FALL TERM OUTLINE
I. INTRODUCTION TO EXTRA-CONTRACTUAL OBLIGATIONS
II. FAULT & THE OBLIGATION TO TAKE CARE
The Obligation to Act with Care
CL Donoghue v Stevenson
Facts: Woman found a snail in her ginger beer. Her friend bought it for her, so she was not part of a K. Was not possible to
inspect contents before drinking it. Got sick. Sued manufacturer.
Issue: Did the manufacturer owe the consumer of the ginger beer a duty of care?
Holding: Yes.
Reasoning: There is a general principal underlies all previous cases when a duty of care is owed (so Lord Atkin doesn’t see
himself as changing the law, just clarifying.) The neighbour principle: you owe a duty of care to anyone who you could have
reasonably foreseen would be harmed by your act/negligence. Anyone “so directly and closely affected by my act that I should
have had them in contemplation.”
Ratio: A manufacturer owes a duty to take reasonable care that the consumer’s life or property is not injured by use of their
product.
Comment: Made common law negligence more similar to the civil law. The next 80 years of common law negligence law
have been judges trying to figure out how to interpret this. Phrase “life or property” limits claims – can’t be pure economic
loss.
Code Napoléon:
1382. Whosoever, through his act, causes damage to another by his fault is obliged to repair the damage.
 Contains both intentional and unintentional fault.
 Does not specify what kind of damages.
 Owed to everyone.
 Specifies the breach of duty, but not what the duty is in the first place.
CCLC Articles:
1053. Every person capable of discerning right from wrong is responsible for the damage caused by his fault to
another, whether by positive act, imprudence, neglect or want of skill.
 Only certain people are liable.
 Specifies that it can be a positive or negative act.
CCQ Articles:
1457. Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstances,
usage or law, so as not to cause injury to another.
Where he is endowed with reason and fails in this duty, he is responsible for any injury he causes to another person
by such fault and is liable to reparation for the injury, whether it be bodily, moral or material in nature.
He is also liable, in certain cases, to reparation for injury caused to another by the act or fault of another person or
by the act of things in his custody.


Includes duty to take care (fault-based) and strict duties (no-fault).
Everyone has a duty, but only those endowed with reason can be found liable for a breach of duty. You can
still be at fault, but are not liable for the fault.
To prove negligence under both D v S and 1457, you need:
 Fault
 An injury (damage)
 Causation
 Duty of care
 Relationship to other sources of liability
 Capacity
The Meaning of Fault
DC Labelle v Gatineau
Facts: 8-year old kid was playing in a garbage dump owned by the city of Gatineau, fell into fire. Employees knew kids
played in dump. Had a “no trespassing” sign. Had a fence, but it wasn’t high enough or well-maintained.
Issue: (1) Was the dump an attraction to children? [foreseeability!] (2) Did the municipality take adequate measures to prevent
children from gaining access?
Holding: (1) Yes. (2) No. Therefore the city is liable.
Reasoning: They should have foreseen the accident and taken reasonable steps to discourage children like having a proper
fence – sign is not enough because the dump is an attraction to children.
Ratio: Anyone maintaining a hazard that is an attraction to children must take reasonable steps to prevent their injuries.
DC Oeuvres des terrains de jeux v Cannon
Facts: Girl was playing around an ice rink, slips and injures herself. Employees saw girl playing, didn’t tell her to stop. Father
sues the owner of the ice rink.
Issue: Is the ice rink liable?
Holding: No
Reasoning: The path the girl slipped on led from the rink to the chalet. It had to be covered in ice for skaters. Hazard was
necessary.
The employees are not at fault for not telling the girl to stop playing because a bon pere de famille (reasonable person) would
let their child play there. Risk of playing on path and slipping was no greater than that of skating on the rink.
Ratio: The test for how a reasonable person /bon père de famille would have acted involves balancing risks and rewards
Comment: Difference between Labelle: Ice rink was run by a charitable organization vs. dump run by the city. Not part of
reasoning, but this probably influences judges.
Viney, Les conditions de la responsabilité:
 The civil law doesn’t have "torts” – just sanctions for breaking the obligation of conducting yourself
according to the social norm – prudently and diligently. If you don’t meet this standard, you are at fault.
 Judge can determine what the person should have done two ways:
o In abstracto: refer to a predetermined model of conduct and then look at the situation of the person
being judged. In absence of a specific text, standard is the “bon pere de famille.” But can vary
according to situation ie: “reasonable doctor.”
o In concreto: look at all the facts of the case, including the character and aptitudes of the person being
judged, then analyze their actions.
 Facteurs d’inferiorite: age, physical health, psychological health, religious/philosophical beliefs. Courts
really only consider age, psychological health. Physical health can add more liability (have to know your
capacities, act within them).
 Facteurs de superiorite: capacities, abilities, personal knowledge. People with more of these (ie: doctors)
held to a higher standard.
CL Bolton v Stone
Facts: Woman hit by a cricket ball while standing on a highway outside her house. Brought a suit against the cricket club,
which had been there since 1864. Other people testified that balls occasionally went into the neighbourhood or onto the road.
Issue: Was the cricket club negligent in failing to ensure wayward balls did not injury anyone?
