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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)
1 -- ARE THE P & D IN A RELATIONSHIP THAT HAS ALREADY BEEN IDENTIFIED AS GIVING RISE TO A DUTY OF CARE?
Pre-existing category
Rivtow Marine
Use that case's test for duty 2 -- DOES THE RELATIONSHIP B/W P & D JUSTIFY IMPOSING A DUTY?
Reasonable reliance
Negligent misstatement
Donoghue
Healey
Hercules Mgmt
Martel Building
Physical closeness
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
Unlimited liability
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
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
P themselves
Someone else
Primary
Secondary
Duty = novel category If "recognized" is an issue, cite Mustapha -- only has to be "mental injury"
RF of recognized PI in person of OF
Proximity
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
Substantial risk
Cost of Precautions
High
Low
LIABILITY
NO LIABILITY
LIABILITY
Wagon Mound 2
Wagon Mound 2
Needs to be reasonable
Custom
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
Barnett
BUT FOR
Athey
Ferrell
Hanke
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
Novus Actus
Type can be described as narrow or broad Narrow - eg. "injury by burning caused by explosion"
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
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