By Michele Cunningham,2014-06-26 21:39
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    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 PharmaceuticalA 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 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 CorpSets 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 OntDunsmore 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 StevensonGingerbeertake 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 MertonTwo 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

    them up

    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 WoodhouseClaim 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 PowerIssue 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

    of care.

    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 damagesTherefore, 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 HillDefendant 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 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

    rescue attempt

    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

    from participating.

    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 PettieWent 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 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 DesormeauxFacts: 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

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