Holding: No
Reasoning: While it was reasonably foreseeable that this kind of accident would happen, the chances of it happening were
really small. Also the probable extent of the injury is really small (usually ball would just fall on the lawn). People must guard
against reasonable probabilities, not fantastic ones. A reasonable person would not have felt obligated to stop playing or build
a bigger fence.
Ratio: The test for foreseeability involve considering both (1) if something could reasonably happen (2) the probability that it
would actually happen.
Comment: Same judge says the opposite thing in Wagon Mound case.
CL Overseas Tankship v Miller Steamship (Wagon Mound 2)
Facts: Overseas Tankship were working on Wagon Mound (their ship.) They were carelessly letting oil spill out of the ship
into the water, and it drifted throughout the harbour. Some of the oil caught fire, Miller Steamship’s vessel was damaged.
Established that it was extremely unforeseeable that oil on the water’s surface would catch fire.
Issue: Was Overseas Tankship liable?
Holding: Yes.
Reasoning: Bolton v Stone has changed the laws on foreseeability. Used to be that something is foreseeable or not, now there
are degrees. If there is an improbable but foreseeable risk, you can neglect it if you have a valid reason (ie: too difficult). In
this case, it would not have taken a lot of effort to fix the problem (no cost, financial or otherwise to modify behaviour). Also
damage occurring is much greater than in Bolton. So Overseas Tankship is liable for negligence.
Ratio: When calculating legal foreseeability, you must take into account statistical likelihood, cost of prevention, and amount
of damage.
Comment: Is this consistent with Bolton or not? What would have been the cost for them to build a fence around the cricket
pitch?
Assessing the Reasonable Person Standard
Holmes, The Common Law
 Theories of liability:
o A man’s conduct is thrown upon him as the result of some moral shortcoming.
o A man is answerable for all the consequences of his acts. (Strict liability – this exists in some
jurisdictions/situations).
o Austin: main feature of law is a sanction imposed by the sovereign for disobeying their commands.
o Under the common law a man acts at his peril. Because the act was voluntary, we can hold him
responsible for it. (This has been rejected by the courts though.)
The Learned Hand Formula: Liability for negligence should be found when: Probability of injury x Magnitude of
Injury > Cost of modifying behaviour.
 Magnitude of injury actually gets figured out by the courts eventually (at least cost in $ of fixing)
 Cost of modifying behavior is harder, depends on the situation. Cost in $ of building a fence is easy. Cost of
never playing cricket again is not.
 Probability is impossible.
 Do the courts actually use this? Posner thinks though. Law has an underlying economic logic – about
maximizing wealth.
 Or is it more like the Golden Rule test (treat other’s interest as if they’re equal to your own – basic
individual rights, not economic rationale).
P Cane, “An appraisal of the fault principle”
Critiques of fault:
 The compensation payable bears no relation to the degree of fault
 The compensation bears no relation to the means (wealth) of the tortfeasor
 A wrongdoer may be held legally liable without being morally culpable and vice versa
 The fault principle pays little attention to the conduct or needs of the victim
 Justice may require payment of compensation without fault
 It is often difficult to adjudicate allegations of fault
 The fault principle contributes to a culture of blaming and discouraging people from taking responsibility for
their own lives
Fault and the Defendant’s Abilities: Experts
ter Neuzen v Korn
Facts: Doctor performed artificial insemination procedure, got HIV. At the time, it was impossible to test for HIV in Canada,
doctorwas not aware that HIV could be transmitted through AI. Doctor’s practice was in keeping with general practices across
Canada.
Issue: Is the doctor negligent, notwithstanding conformity with standard medical practice?
Holding: No.
Reasoning: Can’t look at the past with present spectacles. Doctor’s behaviour must be assessed in light of other ordinary
specialists who possess a reasonable level of knowledge, competence, and skill expected of professionals in Canada. A doctor
acting in line with practices will generally not be found negligent, because the courts don’t have expertise in those fields.
However, a common practice can be condemned as negligent if it contains obvious risks. Difference between the practice of
screening the blood (medical process) and screening people for HIV with a questionnaire (layperson can assess this).
Ratio: When a procedure involves difficult questions of medical treatment beyond the ordinary experience and understanding
of a judge or jury, it will not be open to find a standard medical practice negligent, unless it fails to adopt obvious reasonable
precautions which are readily apparent to the ordinary finder of fact.
Comment: How could the screening practice be shown to be negligent: But for test – doctor couldn’t have known about the
HIV at the time, but if they were properly screening for other STIs they would have probably caught this.
Roberge v Bolduc
Facts: Two parties had an agreement to buy property (avant contract). Vendor said they had good title of the property, notary
discovered that the bank actually owned it at one point (court judgment ruled this), sold it to the current vendor. Notary told
buyer that the previous court judgment hadn’t fixed the problem when it actually had. Buyer sued the notary. Notary said this
was standard practice.
Issue: Was the notary liable?
Holding: Yes.
Reasoning: You can still be liable notwithstanding something being standard practice. A reasonable person could determine
that this practice was negligent (the idea of res judicata – a judicial decision is final – is well known). The professional’s
obligation is diligence (not to never make a mistake, that is unreasonable).
