not just docs. Ortho US
sales reps were being instructed to make full disclosure of risk of stroke with
smoking but Ortho Canada did not. (no comparable warnings).
•Should be communicated clearly and understandably in manner calculated to
inform the use of the nature of the risk and extent of danger – should be in
terms commensurate with gravity of potential hazard.
•The duty also requires that Mfcr warn of dangers known not only at time of
sale, but also dangers discovered after product has been sold/delivered. In
case of technical product (prescription drugs) warning must be given to a
learned intermediary (doctor).
•As per M’Alister v Stevenson, mfcr has duty to warn consumer – one who
brings themselves into a relation with others through an activity which
foreseeably exposes them to danger if proper care is not observed must
excercice reasonable care to safeguard them from danger. Duty to warn, if
breached, gives rise to liability.
•Obiter dicta: Because oral contraceptives are very different from other types
of drugs – not linked to an illness and patient demand drive use more often
than doc’s advice – mfcr in this case must have duty to warn consumers
directly. This eventually becomes good law.Hollis v Dow Corning Corp•Sets out principles in Buchan re: defendant mfcr’s failure to warn surgeon of
risk associate with breast implants would rupture. Because mfcr has more
likelihood of overemphasizing the benefits and underemphasizing the risks,
and is more self-interested, it is desirable to hold the mfcr to a strict standard
of warning consumers of dangerous side effects to these productsTobacco Tort Cases in Ont•Dunsmore v. Deshield•
Duty of Care – D v S, Ans, Cdn Ans, Foreseeable Risk of Injury & Forseeable Plaintiff Test
DOC: an inquiry into the existence nature and scope of the legal relationship between the plaintiff and defendant. The legal foundation of the tort
of negligence. Involves a combination of legal and public policy analysis re: boundaries of legal responsibility in the particular factual
considerations of the case - a legal issue that lies within the exclusive control of judges.
Donoghue v StevensonGingerbeer•take reasonable care to avoid acts/omissions reasonably seen to injure your
neighbour (People who are clearly affected by your acts that your reasonably
contemplate them in your acts or omissions)
•DOC in negligence action based on relationship of proximity – must take
reasonable care to avoid act or omission which you can reasonably foresee
would be likely to injure your neighbourAns v London Burrow of Merton•Two steps:
-- look for relationship of sufficient proximity between parties
-- any policy considerations that would negate the scope of the duty
•Note: HL backed off Ans - more reliance in England in fitting case of
negligence to an existing case – much more reliance on demonstrating
precedentAns in Canada: •Difficulty in Canada was that the analysis was pretty loose – decisions
--Kamloops v Neilsenseemed to be based on policy considerations that didn’t have much backing
Ans in Canada: -Mortgage broker went •Refines interpretation of Ans test
--Cooper v Hobartunder – can’t recover •Discusses the place of policy considerations money lost by them(1)Is P part of a proximate class of persons who are within the ambit of -Going after Association by foreseeable risk created by D’s conduct? claiming negligence in •Is P within a class of persons foreseeably put at risk by the D’s supervision of company – conduct? trying to sue the statutory •Is the type or category of relationship one that is sufficiently proximate regulator. This is a new (“close and direct”)? (This principle established in Cooper (2001))case of negligence.Factor in policy considerations at the first state of analysis (courts say that
proximity alone isn’t enough to prove foreseeability)…use policy as context in
determining proximity (either pro or con). Looking at statutory type policy
-- proximity means: First def is to characterize the type of relationship in
which a duty of care may arise; Second is that sufficiently proximate
relationships are identified through the use of categories.
--If the case fits within an established category (D’s act forseeably causes
physical harm to the plaintiff/plaintiff’s property – extended to nervous
shock, Negligent misstatement, Misfeance in public office, Duty to warn
of the risk of danger, Municipality duty to real estate purchasers, Gov
duty for road maintenance/infra) then prima facie duty established and on
to phase 2.
