OTHER CATEGORIES - NO DUTY nonfeasance (Childs v Desomeux) - NO DUTY pregnant mother to unborn child (Dobson v Dobson) - DUTY 3rd

parties to unborn child if damage was RF (Duval v Seguin) - DUTY to rescuers if rescue was RF, even if no duty owed to person being rescued (Haynes v Harwood; Horsley v MacLaren) - DUTY can be owed to a class of people. P can enter this class at any time during the negligent action (Wellbridge Holdings)

COOPER v HOBART TEST FOR DUTY

1 -- ARE THE P & D IN A RELATIONSHIP THAT HAS ALREADY BEEN IDENTIFIED AS GIVING RISE TO A DUTY OF CARE?

Gov't-wide liability for roads

Pre-existing category

Novel category Property rights RF of injury

Rivtow Marine

Duty to warn of risk of danger

Use that case's test for duty 2 -- DOES THE RELATIONSHIP B/W P & D JUSTIFY IMPOSING A DUTY?

Reasonable reliance

Expectations Proximity Look to relevant statutes

Physical harm to person/property through actions

Nervous shock Primary Victims

Negligent misstatement

Relational economic loss

Donoghue

Healey

Hercules Mgmt

Martel Building

Physical closeness

Owe duty of care to neiighbour

RF of 'recognized psychiatric injury' in a person of OF 1. Are the parties proximate enough so that damage was RF?

Person closely & directly affected by your actions such that you could RF them being injured

REL only actionable if: - real joint venture with property owner - P has possessory/ proprietary interest in property - general average contribution in admiralty

Distinction between govt policy & execution of policy 3 -- POLICY REASONS TO NEGATE DUTY? Effect on legal system

P can argue Mustapha -- does not need to be recognized psychiatric illness -- only above annoyance, disgust, etc.

A. Could you RF reliance by the P? 5 indicators: i. D has a direct or indirect nancial interest in the transaction ii. D was a professional or has special skills iii. Advice was provided in course of Ds business iv. Advice was given deliberately v. Advice was given as a response to an inquiry

B - Was the P's reliance reasonable?

Unlimited liability

Effect of society & govt

Effect on other areas of law

PRIMARY vs SECONDARY VICTIMS - Determined on the basis of who the risk is directed at - If YOU are the target of the risk - primary - If SOMEONE ELSE is target of the risk secondary - need to prove proximity

2. Policy considerations Negligent Misstatement Misc:

- Not restricted to professionals (Queen v Cognos) - If there is a disclaimer, there cannot be liability even if there is a duty (Hedley) - "Unreasonable reliance" by the P goes to reducing their damages, not negating the duty (Grand Restaurants) - If there is a K b/w the parties, the duty must be proven independently of the breach of K (Central Trust) - You cannot sue in tort to get around an exclusion clause that prevents P from suing in K

Negligent Provision of Services - Not a recognized category of duty in Canada - But, has been recognized in UK (Henderson) - Run through C/H 'novel' - Use Hedley "special relationship" factors to establish proximity

Hedley factors: - P relied on D's advice to his detriment - P's reliance was reasonable - D knew or ought to have known about P's reliance

i - D knows identify of P (specic or closed class) ii - P uses the statement for its intended purpose

SECONDARY VICTIMS OF PSYCH INJURY - Treat as C v H novel category - RF = RF OF PI - Proximity = Alcock factors (determined on principled basis - Tame) - Policy = C v H factor

- Some relationships always special: doctors, lawyers, bankers - More likely to nd special relationship if D is a professional

PSYCHIATRIC INJURY

Is P a Primary or Secondary victim?

Who is the risk directed at?

P themselves

Someone else

Primary

Secondary

Duty = established category (Mustapha)

Duty = novel category If "recognized" is an issue, cite Mustapha -- only has to be "mental injury"

RF of recognized PI in person of OF

RF of recognized PI in person of OF Relationship

Determined on a "principled basis" Tame

Proximity

Time & space Sensory

Policy (C v H)

Foreseeability of Damage

Res Ipsa Loquitur - Dead in Canada (Fontaine) - Trier of fact weighs circumstantial evidence w/ direct evidence to determine if P has made a prima facie case of negligence against D - If so, there is a tactical shift of burden onto D to negate P's evidence Foreseeable

