Duty of Care: Onus: Plaintiff

Is D under any legal obligation to exercise

care for P under the circumstances?

Recognized category
Is there a duty of care?

Prima facie DOC

Generally...
Affirmative Action

N
Novel category
Misfeasance
(Positive acts)

Nature of realtionship

Relationship of proximity

Affirmative Duties
(Special Duties)

Foreseeability of harm

AND

Foreseeable risk of injury

(Moule, Amos)

Policy reasons that negative or limit: (a) scope

of duty; (b) class of persons to whom it is
owed; (c) damages arising out of a breach
(*Onus on D)

Worsening of P
situation

Foreseeable plaintiff
(Palsgraf)

AND

D conduct gave rise

to DOC

Neighbour:
persons closely and
directly affected by act
they D ought reasonably
to have them in
contemplation
(Donoghue v Stevenson)

Duty to control conduct

of others

Y
DUTY OF CARE
ARISES

Relationship of
economic benefit
No special
relationship

Relationship of
economic benefit

NO DUTY OF
CARE

Induce reliance to P
detriment

Y
Y
Cooper v Hobart Test: Clarification of Anns

DUTY OF CARE
ARISES
N

NO DUTY OF
CARE

N
NO DUTY OF
CARE

Duty to perform
gratuitous undertakings

Relationship of
supervision or care
Y

Deny other rescue

See Jane Doe v. Police

Duty to rescue
(Matthews v., Horsley v. McLaren)

N
DUTY OF CARE
ARISES

Y
Relationship of
proximity

Relationship of
supervision or care

Relationship of
supervision or care

NO DUTY OF
CARE

DUTY OF CARE
ARISES

Duty owed to P as
member of class of
persons
foreseeably at risk
(not individual P)

Palsgraf Foreseeable P test

OR

Duty to prevent crime &

protect others

Nonfeasance/
ommission
(Failure to act)

DUTY OF CARE
ARISES

N
NO DUTY OF
CARE

Intoxication: In economic
relationships, there will be a duty to
prevent intoxicated P from engaging
in potentially harmful activities
(Crocker, Jordan House) and duty
will extend to person who might be
injured by Ps behaviour (Stewart).
There is no social host liability
(Childs) because it fails at the policy
stage of Anns/Cooper

Y
DUTY OF CARE
ARISES

Undertaking
performed

N
NO DUTY OF
CARE

There may be a duty to continue to a past

gratuitous undertaking until notice given
that practice will change (Morash)
If person undertakes to perform a
voluntary act, he is liable if he performs it
improperly, but not if he neglects to
perform it at all (Soulsby, Skelton)

Wrongful birth
(mother)/Wrongful life
(child)

Duty of Care, cont.

Wrongful pregnancy

Pre-natal injury

The Fetus

Duties to secondary victims

Failed abortion

Failed sterilization

Pre-natal injury

Fetal injury

Mother may recover

damages for pain and
suffering of unwanted
pregnancy and birth
(McFarlane)

After birth, child

may sue

Careless failure to
inform of risks
Rescuers

Principles of Dr duty to
inform of risk
Pre-conception
wrongs

Duty of care to a rescuer will arise if D is

responsible for the situation of peril that
causes the rescuer to act
(Horsley v McLaren)

Action against parent that

detrimentally affects
subsequently-conceived child

The rescuers actions must be

reasonable but not perfect. Allowance
will be made for actions in emergency
situations (Corothers v Slobian)

Includes things like exposure

to chemicals that causes
damages to eggs or gametes
Should parental knowledge of
potential risk bear on D
liability?

The defence of voluntary assumption of

risk will not apply where P consciously
faces a risk in order to rescue 3rd party
imperiled by D negligence (Urbanski)

Child may sue for

injury

Damages for incremental

amount of cost of raising
disabled child
(Arendt, H(R) v Hunter )

3rd parties more

liable

Healthy child: Courts

unwilling to award damages
for healthy children, but may
award incremental costs of
raising disabled child

Childs claims (wrongful

birth): significant policy
issues; courts are unwilling to
say that no life is better than
a disabled life -- analogous
to euthanasia discussions
(see e.g. Rodriguez)

Prima facie DOC

may exist

No DOC for
pregnant woman
to fetus

Pregnant women: Policy

considerations overcome
prima facie DOC for mothers:
intervention conflicts with
autonomy, bodily integrity of
woman too greatly and
changes are domain of
legislatures not courts
(Dobson, DFG)

Nervous shock
Vanek, Mustapha
Reasonable foreseebality
of psychiatric injury
Y
P of normal fortitude and
robustness
Y

Psychiatric damage =
recognizable
psychiatric illness

Grief, sorrow,
reactive depression

DUTY OF CARE
ARISES

NO DUTY OF
CARE

P will be considered foreseeable

if nervous shock resulted from:

Relationship of proximity to
event which caused shock

Physical injury or fear for

personal safety

Relationship (close ties)

Witnessing aspect of
serious accident involving
relative
Trauma of rescuing victims
of serious accident

Time & space

Bourhill foreseeable P test

Hear/see event or
immediate aftermath
unmediated
Alcock/White proximity test
It was not necessary to
address the proximity issues in
Mustapha because the claim
failed at normal fortitude and
robustness, however Rhodes
recalls us that PROXIMITY is
also a part of the 1st stage of
establishing DOC

Other duties

Disclosure
of medical
risk

Consent not
vitiated in CL, but
by statute in some
jurisdictions

Material risks
Small % of serious
consequences

Independent duty
to inform risk

High % of minor
consequences

Non-material risks
Consequences of
particular concern
to P

Broad requirement
Sufficient
information to
make informed
decision
(Haughian)

P onus

N
No Liability

Procedure would
have been refused
with proper info

Liability

Standard: Reasonable patient in Ps position (Riebl v Hughes)

Continuous duty

Manufacturer
duty to warn

Reasonably
communicated
Clearly describes
specific dangers

Final consumer
Some evidence
of risk

Breach in case
of failure
Learned
intermediary
(exceptionally)

Causation
The factual connection between Ds breach and
Ps loss

Standard of care
The negligence issue of a negligence action

Stage 1:
What SOC was
expected of D

Reasonable person at
the time and in the
circumstances of D

Legal question
Reasonable person:
of normal intelligence
who makes prudence
a guide to conduct;
conduct is guided by
considerations that
general regulate the
conduct of human
affairs (Arland).

Factors to consider
Probability or severity of harmconsidered at time of breach
(Bolton)

Test: Foreseeability +
probability of harm + cost of
precautions

Gravity of any loss or harm

(Paris v Stepney)

Characteristics of P may be
important in the circumtances

Social utility & public policy

(Miller, Watt)

Leeway in emergency situations

(Priestman, Watt)

Cost of risk avoidance

(Vaughan v Halifax-Dartmouth)

If cost is reasonable,
expectation steps be taken

Burden of precaution to
decrease risk

Reasonable measures at time

of injury (Ter Neuzen)

Loss/injury caused
by Ds breach of
SOC

Stage 2:
Has P proven D
breached required
SOC

Cause-in-fact

Factual analysis

Balance of probabilities

Liability

No liability

But-for

Y
But for Ds
neglicence, would
P have suffered
same loss?

Liability

No liability

N
The causal relationship b/w the alleged negligence and the injury must be made out
by the evidence and not left to the conjecture of the jury. Negligence of a particular
type must be linke to the causation of harm (Kauffman)

Standard practice (medical, other) not open to

action, unless theres a failure to take obvious/
reasonable precautions (Ter Neuzen)

Several causes
produce injury

Material
contribution

P has onus to prove D act materially

contributed to injury
N

Cause: de minimis
range
Significant cause
Y

No liability
Liability

Material
contribution

Court labels material

cause as significant

Walker Estate v York-Finch Gen Hosp

When can you infer

that D action was
cause of injury?
Material increase
of risk inference
of causation

P leads some
evidence that D
action was a cause
D may lead evidence
to disprove causal
connection

Court may use

common sense

Snell v Farell: McGee lessens burden on P too

greatly. Proper application of balance of
probabilities will be sufficient to discharge
burden of evidence. Scientific precision not
required, but a tie will not suffice.

Snell also says that in some case burden of

proof may shift to D in cases like Cook v
Lewis

Causation, cont: Multiple Causes

Remoteness
The legal connection between Ds
breach and Ps loss

Divisible injury

Sue Ds
individually

Foreseeability Test: If the damge was such that a

reasonable man should have foreseen, then the
damages are not too remote (Wagon Mound No. 1)

Both Ds jointly and severally

liable (Nowlan v Brunswick)

Both tortious causes

Independently insufficient
causal factors

Athey v Leonati: D negligence not required to be the sole cause of

the injury. Material contribution Is sufficient to impose full liability
Y
Material contribution
(apply test)
N

Tortious + non-tortious

Modifications of the Foreseeability Test

Causation fulfilled

D fully liable

No causation

D1 liable for whole extent of

first injury
Indivisible injury

Both tortious causes

Successive

Independently sufficient
causal factors

D2 only liable for damages

caused after first injury
Baker v WIlloughby

Tortious + non-tortious

D liable for damages up to the

point of subsequent injury
(Penner v Mitchell)

Non-tortius + tortious

D liable for damages resulting

from tortious act
(Dillion)

Both tortious causes

Both Ds jointly and severally

liable

Tortious + non-tortious

Tortious D not liable, except

for damage in excess of nontortious cause

Simultaneous

Modified objective test in causation analysis in medical context:

Would a reasonable patient in Ps position have undergone procedure
had they been warned? If yes, no liability. If no, liability
Look at ascertainable circumstances: age, socio-economic status, etc.
Look at subjective beliefs and fears, as long as they are reasonable
and not irrational
(Arndt v Smith)

Crumbling skull rule is part of causation analysis: Recognizes that the pre-existing condition
was inherent in the plaintiffs original position. The defendant need to put the plaintiff in a position
better than his or her original position. (Athey v Leonati)
From Chandler: Crumbling skull can be viewed as a matter of causation - i.e., person was going to
suffer injury x anyway, so D didn't cause that portion. Basically - D doesn't have to put P in a better
position than P would have been in. Usually crumbling skull deals with situations where there is a
definitive progressive deterioration that would come about in any event, and D does something that
would also have produced the deterioration. Of course if D does something to speed it up or make
it worse, that is a different story.

Type of injury: The manner of occurrence does not

have to be foreseen, just the general type of
consequence (Hughes v Lord Advocate)
Thin skulled plaintiff: D must take P as he finds him.
So long as the loss is foreseeable, D will be
responsible for the severity of damages arising out of
Ps pre-existing condition (Smith v Leech Brain). Also
applies to eggshell personality (Marconato)
Possibility of injury: The test for foreseeability of
damage becomes Q of what is possible and not what is
probable. The extent of the damage and its manner of
incidence need not be foreseeable if physical damage
of the kind which in fact ensures I foreseeable. The
ambit of foreseeable damage is indeed broad
(Assiniboine South School v Greater Winnipeg Gas)

Intervening
causes
Within the scope
of risk test
D act created
zone of risk
where possibility
of intervening act
existed

Did an intervening act break the chain of

causation, or was the injury reasonably
foreseeable consequence of the original act
of negligence?
Every tortfeasor causing injury that requires
P to seek medical help must assume the
inherent risks of complications, bona fide
medical error or misadventure, if they are
reasonably foreseeable and not too remote.
It is for D to prove that some new act
rendering another person liable has broken
the chain of causation (Papp v Lecler)

Defences in negligence

P:
Enter carelessly
into a dangerous
situation
Contributory negligence
(Walls v Mussens,
Gagnon v Beaulieu)

D has onus to prove

Contribute to
accident

2. P negligence
worsened injury

Contribute to
ones own harm

Voluntary assumption of
risk
(Dube v Labar)

Express or implied
agreement b/w parties
that there will be no
responsibility for injury

Court will apportion losses;

higher damages to party with
primary responsibility for
preventing negligence
(Mortimer v Cameron)

1. P was negligent

Gagnon v Beaulieu

There has been a clear

waiving of the right to
sue

Ex turpi causa

Participation in criminal
(or immoral) act

Complete defence

Inevitable accident

Precautions taken by a
reasonable person would
not have prevented the
accident

Complete defence

Complete defence; no
liability

Liability

Assessment of damages
The thing I will hire someone to calculate for
me, lest I go crazy

Mitigation
Punitive: rare in negligence
Nominal: unavailable (no injury)

Special
Measurable losses at trial time

1. P must take all

reasonable steps
to avoid or
minimize loss

2. P may recover
for losses incurred
in taking
reasonable steps

3. P cannot recover for

losses successfully
avoided, even if not
reqd to avoid them

See Janiak v Ippolito: if P does not take reasonable steps to mitigate,

damage award will be reduced by amount of failure to mitigate
Compensatory
Return P to pre-tort status

What is required
on a monthly
basis?
Cost of future care

Pecuniary:
Quantifiable
(Andrews)
Loss of future
income/earning
capacity
General:
All pre-trial nonpecuniary losses and
all post-trial losses

Non-pecuniary:
Non-quantifiable
(Andrews)

Calculate reasonable est.

of P future earnings based
on evidence of earning
potential

Pain & suffering

Profile P avg. mo/ly future

career earnings based on
occupation, historic rates
of increase, actuarial
tables (if nec.)

Loss of amenities

Determine length of P
work life, multiply by...

Loss of life
expectancy

Loss of enjoyment

One sum to cover all n-p

damages;
$300,000 around the
upper limit except in
exceptional
circumstances

Reduce amount for

contingencies
Reduce overall amount of
lost capacity to account for
duplication in future care
award (i.e. daily life costs)
Capitalize determined
amount
No tax gross up, but
potentially for mgmt fees

What is likely
duration of care

Reduce time for

possible
contingencies
Capitalize
determined
amount
Court determines
lump sum,
grosses up for
income tax,
management fees

What is reasonable care given

to P? (Andrews)
Include expenses P would
normally incur (food, rent, etc)
May use stats to determine
(e.g. life expectancy)

Improving, deteriorating, sudden

death, sudden recovery, need for
hospitalization
With prudent investment will produce
monthly amount reqd over duration
and will self-extinguish

Establish stat probability.

Speculative exercise