(2)Second stage uses policy looks at how policy may limit the duty of care
established in stage 1. Looks at larger policy considerations. Called
‘residual policy’ issues outside the relationship of the parties that may
negative the imposition of a duty of care. -E.g., public authorities
cannot be held liable for “policy” decisions (Just v. B.C., p.493); no
liability in the exercise of judicial or quasi-judicial functions (Cooper,
•Ratio: Statute found that there is no duty of care imposed on Registrar to
investors with mortgage brokers. Rather it is to public as a whole. Therefore,
insufficient proximity to investors to ground a PF duty of care. Need not
proceed to 2nd stage because did not find a new category. Still, cts offered
their position on policy.
Odhavji v Woodhouse•Claim that D breached •Claim against Chief, Board and province: apply Ans/Cooper to each partystat obligation to •Chief:
cooperate with SIU (1)as chief, foreseeable that failing to ensure officers comply with SIU would investigation causing harm;
mental distress.(2)proximity: causal link between chief inaction, police misconduct and
harm. Also – chief has stat duty of care to ensure coop with SIU (ie. The
‘relationship policy’ test brought out in Coopers. So yes, PF exists –
private law obligation exists.
(3)Policy: no reasons to deny
(1)RF there could be public harm if board didn’t discharge its duties.
(2)No rtlnshp of prox btw board and indiv. Board does no supervisory role of
police, no day to day oversight, so no close causal cnxn btwn conduct and
harm. So no PF. Also, unlike chief of police there is not stat obligations
that police officer comply with the SIU.
•Province: Insufficient proximity here in the day to day duties of police officers,
not stat duty for prov to make officers comply with the SIU.
Bella v Young••Proximity: misguided report to CPS
•relationship between student and Uni existed in Tort and K. Therefore,
duties were owed to the student by the Uni.
•Policy: SOC – Uni breached SOC by not taking reasonable care in making
reports that could have such grave consequence.
Forseeable Risk of Injury:•Forseeable risk of injury
Moule v NB Elec Power•Issue here between duty of care and standard of care. Courts recognizes that
trees are an allurement to children.
•Can approach FRI by DOC, SOC or remoteness of damages – here, using
oFirst, a court will impose a DOC only if the D ‘s conduct created a
foreseeability risk of injury to the P. Second, the probability of injury is
one of several factors considered in determining whether the D
breached the SOC. Finally, the P’s loss will be held to be too remote
if they were not a foreseeable result of the D’s breach of the standard
oDOC: Would a reasonable man anticipate that the wires isolated in
the trees…so court recognizes that the defendant had taken
reasonable precautions to protect against harm of the wires in the
tree as could be reasonably foreseen. These were adequate
precautions against dangers and there was no duty to do more
Forseeable Plaintiff Test:•P passenger on train, •P has to found claim on a breech of duty of care owned to HER
Palsgraf v Long Island Ry Co.D worker pushed •Not enough that D breach of duty of care to others
person who was •P outside the ambit of foreseeable risk, since no apparent danger to
carrying fireworks passengers waiting on the platform at the moment of the alleged negligence
wrapped in newspaper, (because fireworks wrapped in newspaper)
P was injured and sues oP was not a r. foreseeable P
D for damages•Therefore, no duty owned; jury verdict in favor of P reversed
•Dissent: does not accept a limit of what is reasonably foreseeable, you’ve
wronged P, even if it was not reasonable foreseeable, should still be held
Haley v London Electric Co.•Blind man, injures self •DOC – owed to all reasonably foreseeable pedestrians - and blind people
in construction test, fall within this category
goes deaf •The presence of blind people on the road was RF
•It would not have taken much to make it safe
•DOC encompasses those w disabilities
•But MAY be different for people with rare disabilities –
•Proximity here – can establish with causal link between actions of
construction co. and blind man’s injuries as result of trench dug.