Ratio: A professional acting consistently with common practice will still be found liable if the practice itself is unreasonable.
Fault and the Defendant’s Abilities: Children
Summary of Children and Liability:
 France: The age-dependent standard is not applied. Once you are endowed with reason (a subjective test)
you can be found liable. (Sois Sage article)
 Common Law: An age-dependent standard is applied. This is a mostly objective test (how would the reason
whatever-year old act in this situation?). You can be endowed with reason and still not be found liable
depending on your age. (McHale v Watson)

Quebec: Not entirely clear. If the act is “objectively wrongful” you are automatically at fault if you have
capacity. (Ginn v Sisson) Otherwise, the common law standard might be used, but this is not for certain.
(Gaudet v Lagace)
McHale v Watson
Facts: Watson was a 12-year old boy. He was playing with other children including McHale (9). Threw a rock he had
sharpened at a pole, it bounced off and hit McHale in the eye.
Issue: Is the age of Watson a relevant consideration in determining whether he exercised reasonable care?
Holding: Yes.
Reasoning: Negligence in a legal sense always involves an objective test (“what would the reasonable person do in this
situation” but not the idiosyncrasies of the particular person like their personality and knowledge). However, childhood is not
an “idiosyncrasy of the particular person”. The 12-year old did not have the same level of reasonable foreseeability as an adult.
Ratio: Age is a relevant consideration in determining whether reasonable care was exercised; a younger child might not be
found negligent if their ability to foresee was lowered due to age.
Comment: Unclear in this decision if we are looking at that particular child or an average child of that age. We don’t look at
particular adults ever. Average child of that age is more like the test we apply to adults in the case of doctors and other
professionals.
Ginn v Sisson
Facts: A boy (6) was throwing rocks at a school bus sign. One hit a young girl, injuring her.
Issue: (1) Did the boy have the capacity to judge that his actions were wrong? (2) Is he liable? (3) Is his father vicariously
liable?
Holding: (1) Yes. (2) Yes. (3) No.
Reasoning: There is no strict age in the civil law when children become responsible. If the individual child knows the act is
wrong, then they can be at fault. The boy here said he knew his father would have punished him if he had seen him throwing
rocks so he was endowed with reason. This was an objectively wrongful act, so if someone had capacity, they are
automatically at fault. There is a presumption of liability against the parent, but the father here successfully proved he had
properly educated and supervised the child.
Ratio: (1) In the civil law, any child who can discern right from wrong can be liable. (2) To avoid vicarious liability, parents
must educate their children to act responsibly, but are not required to monitor them constantly.
Comment: How do you determine what an “act fautif?” is? It is still unclear if we are looking at the child’s age objectively or
not.
Van Praagh, “Sois sage”
 Dual role of parents: foster autonomy and self-fulfillment/underline sense of responsibility for self and
others.
 Children in extra contractual obligations are always problematic. A child is not “the man on the Clapham
omnibus” or the “bon pere de famille.”
 In the civil law, very young children are never held to be responsible.
 Parent and child are always potentially responsible to each other. Presumption is that they are intimately
connected, but that can be countered in an age-appropriate way.
 The idea of “objectively wrongful acts” complicates this even further.
Laws on Child’s Age and Liability:
 French law –clear: Age-dependent standard not applied. Once you are endowed with reason (this is a
subjective test) you can be found liable. Depends on the capacity of the individual child.
 Common law – clear: Age-dependent standard applied. (Mostly) objectively age-dependent. You can have
reason and still not be found liable depending on your age.
 Quebec Civil law – not clear: The acts can be “objectively wrongful” but unclear if we look at the kid’s age
objectively or not.
Fault’s Relationship to Customs & Legislation
Canada v Sask. Wheat Pool
Facts: Wheat pool operates grain elevators on behalf of the Wheat Board (an agent of the Crown that has to purchase all wheat
produced). Wheat stored in elevators are tested (10% gets an intense test, everything else is visually scrutinized. Some wheat
got infested with rusty beetle larvae, had to be fumigated. Board sued Pool, claimed they made a statutory breach (didn’t claim
general negligence).
Issue: Did breach of s. 86(c) of the Canada Grain Act, delivery of infested grain, confer upon the Board a civil right of
action against the Pool for damages?
Holding: No.
Reasoning: Court had to figure out what the rule in Canada would be on breach of statute and fault in tort.
UK Rule: There is a separate tort for breach of statute. Have to look at the intent of the legislators – did they mean to create
civil liability for breach” (Search for legislative intent is unpredictable).
US Rule: Civil consequence for breach of statute is under the law of negligence. You need to look at whether the statute intend
what it said to be adopted as a standard of behaviour. (Still looking at legislative intent).
Canadian Rule: Breach of a statute is not automatically a tort (no negligence per se), but it can be evidence of negligence (a
useful standard of conduct). General principles of negligence still apply. The way you look at legislation without getting into
legislative intent: evidence of what experts think is reasonable behaviour. Like professional standard practices. Attaches to a
class of people, imposes an increased standard of behaviour.
In this case there was no negligence. Pool did what was reasonable. Parliament didn’t say that the breach of this statute would
have a remedy in civil action.