Bolton Unforeseeable

NO LIABILITY

Probability of Injury

Bolton

Bolton

Small/ innitesimal risk

Substantial risk

IF injury would be very severe, liability no matter what the cost

Cost of Precautions

High

Low

LIABILITY

Cost of precautions is irrelevant

NO LIABILITY

LIABILITY

Wagon Mound 2

Wagon Mound 2

But if D took some precautions, can speak to no breach

Sometimes whole custom is neg. - no excuse

Needs to be reasonable

Custom

An accepted medical practice can be negligent if it is "fraught with risks"

TJ Hooper

Trimarco

Ter Neuzen

Compliance w/ a statute - Does not mean that they did not breach SoC, but evidence (Trimarco) Breach of statute - Not an actionable tort in itself, but evidence that D breached SoC (Sask Wheat Pool) Social Utility Watt

SPECIAL STANDARDS OF CARE: Children (R v HIll, dissent) - Babies = no standard of care, cannot be liable - Young adults = objective standard, liable - Kids in between = what is reasonably expected of a child at same age, intelligence, experience Kids Engaging in Adult Activity (McErlean v Sarel) - Where a child engages in adult activity (eg. driving), they will be held to same standard as an adult engaging in that activity - Experts = standard of an expert - Beginners = standard of someone reasonably skilled in that activity - Physicians = standard of average practitioner in that specialty - Insane episode

FACTUAL CAUSATION

If the facts are clear & undisputed

If you don't know what happened (scientic uncertainty)

Barnett

BUT FOR

2 tortfeasors, one of whom denitely did it

>2 potential tortfeasors

If neither of those work

In case of duplicative or preemptive causation

Both are liable

Robust & pragmatic common sense inference

Material contribution to risk

Athey

MATERIAL CONTRIBUTION TO INJURY

Cook v Lewis; Brant Hospital

Ferrell

Hanke

Keep in mind independent intervening tortious events

Throw a hail mary: Argue a Sindell apportionment approach if the D has a substantial market share & cannot prove that they did NOT manufacture product

Apportionment for independent intervening events (Sunrise)

Property damage Personal injury (Jobling) Event 1 Tort Tort Event 2 st Tort or Not tort -- no diminishment of damages for the 1 tor3easor Tort no diminishment of damages Not tort diminishment of damages

REMOTENESS LEGAL CAUSATION

Hughes v Lord Advocate

D is liable for the TYPE of damage which was RF

Novus Actus

Type can be described as narrow or broad Narrow - eg. "injury by burning caused by explosion"

Were the actions of the person RF?

Broad - eg. "injury by burning" "Mother test" Hughes Bradford

Doughty

RF is determined by Mother test: if you ask your mother if you should do what you're doing, would she say "no because the [type of damage] will happen"?

Bradford

If P suffers further damage as a result of an RF type of injury, then the D will be liable for that further damage -- thin skull rule (Smith v Leech Brain; Stephenson v Waite), even if the further damage is psychological (Cotic v Grey)

Defences

Contributory negligence

Voluntary assumption of risk Froom v Butcher: - if damage would have been the same regardless of CN = no reduction - if damage would not have occured without CN = 25% reduction - if damage would have been "considerably less" without CN = 15% reduction

Injury as a result of illegal act

Negligence Act allows apportionment of damages

All-or-nothing defence

All-or-nothing defence

S.3 -- if contributory negligence on the part of P is found, the court shall apportion damages in proportion to the degree of fault of each of the parties

Dube v Labar 2-step test: 1. D must prove that there was a physical risk of P being injured, & P understood the physical & legal risk 2. P voluntarily accepted risk - Can be implied if P&D are in joint venture (Priestley) Hall v Hebert

S.4 -- if it is not possible to determine the degree of fault, parties shall be deemed to be equally at fault

Lambert v Lastoplex -- Duties of Manufacturers S.6 -- degree of fault of the parties is a question of fact for the jury

P NOT allowed to recover if: - It would introduce inconsistency in the fabric of the law: - Allowing the P to prot from an illegal act - Allowing P to evade a criminal punishment P ALLOWED to recover if: - Claim is merely for compensation for damage caused by D's negligence

S.7 -- Where the damages are caused by the fault of more than 1 party, the court has the power to direct that the P shall bear some portion of the costs if the circumstances render this just