Nonfeasance: Duties of Affirmative Action – Duty to Rescue, D to control actions of others,
•Negligence can encompass both acts (misfeasance) and omissions (nonfeasance)
•At CC there is no general DOC to take affirmative action for benefit of others
•Nonfeasance standing alone would not constitute negligence
•Where there is something more between P and D (special relationship) cts can find a DOC (has been happening more often)
oThe question is whether the common law should impose this kind of duty – so need to understand the relationship between law
and morality. What is function of law in imposing morality? Law generally doesn’t take “You are your brother’s keeper” morality
into account – unless there is something more between you and the P.
oSo when someone is harmed, then they have to be compensated. But when you think of someone who failed to carry an action
(ie. rescue) should that person be responsible to compensate that person. These are generally policy considerations (and they are
coming to the fore more and more frequently).
•The scope of liability started changed and courts generally recognize various exceptions to the rule
oDuty to rescue
oDuty to control the conduct of others
oDuty to fulfill gratuitous undertakings
•Similar to Ans approach but
Osterlind v Hill•Defendant rented out •American decision
canoe to drunks who •No CL duty to act or come to the rescue of others
tipped. Called out for •Today decision would be different:
help and D didn’t help. oD wold have been found Neg and owed a DOC to his customers not Sued for negligence in to rent and to rescue. renting out canoe to oSOC would be to not rent out to drunkspeople knowing their oNote: several limitations where CL does impose a duty to rescue: if P state of drunk and that created the situation, worsened the position, denied the P other D was neg in not opportunities for aid, or induced the P to rely on him to his detrimentcoming to their
Matthews v MacLaren; •One of guests fell •D has a legal duty to rescue passenger who fell overboard by his own
Horsely MacLarenoverboard – the owner misfortune or carelessness and w/o any negligence on the part of the D:tries to maneuver boat oCanada Shipping Act – master of boat has to come to aid of someone to help save person, in the sea – true that it does not necc refer to coming to assistance of another passenger passenger who fell overboard. However: The courts also note that the jumps in to try to save increasing willingness to find this type of special relationships to find him…but to no avail.an affirmative duty to rescue – so there is a common law duty to
resuce w/o risking your own life. Courts notes that this is
consummate of policy considerations and is staying with social
obligations of civilization. IF CSA says that there is a duty to rescue a
stranger from the sea, common law must impose a duty to rescue
•Once D undertakes a rescue, he assumes a duty of act…and can be
negligent in the action of rescue and puts D in a worse situation. So once
court has determined that there is a legal duty established and then goes to
determine what the standard of care be in the performance of such a duty.
oNo statute regulations for this case…based on experienced boater
who go about how to rescue someone…they were of opinion that
rescue should be attempted differently and the owner/operator was
negligent in rescue attempt. Plus fact that the D was drunk
compromised his ability to carry out duty.
•BUT – in spite of finding of negligence, case fails on basis of causality.
Because the water was so cold the plaintiff would have drowned – based on
fact that older guy froze right away. So even if def did do everything properly
person would have been dead anyways
•There was no causation ; couldn’t prove that in absence the rescue, plaintiff
would have survived. So the action fails – fails on causation although court
does find an affirmative duty to rescue and yes, he was negligent in the
rescue attempt. Nonetheless, plaintiff failed in action.
Matthews v MacLaren; •Horsely jumps in to •The SCC affirms this duty of care – the captain will only be liable if Horsely’
Horsely MacLarensave Matthews but manner of diving into the water if it was so aggravated by the captain’s
dies.negligence that this induced Horsely’s to dive into the water to save the other
•The failed first rescue attempt was considered to be an error but not a breach
of SOC – would have to be so major a breach of SOC to induce Horsely to
jump into the water
•Couldn’t forsee that Horsely would jump in lake as a result of his failed
•Liable to a secondary rescuer: “if a person by his fault, creates a situation of
peril, he must answer to it, by anyone who attempts to rescue”
oHere, D did not create situation that led to first person falling
overboard so can’t owe a duty to the second rescuer
oSo any duty owing to Horsley must stem form fact that new situation
of peril was created by Mac’s negligence which induced Horsely to
act as he did
Duty to Control the Conduct •Signed waiver drunk to •Duty to control the conduct of the intoxicated
of Others:do tubing competition – •Special relationship which is an exception to no need for positive duty to act
Crocker v Sundance Northwest judge did not take this •Analysis: ct had to distinguish this case from run of mill sporting events in
Resortsas a fact because which no one else is negligent.