Ratio: (1) Civil consequences of breach of statute are part of the law of negligence (not a nominate tort). (2) Proof of statutory
breach may be evidence of negligence. (3) The statutory formulation of the duty may afford a specific, and useful, standard of
reasonable conduct.
Comment: Smith thinks this test still involves looking at intent of the legislators. Judge even says something along those lines
in this case. He says the one single intent of the legislature is that the legislation is to be read AS legislation. So the role of the
judges should be looking at legislation is reasonably understood to mean. Same as is done in contract law if the contract is
silent on something.
Waldick v Malcom
Facts: Waldick was on Malcom’s premises, in a rural residential area. Slipped on ice, was seriously injured.
Issue: (1) Did Malcom fail in their duty of care under the Ontario Occupier’s Liability Act? (2) Did Waldick willingly
assume the risks of injury?
Holding: (1) Yes. (2) No.
Reasoning: Old common law standard on willingly assuming risks is the Volenti doctrine: knowing and consenting to a risk,
as opposed to merely knowing about it. If accepted, it will be a complete bar to recovery. The risks willingly assumed must be
known to the plaintiff, and from the plaintiff’s conduct and circumstances revealed, the plaintiff must have assumed it in the
sense of being prepared to accept the entire risk of injury that may result without recourse to any contribution or liability from
or of any other party. Was 4(1) of the Occupier’s Liability Act trying to change this standard?
“The duty of care provided for in subsection 3 (1) does not apply in respect of risks willingly assumed by the person who enters on
the premises, but in that case the occupier owes a duty to the person to not create a danger with the deliberate intent of doing harm
or damage to the person or his property and to not act with reckless disregard of the presence of the person or his property.”
Look at: What “mischief” was the legislation designed to cure. Past law, if something is being codified. Common law usually
has really detailed legislation to make sure the judges don’t misinterpret anything. Look at what the judges wanted, or how a
reasonable person would understand the words.
Court here assumed that this rule was reasonable, guessed the legislature was not trying to change it. So the volenti doctrine
applies here and Waldick did not fully assume the risks of injury.
Ratio: The Occupier’s Liability Act does not create a new standard for voluntary assumption of risk.
DC Morin v Blais
Facts: Blais was driving a tractor, Morin was driving behind in a car at twilight. Morin did not see the lights of the tractor (one
regulation light was not there, but all others were), swerved last-minute, hit another car and killed the driver.
Issue: Who was liable?
Holding: Both parties (contributory negligence).
Reasoning: Dissent: no link between Blais’s lack of headlight (statutory fault) and the accident.
Majority: both parties are at fault. The tractor should have had the regulation light BUT it was still visible. If Morin had been
paying attention he would have seen it soon
Ratio: Mere breach of a regulation does not give rise to liability if it does not injure anyone. But if such fault is immediately
followed by an accident which the standard was expressedly designed to prevent, it is reasonable to presume that there is a
causal link between the fault and the accident, unless there is a demonstration or a strong indication to the contrary.
Comment: The ratio implies that if there is injury caused by the breach , it does give rise to civil liability. There will be an
assumption of causation though, because the legislators tried to prevent the accident by legislating against the breach.
Summary of statutory liability:
Common law: If you don’t comply with regulations you might not be liable because there is no duty of care.
Civil law: You almost always owe a duty of care, but if there is no causation, you won’t be liable. Causation is a
much bigger deal in the civil law.
III. OTHER BASES OF EXTRA-CONTRACTUAL LIABILITY
Liability for Another’s Act: Employers
CCQ Articles:
1457. Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstances,
usage or law, so as not to cause injury to another.
Where he is endowed with reason and fails in this duty, he is responsible for any injury he causes to another person
by such fault and is liable to reparation for the injury, whether it be bodily, moral or material in nature.
He is also liable, in certain cases, to reparation for injury caused to another by the act or fault of another person or
by the act of things in his custody.
1463. The principal is liable to reparation for injury caused by the fault of his agents and servants in the
performance of their duties; nevertheless, he retains his recourses against them.
Brierley & Macdonald, Quebec Civil Law
The CCLC recognizes contracts, delicts, quasi-contracts and quasi-delicts. Delicts refer to intentional acts or omissions, quasidelicts to negligent or imprudent acts or omissions. French civil law maintains a strict distinction between these two (as in the
Code Napoléon) Québec law merges the two together (1054). The distinction is relevant in Québec in only four domains: 1)
insurance cannot be purchased to cover intentional fault; 2) punitive damages can be awarded under the Québec Charter for
delicts but not quasi-delicts; 3) exoneration clauses cannot excuse deliberate faults; 4) Tutors and curators are responsible for
the acts of their charges only in the event of gross negligence (extreme quasi-delict) or deliberate (delictual) fault. In all cases,
the underlying rationale of the CCLC continues to be fault, although articles 1056a and 1056d added no-fault administrative
schemes to deal with work-related injuries and traffic accidents. (All four observations apply under the CCQ as well).
DC Le Havre des Femmes v Dubé
Facts: The organization provided shelter and counselling to women who were victims of domestic violence. Dubé stayed there
and met with a counsellor. Counsellor convinced her to stay at her house (violation of the organization’s policies). The
counselor took advantage of her state to defraud of her of $27,000. Sued the organization.
