Tort Law Negligence Notes

1 Negligence Flow Chart 1) Is there an existing Duty of Care? a. Does the case fall into an existing category? i. existing categories> if yes, then DoC applies, proceed to p. 6: -physical harm to property or ppl: (Donoghue, Dorset, Kamloops) -affirmative action (can include non-feasance, Crocker, Childs) -rescuers (Horsely) -duty to warn: manufacturers (Dow); doctors (Reibl) -psych harm (ltd in application > Mustapha, Devji) -pure economic loss: neg misrep; neg service; dangerous products; rel economic loss; govt liability (Hedley, Hercules) -no single or unifying characteristic> each new rels must be examined on its own ii. If no: proceed to step 2 2) Addressing novel claims: (Anns/Kamloops/Cooper) 1. Is there a sufficiently close relationship bw the parties? a. Reasonable forseeability: is it conceivable to D that their conduct could harm P? -Donoghue: neighbor principle: reasonable care to avoid harm that is reasonably foreseeable - Palsgraf, Home Office: DoC found beyond traditional rels, based on foreseeability of harm b. Proximity: factual closeness; acts as a limiting principle i. Is there a sufficient proximity bw the P and D to impose a DoC? -relational proximity> Donoghue: neighbor> persons directly affected by act that they are reasonably w/in contemplation of D -social, circumstantial, causal, proximity -other factors: representations made, expectation and reliance, existence of stautrory obligations (Odhavji) ii. Are there any micro policy concerns relating to proximity/rels that suggest limiting the recognition of DoC? 2. Are there any macro policy concerns to suggest limiting finding of DoC? (Kamloops/Cooper) -analysis of the effect on the legal system and society in general (not concerning rels bw parties) -is govt acting judicially? (scope of duty) -is an insurance scheme created where one is not warranted? (scope of DMs) -is there a high cost (scope of DMs)? -would indeterminate liability be created? (floodgates concerns; relates to scope of class of persons owed DoC) -is there frustration of parliamentary intent? -is there any relevant statutory concerns? -is there denial of essential public services? 2 -is another field of law more appropriate resolution to the matter? Is there already an est legal remedy? -is there a lack of evidence? 3) Is the Standard of Care breached? -what would a reasonably prudent person do in similar circumstances? a. Potential Limiting Factors: i. Probability of Harm -risk must be probable, not possible (Bolton) -greater the risk associated; the higher the standard (Bolton) ii. Severity of Harm -the greater the potential harm associated with risk; greater the standard (Paris) iii. Cost of Risk Avoidance/ Remedial Measures -assessed on what steps reasonable person would take knowing gravity of consequences and P's circumstances: failure to take precautionary measures to avoid injury may be unreasonable where the risk harmed to P is serious (Paris) -learned hand formula: if probability of harm and seriousness of loss outweigh cost of remedial measures, then failure to adopt measures will be seen as breach of SoC (Rentway) iv. Social Utility/Value of Conduct 1. D may be excused if the value of actions are socially important> e.g. emergency situation> lower standard (Watt) b. Assessment of Reasonableness that Informs SoC: - objective analysis: reasonably prudent person in D's field of trade (but does not take D's subjective qualities into account) -is context contingent (Warren) -the following indices inform but do not solely determine SoC: i. custom of trade: -typically used by Ds to attempt to negate SoC - informs SoC> to apply it must be reasonable, apply to the context (Warren) -likewise, failure to meet does not = breach if circumstances where unusual, custom is inconsistent, uncommonly used or unreasonable > (Brown; Warren; Waldick) ii. statutory standards: -P must show that i) D violated statute; ii) statute applies (both thru scope of persons and context/accident) (Gorris) -standard must be reasonable to apply (Sask Wheat) -compliance w/statute will likely only negate liability if statute is specific, not general (Ryan) iii. professional standards: -higher standard is applied to those advertising as having a special skill 3 -lawyers: need only act in accordance w/general practice unless practice is inconsistent w/prudent precautions against a known risk (Brenner); only liable for unreasonable mistakes (Folland) -doctors: a reasonable; prudent and diligent doctor in the same area of specialization; if professional standard is unreasonable or fraught w/risks, D is held to higher SoC (Ter Neuzen) c. Special Standards of Care: -modified objective standard: reasonable person in D's circumstance i. Children -mixed 2 part test: (Heisler) i) determine if child is capable of negligence based on their age, capacity, etc. (subjective) ii) assess if child was negligent and to what degree based on comparison if D exercised the same care expected of a kid of that age/ intelligence/ experience (objective)? -if undertaking an adult activity, they will be held to an adult standard (Pope; Nespolon) ii. Mentally ill -held to the standard of a reasonable person with that same disability -strict liability does not apply (Fiala) -to negate liability, D must show they lacked either: (Fiala) 1) capacity to understand DOC owed 2) volition- no control over their actions 4) Causation -did D's breach of SoC actually cause the loss (DMs)? -factual causation> bw D's conduct and P's injury (objective) -legal causation> addresses remoteness and proximity; limits factual causation a. But For Causation: -traditional approach -if harm would have occurred despite D's actions, causation not est -BoP rests w/P (Snell) -need only be de minimis range; not ltd by non-tortious acts (Athey) b. Exceptions- Causal Indeterminacy (when but-for does not apply): i. Inferring causation: -causation can be inferred when there is an absence of evidence by D (but does not shift BoP) (Snell) ii. Material contribution test: -in instance of evidentiary gap, where it is impossible to determine on the evidence if it was actually the D's conduct or some other factor (Walker Estate) -applies if D contributed to harm, played a role outside de minimus range 4 iii. Multiple wrongdoers: -where it is unclear which D caused harm, cts will apportion liability (Cook) -BoP shifts to D c. Legal Causation: Remoteness of DM -is the consequence reasonably foreseeable? -D is only liable for DMs which were reasonably forseeable (Wagon Mound) and those which have a -proximate connection bw negligence and DM -concerns facts of particular case -acts as a way of limiting expansive DoC -often assessed based on judicial policy, institution (Osbourne) -factors: foreseeability, probability, seriousness, degree, financial status of parties (Klar) - possibility: looking at sequences of events; ask was each step foreseeable (Assiniboine School) -type of injury need only by foreseen, not extent of DM or exact manner of occurrence (Hoffer, Hughes, Saanich, Assinboine, Lauritzen) -exception to remoteness: thin skull rule: -as long as SOME physical injury to P was foreseeable, D is liable for all consequences arising from P's unique physical/psychological makeup (Bishop) -exception> psychiatric harm: assumed reasonable fortitude (Mustapha) -crumbling skull rule: -opposite of thin skull, asserts remoteness in assessment of DMs (does not negate liability) -goal is to unjustly enrich P but only return them to original position -assume thin skull, D may refute w/crumbling skull> must prove high degree of inevitability of DM based on already manifested injury, that DM would have occurred independent of D's negligence (Athey) -NAI: -intervening can serve to negate liability of original act if it was not reasonably foreseeable; if it is not w/in risk of 1st act (Bradford) -ct is wary of applying (Smith, Goodware, Stansbie) -typically used to apportion DMs, not excuse liability 5) Defences -focus is on Ps conduct that may limit or exclude Ds liability -cts typically very wary of complete defenses (VAR, illegality) and prefer contrib negallows apportionment according to fault, based on desire for deterrence i. contributory negligence -P is partially responsible for their injuries: -P caused accident -P put themselves in way of D's foreseeable harm -P failed to take protective measures - results in apportionment of DMs bw P and D -arbitrary, lenient bc of lack of 1st party insurance

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