Crocker was too drunk. •DOC: Sundance set up an inherently dangerous competition and were in Were drinking with charge of the way event was conducted. Also, because running this even identifiers that they for profit – RESORT SET UP AN INHERENTLY DANGEROUS SITUATION were in the tubing FOR ITS FINANCIAL GAIN (Special benefit of economic benefit). Also contest. Injured, provided liquor to Crocker knowing he was drunk and that it heightened became quadriplegic.chance of injury. They even questioned his ability to continue. So they
cannot state that they are stranger to his misfortune. Must accept
responsibility as promoter (duty here because of special relationship) of
event to take all reasonable steps to prevent a visibly incapacitated person
•SOC: Lots of options to dissuade Crocker from competing. Could have
disqualified him for being drunk – but they went to the point of even giving
him a new tube when he lost his! Breached this standard of care.
•Causation: Sundance tries to say that because there is no skill involved in
tubing, Crocker’s drunken state did not cause injury. This is at odds with
•Voluntary assumption of risk: Fact that he was drunk made his voluntary
acceptance of risk dubious and his signing of the waiver not truly being his
accepting the terms of the waiver because of his mindset. Cannot show that
he assumed risk voluntarily.
Stewart v Pettie•Went to dinner play, •Leading decision of the Supreme Court of Canada on the duty of care owed Pettie was drunk but by commercial establishments serving liquor.was allowed to drive by •Applicability of principles of commercial host liability, established in Jordan family. Accident House v Menow, apply to impose liability on Mayfield.happened, and •Was Mayfield Investments negligent in failing to take any steps to ensure that passenger Steward Pettie did not drive after leaving dinner?was rendered a •DOC: Sufficient degree of proximity btw Mayfield and Stewart that a duty of quadriplegic – she was care existed between them – but the duty of care is not only because Stewart not wearing seatbelt. is a patron but because she belong to a class of persons that could be Had she, injuries could expected on the highway and it is this class that the duty is owned (duty by have been prevented.bar owed to third party - people on roads driven by drunks from that bar).
•SOC: special relationship exists – but action to act will only exist if there was
a reasonably foreseeable risk. Here, there was no reasonable way that the
theatre could foresee that Stuart would be the one to drive. The theatre was
correct in assuming that Stuart would not be the one to drive (was with
sisters, assumed they would drive). Nevertheless, Major confirmed that the
theatre must monitor the patron's alcohol consumption based on the amount
served and not solely on the patron's visible condition.
•From an Ans perspective:
oThere was a relationship of prox – relation between commercial host
and drivers on road
oBut there was no reasonable forseeability of risk
oSo no DOC either from Ans.
•Causation: not established on the b of p (intervention by employees might
not have made any difference)
S.39 of Liquor License Act••Applies to liquor sellers. If they sell to apparently intoxicated person to the
point where they are in danger of causing injury, they are liable for:
oDeath of person while intoxicated
oIf person is drunk causes injury or damages to another person, the
OTHER person may be entitled to recover an amount as
compensation for the injury or damages
Hunt v Sutton Incentive Realty••Extends duty of care of an employer to safeguard employees from harm
•High SOC imposed – accident was reasonably foreseeable and direct
consequence of failure of D to discharge their DOC
Childs v Desormeaux•Facts: Desormeaux •Issue: Whether social hosts who invite guests to an event where alcohol is attended a B.Y.O.B. served owe a legal duty of care to third parties who may be injured by party, drove drunk intoxicated guests.
home, and was in an •Analysis: The trial judge at the Ontario Superior Court held that case accident where the satisfied the first stage of the test--sufficient proximity--but refused to impose other vehicle involved a duty of care on public policy grounds.
contained one person •Like the trial court, the Ontario Court of Appeal held that Zimmerman and who was killed and Courrier did not owe a duty of care to Childs, but for different reasons: the another who was relationship between the hosts and the guest was not proximate enough to injuredground a duty of care. This was because, among other things, the hosts did
not serve alcohol to Desormeaux and did not know he was intoxicated, they
did not assume control over the service of alcohol, there was no statute
imposing a duty to monitor drinking on social hosts, and the hosts did not
otherwise assume responsibility for Desormeaux's safety.