Issue: Was Le Havre des Femmes solely or vicariously liable?
Holding: No (to both).
Reasoning: No negligence in the hiring or training the counsellor, so Le Havre is not solely liable. Conditions to invoke
vicarious liability under the CCLC: a) fault by the employee; b) an employment relationship between employee and defendant
employer; c) the fault is committed within the scope of the employee’s functions. In this case, the fraud was committed outside
the scope of the counsellor’s duties, and in contravention of explicit instructions against the sheltering of victims. Extortion
was committed solely for the counsellor’s benefit. No interest (“action being to the benefit of the employer”) or knowledge of
this by Le Havre.
Ratio: Employers are liable for acts of the employees if these acts are either: faults committed within the normal scope of the
employee’s duties, or abuse of their position if the abuse is (at least partially) beneficial to the employer. The fact that one’s
job provides an opportunity to commit a fault is not enough.
CL Ira S Bushey v United States
Facts: Drunken sailor on return from shore leave spins a valve at the drydock, causes water to rush in. Sinks ship, damages the
drydock’s structure.
Issue: Is the government, as the sailor’s employer, vicariously liable?
Holding: Yes.
Reasoning: The acts were not within the scope of the sailor’s employment, but the risk (getting drunk on shore leave) that lead
to the damage was foreseeable and linked to the sailor’s employment. The employer is responsible for the risk created by its
actions, and getting drunk on shore leave is a characteristic risk of the Navy. In the US, there is strict liability imposed for
dangerous liability: points to liability for high-risk activities.
Ratio: Employer responsible for employee’s actions if the foreseeable risk was created by their employment.
Arguments for vicariously liability:
 Deterrence. Want to give employers incentives to act more carefully (in the hiring and looking after of their
employees).
 Loss spreading. Put liability on company rather than individual. Can distribute it among many people. Risk
spread amongst everyone. An insurance argument. (Taken to the fullest extent, this would result in a
government-based mandatory insurance compensation scheme. No tort law though – New Zealand has this.)
 The deeply rooted sentiment that a business cannot justly disclaim responsibility for activates which may
fairly be said to be characteristic of its activities. (A test but also justification).
Bazley v Curry
Facts: Curry worked at the Children’s Foundation in a residential house. His job involved acting as a substitute parental
figure. Sexually abused Bazley. The Foundation had carried out a background check on C and found no reason not to employ
him. Bazley sued the foundation.
Issue: (1) Should employers be held liable for sexual assaults against persons in their care? (2) If so, should non-profit
employers be exempted from this liability?
Holding: (1) Yes. (2) No.
Reasoning: Vicarious liability is covered by the Salmond test. Asks if the employee’s acts are either: (1) authorized
by the employer or (2) “unauthorized acts so connected with authorized acts that they made be regarded as modes
(albeit improper modes) of doing an unauthorized act.” The second part of this is unclear. Court introduced a supplementary
test. First thing you look at is precedent. If there are no similar cases then reasoning should be founded on 3 principles:
(1) Explicit policy concerns based around the enterprise risk approach, aiming to balance deterrence and recourse by the victim
vs. burden to enterprises.
(2) “The fundamental question is whether the wrongful act is sufficiently related to conduct authorized by the employer to
justify the imposition of vicarious liability” If the wrong occurred due to the risk created by the employer, vicarious should be
imposed, even if the wrong was unrelated to the employer’s desires. Time and place are not enough in themselves to justify
vicarious liability - it must be possible to say that the employer significantly increased the risk of harm by putting the
employee in his position.
(3) Foreseeability is not required. The main factors to consider are: a) Opportunity afforded to employee to abuse power; b)
Whether was employee furthers employer’s aims; c) The extent to which the act is related to friction, confrontation, intimacy,
etc. inherent in the job; d) Extent of power conferred on the employee over the victim; e) Vulnerability of potential victims to
exercise of employee’s abuse of power.
In this case, the foundation is liable because it gave Curry the intimacy and power necessary to commit the tort.
Given the policy reasons behind VL there is no reason to exempt non-profits.
Ratio: (1) The second branch of the Salmond test should be interpreted with a policy-based focus, asking whether the wrongful
conduct is sufficiently related to the risk created by an enterprise to justify imposing vicarious liability. (2) Non profits are not
exempt from vicarious liability.
Jacobi v Griffiths
Facts: Griffiths worked for the Boys and Girls club. He was encouraged to cultivate trust and respect with his charges, but
only while working at Club activities. He sexually abused 2 children outside of work hours and in his home.
Issue: Is the Boys and Girls club vicariously liable?
Holding: No.
Reasoning: Majority: can’t push the test from Bazley too far, because then almost any case of sexual abuse would result in
vicarious liability. This would be bad for policy reasons (nonprofits might cease childcare and mentoring altogether). Griffith’s
position was minimally authoritative or parental. The club merely provided an opportunity for Griffiths to work with children
and there was no intimacy. Parents gave the children permission to go to his home (this was not part of his job). The seduction
occurred entirely at his house and the subsequent acts were antithetical to the club’s moral values and policy.
Dissent: The enterprise provided Griffiths with an increased/enhanced opportunity to commit the offence. Since the aim is to
be a mentor/role model, and since this relationship increases opportunity to sexually assault, it could be said that the means of
enhancing opportunity falls within the aims of the job. Act was related to intimacy inherent in the job.
Ratio: Employers are not liable if their conduct does not materially increase the risk of harm; mere opportunity is not enough
to justify responsibility.
Comment: This is kind of a “reversal” of the policy decision in Bazley. Modifies test: was the material increase due to the
nature of the job. Two views of the test: closeness of relation to job (majority in Jacobi) vs. materially increase risks (Bazley,
dissent in Jacobi.)
Liability for Another’s Act: Parents
CCQ Articles:
1459. A person having parental authority is liable to reparation for injury caused to another by the act or fault of the
minor under his authority, unless he proves that he himself did not commit any fault with regard to the custody,
supervision or education of the minor.
A person deprived of parental authority is liable in the same manner, if the act or fault of the minor is related to the
education he has given to him.
1460. A person who, without having parental authority, is entrusted, by delegation or otherwise, with the custody,
supervision or education of a minor is liable, in the same manner as the person having parental authority, to
reparation for injury caused by the act or fault of the minor.
Where he is acting gratuitously or for reward, however, he is not liable unless it is proved that he has committed a
fault.
1461. Any person who, as tutor or curator or in any other quality, has custody of a person of full age who is not
endowed with reason, is not liable to reparation for injury caused by any act of the person of full age, except where
he is himself guilty of a deliberate or gross fault in exercising custody.
1462. No person is liable for injury caused to another by an act or omission of a person not endowed with reason
except in the cases where the conduct of the person not endowed with reason would otherwise have been considered
wrongful.
In the Civil Law, a parent can be found liable for a non-wrongful action of their child. They are also presumed liable
unless the act itself is not wrongful
 Example: 3 year-old driving a car. They could not possibly be found liable for this (below the age of reason).
But the act (driving carelessly) is objectively wrong, so the parent should be liable.
Who is not covered under the second paragraph of 1460 (not gratuitous or reward)? Basically anyone getting a
salary. So babysitters are caught under 1460, school teachers are not.
DC Gaudet v Lagacé (1998)
Facts: Three boys aged 11-13 try to start a bonfire in the woods using a can of gasoline. Someone drops a flaming branch and
in the attempt to stamp it out, the can of gasoline is knocked over, causing an explosion.
Issue: (1) Are the children liable? (2) Are their parents liable?
Holding: (1) Yes, they are equally jointly liable. (2) No.
Reasoning: Children knew what they were doing was wrong, parents had warned them, so they are at fault. Each was
contributorily negligent, since their ages were all similar and they all participated in the activity to the same extent.
Their parents were presumed liable under 1459 unless they could prove otherwise. They demonstrated they were not negligent
in their supervision (children of this age don’t need constant supervision) or upbringing (didn’t tolerate dangerous objects).
Rebutted the presumption.
Ratio: Presumption of parential liability under 1459 can be rebutted by showing adequate supervision and upbringing.
Comment: The judge doesn’t explicitly address age, but seems to be saying that these 11 year-olds are liable. Might be an
(unclear) application of the common-law standard.
Common Law
 Traditional rule: no special treatment of parents. Fall under normal fault.
o Parent would have to be directly supervising the child while the child committed a tortious action –
very difficult to find the parent liable.
 So special statutory schemes are implemented.
o All make it easier to sue the parents.
o Besides that, inconsistent from one province to the other.
 Ontario Parental Responsibility Act is badly written.
o Main sections 2(1) and 2(2) focus on intentional damage to property.
o But section 10 reverses for EVERY time you sue a parent.
Why would we presume fault for parents under 1460 or a statute? Does this make sense to you as a parent or as a
potential victim of children?
 Moral argument: presumption of responsibility for your child.
o Specificity of the parent-child relationship.
o A parent would probably say that they naturally feel responsible for their own kids.
 Something like the strict liable for escaping pets. There is a fine line between dangerous pets and small
children.

Easier to prove is the onus is reversed. (Evidentially, very hard for the plaintiff to prove on their own that the
parent was at fault). More compensation.
o But under 1461 the burden of proof is NOT reversed.
 Probably for policy reasons. Don’t want to discourage people from taking care of adults with
diminished capacity.
 But don’t we want to encourage people to take care of children?
Liability for Injury Caused by Things
CCLC:
1054. He is responsible not only for the damage caused by his own fault, but also for that caused by the fault of
persons under his control and by things which he has under his care;
The father, or, after his decease, the mother is responsible for the damage caused by their minor children;
Tutors are responsible in like manner for their pupils;
Curators or others having the legal custody of insane persons, for the damage done by the latter;
Schoolmasters and artisans, for the damage caused by their pupils or apprentices while under their care.
The responsibility attaches in the above cases only when the person subject to it fails to establish that he was unable
to prevent the act which has caused the damage.
Masters and employers are responsible for the damage caused by their servants and workmen in the performance of
the work for which they are employed.
CCQ Articles:
1465. A person entrusted with the custody of a thing is liable to reparation for injury resulting from the autonomous
act of the thing, unless he proves that he is not at fault.