•The Supreme Court held that a duty of care did not exist between the social
hosts (Courrier and Zimmerman) and the third-party users of the road
(Childs) injured by Desormeaux. An omission in carrying a positive DOC may
exist if the relationship between P and D has a special link of proximity.
oWhere D intentionally attracts and invites third parties to a obvious
risk that D created/control
oPaternlistic relationship of supervision and control
oPublic function or engage in a commercial enterprise with implied
duties to plublc
•Autonomy of person affected by positive action proposed.
Person is still responsible for his conduct
•D’s control/creation of risk to which P has been invited
•Childs doesn’t fit into any of these.
•Like the Ontario Court of Appeal, the Supreme Court found that the proximity
between the plaintiffs and defendants was not sufficient to ground a duty of
care. Unlike the Ontario court, however, the Supreme Court did not even
discuss the second stage of the Anns/Kamloops Test, writing simply that
since sufficient proximity was not present in the relationship between the
parties, it was not necessary to discuss the second stage.
Jane Doe v Metro Toronto •Police sued for •Issue: do police have a duty to potential victims? To Jane Doe?Comm of Policedecisions made in the •P sued D for:
course of an 1. negligence—failure to warn, failure to protect
investigation to not 2.breech of her rights under the Charter
warn or otherwise •DOC:
protect Ms. Doe, whom oPolice had defined area for potential attacks and MO of rapist, was a
they knew to be the small, specific group of women at risk – thus a small group to warn –
likely target of a serial was proximity. Court deemed this to be a special relationship giving
rapistAside: issue of rise to proximity.
“shop-talk:” oStatuary duty of police supports recognition of a common law duty of
discrimination; not affirmative action – no stat immunitywarning due to •SOC: women’s panicoPolice may be able to say that warning may not have to be given
because may cause panic – but this would not excuse them for not
carrying out their duty to protect. Would have to find another way to
accomplish this – which they didn’t. So if they didn’t warn her they
had duty to protect her.
•Causation established, had she been warned, most probably she would have
taken effective precautions (distinguished from Stewert v. Pettie)
•To establish a private law duty of care, forseeability of risk must co-exist with
a special relationship of proximity (here it doesn)
oPolice knew or ought to have known the risk of P being raped – the
risk was foreseeable ALONG with the established proximityNotes: •cts have started imposing duty on private citizen – in cases such of landlords, not providing enough
security that caused someone to break in. How broadly should this type of affirmative duty be extended to
private citizens? Remember in affirmative action, looking for something special in the relationship.
•Obligation to protect children from abuse. Claims on secondary abuse victims ought not be allowed
because they raise difficult issues of duty and foreseeability, as well as plaintiff-specific issues of proximity.
•Potential liabilities of help professionals – what is the extent of their duty to protect their patients and also,
those who may be endangered by others affected by the actions of their patients – eg. Case of Terasoff
oThis is a US case but has been referred to in Canada. Cts say re: confidentiality about patient
disclosure ends where the public peril begins. The case settled before it went to trial but it speaks
to the boundaries/limits of confidentiality to patient info. It says that health care provider is under a
legal duty to warn others if people could be harmed.
Special Duties of Care – DOC Owed to Rescuers, Nervous Shock
In Cooper v Hobart, SCC reiterated its support of Ans, but also stressed need to consider discrete policy considerations that arise in various types
of circumstances. Here, we look at how the courts tend to refer to older, more finely tuned principles, rather than apply the generalizations of Ans.
Special duty of care in addition to general duty to take affirmative action.
DOC Owed to Rescuers – ••refer to earlier pointsHorsley v MacLaren