1466. The owner of an animal is liable to reparation for injury it has caused, whether the animal was under his
custody or that of a third person, or had strayed or escaped.
A person making use of the animal is, together with the owner, also liable during that time.
1467. The owner of an immovable, without prejudice to his liability as custodian, is liable to reparation for injury
caused by its ruin, even partial, where this has resulted from lack of repair or from a defect of construction.
Only the civil law uses the term “acts of things.”
Expansion of liability in cases where it was traditionally not easy to prove fault: industrial accidents.
 Used/exploited an existing category from Roman law.
Main issue in laws of things: which cases deserve strict liability?
1456 in more detail:
 “Thing”: only physical objects (can be pets, slaves).
 “Custody of a thing”: not necessarily ownership (stolen objects). Who has control over the thing? Common
sense.
 “Autonomous act of a thing”: This section creates a legal fiction in order to control the boundaries. Most
torts involve things ie: you stab someone with a knife, car accidents. If “autonomous act” wasn’t here,
almost all torts would be here instead of 1457. If there is someone controlling the thing, it doesn’t fall here.
And it has to be an act (ie: slipping on the stairs vs. the stairs collapsing under you).
o If something breaks in half, that’s a defect in the thing, not an act of the thing. Unless you’re not
involved at all ie: it breaks in half and falls on you without you touching it.
 “Not at fault”  presumption of fault (reversal of burden of proof, you can prove you acted with care) vs
presumption of liability (strict)

Foreseeability for causation of damage applies here (same as in Rylands v Fletcher).
Strict vs Absolute Liability (Civil Law)
 Strict liability (presumption of fault): You are liable except in the case of force majeur (act of God) or
another person (contributory negligence, consent, etc). Can’t rebut it by showing you used reasonable care.
 Absolute liability (presumption of liability): Even force majeur is no excuse. You are always liable.
 In the common law, a distinction is made, but they’re both called strict liability.
Force majeur: an extraordinary event or circumstance beyond the control of the parties, such as a war, strike, riot,
crime, or an event described by the legal term act of God (such as hurricane, flooding, earthquake, volcanic
eruption, etc.), prevents one or both parties from fulfilling their obligations under the contract. Force majeure is
generally intended to include risks beyond the reasonable control of a party, incurred not as a product or result of
the negligence or malfeasance of a party, which have a materially adverse effect on the ability of such party to
perform its obligations, as where non-performance is caused by the usual and natural consequences of external
forces (for example, predicted rain stops an outdoor event), or where the intervening circumstances are specifically
contemplated.
DC Shawinigan Carbide v Doucet [1909] CCLC
Facts: Doucet worked for Shawinigan Carbide, operated a furnace. It exploded and Doucet was gravely injured. Unclear what
the cause of the explosion was.
Issue: Is Shawinigan Carbide liable?
Holding: Yes,
Reasoning: Fitzpatrick (ratio): 1054 should be interpreted as creating a presumption of fault against the owner of the thing
(new interpretation of it, but harmonizes it with the Code Napoleon and CCLC’s treatment of liability for acts of animals).
Furnace was under control of Shawinigan Carbide, since they operated it for their own benefit and profited from the risks
created thereby.
Idington: Makes an evidentiary shift. When we can’t prove fault, but given the facts it is obvious that fault occurred (res ipsa
loquitur – “the thing itself speaks”) the onus shifts to the defendant to show that there is no fault. Beyond the scope of 1054
but not a new legal idea.
Girouard: There isn’t a presumption of fault, but one of liability. Strict liability because of the activity itself, not just a reverse
onus. Would be very hard to disprove.
Duff (dissent): No fault existed here. Cannot be proven.
Ratio: Under 1054, the owner of a thing is liable for harm caused by that thing while it is in his control, unless he can show
that there was no way he could have prevent the harm.
Comment: Before this decision, 1054 was thought to allow for the use of 1055 (industrial accidents), not to establish a general
regime. But this judges seized on this and exploited it. Allows for liability in a range of situations. After this it was accepted
that 1054 sets a general liability for things. One of the clearest examples of judge-made law in the civil law. You needed the
case law to understand this section.This interpretation was enshrined in the new code in 1994.
This was a Quebec case decided by English judges. Controversial decision – made law different from French law.
DC City of Montreal v Watt and Scott [1917] CCLC
Facts: After a violent rainstorm, a city sewer overflowed and damaged Watt and Scott’s basement, causing damage.
Issue: Is the city liable?
Holding: Yes,
Reasoning: Under 1054, you are liable for the acts of things unless you are unable to prevent it by reasonable means. So if the
storm was exceptionally violent (force majeur) the city could have escaped liability. But based on the facts, the city should
have foreseen a violent storm over the course of the sewer’s lifespan, and should have constructed a sewer large enough to
handle such a storm.
Ratio: “Unable to prevent” in 1054 should be interpreted as “unable to prevent by reasonable means.
CL Rylands v Fletcher [1868]
Facts: Fletcher built a reservoir on his land; Rylands ran a mine on his land adjacent. Unbeknownst to both of them, disused
mining shafts connected the mines to the reservoir. One day the reservoir burst into the mining shafts below, flooding R’s
mines.
Issue: What is the liability of someone who lawfully brings an object onto his land which will do mischief if it escapes his
land?
Holding: Liable under the newly created tort of Rylands v Fletcher.
Reasoning: Anyone who keeps a dangerous substance on their property assumes liability for damage caused by the release or
escape of that substance. Strict liability in the civil law sense. (Only excusable if there was force majeur.) Also they are only
excusable for damage that is the natural consequence of the escape (foreseeable kinds of damage ie: cows eating someone’s
crops v cows killing someone).
Ratio: “The person who, for his own purposes, brings onto his land, and collects and keeps there anything likely to do
mischief if it escapes, must keep it in at his peril, and, if he does not do so, he is prima facie answerable for all the damage
which is the natural consequence of its escape.”
Comment: American law dealt with the problem in this case by classifying certain things/activities as “ultra-hazardous” and
imposing strict liability for them ie: reservoirs, hamburgers in space.
CL Smith v Inco
Facts: Inco operated a nickel refinery in Port Colborne. Defendants (class action lawsuit) alleged that because of widespread
public concerns about the nickel levels in the soil, their property values had not increased at the same rate as comparable
properties.
Issue: Is Inco liable under either private nuisance or Rylands v Fletcher?
Holding: No. Outside the realm of Rylands v Fletcher.
Reasoning: Nuisance cases are about a balance of public/private interests. If the harm or interference to a property is
unreasonable (physical injury to land) or substantial interference with use/enjoyment of land then the tort of nuisance can be
invokes. Physical changes to property are not necessarily physical injury – in this case there was no damage. Would have to
show that the nickel particles caused harm to the plaintiff’s health and well-being.
As for Rylands v Fletcher, the judge found that there was no evidence that the nickel refinery did not present an abnormal risk
to the neighbors and was not a non-natural use of the property, so this tort cannot be invoked either. And still no damages.
Ratio: Court decided against expanding the rule from Rylands v Fletcher.
Comment: If the tort is going to be expanded, it’s up to Parliament.
Josserand, “De la responsabilité”
Gaps exist in the system of extracontractual liability for what appear to be the autonomous acts of things. A gun
accidentally and inexplicably goes off while hunting; a normally well-behaved horse kicks a passerby; the parking
brake on a car fails and it rolls in to a store window. If compensation is not provided for these events, liability is
effectively imposed on the victim, which is unfair. Instead, we should impose liability on the owner of the thing,
since under the théorie du risqué créé, he is the one who brought the situation about in the first place. This liability
would apply only for truly autonomous acts, in which no human action or inaction (negligence) is involved.
Products Liability
CCQ Articles:
1468. The manufacturer of a movable property is liable to reparation for injury caused to a third person by reason of
a safety defect in the thing, even if it is incorporated with or placed in an immovable for the service or operation of
the immovable.
The same rule applies to a person who distributes the thing under his name or as his own and to any supplier of the
thing, whether a wholesaler or a retailer and whether or not he imported the thing.
1469. A thing has a safety defect where, having regard to all the circumstances, it does not afford the safety which a
person is normally entitled to expect, particularly by reason of a defect in the design or manufacture of the thing,
poor preservation or presentation of the thing, or the lack of sufficient indications as to the risks and dangers it
involves or as to safety precautions.
1473. The manufacturer, distributor or supplier of a movable property is not liable to reparation for injury caused by
a safety defect in the property if he proves that the victim knew or could have known of the defect, or could have
foreseen the injury.
Nor is he liable to reparation if he proves that, according to the state of knowledge at the time that he manufactured,
distributed or supplied the property, the existence of the defect could not have been known, and that he was not
neglectful of his duty to provide information when he became aware of the defect.




Usually your first recourse as a victim will be in contract (strict liability!)
o But sometimes you want to sue the manufacturer because they have more money.
Civil law regimes expanded who are the traditional parties to a contract to allow for these cases.
o Consumer is in on the contract between the manufacturer and the retailer.
 In civil law, if there is a contractual breach and a tort, you HAVE to sue in contract first.
 Common law doesn’t have that rule, but it’s easier to sue in contract.
In the civil law: the general idea for defects in products falls under fault-based liability. Because of the very
broad duty of care, you don’t need special rules most of the time. Changes just made it easier for plaintiffs to
win.
The most famous common law case (D v S) is a products liability case. Before this, you couldn’t sue the
manufacturer because they didn’t owe a duty of care towards consumers.
o Res ipsa loquitur: used very often (in D v S even though they don’t mention it). Don’t have to prove
that a snail got in the bottle, just assume that someone did something wrong otherwise there wouldn’t
be a snail there.
Kinds of Defects:
Manufacturing defects:
 CL: Donoghue v Stevenson, res ipsa loquitur
 DC : 1468, 1469, first half of 1473.
Design defects:
 CL: Ordinary principles of negligence apply. Have to show:
o Is there a defect at all (bike that breaks after a year vs breaks after 20 years). Common sense
standard.
o Was it caused by carelessness (fault)? Either res ipsa loquitur or must be shown by the victim.
 State of the knowledge defence ie: thalidomide. Similar to 1473 of the Code. Something
nobody knew could happen until it actually happens.
 DC: Reverse onus. Assumption of liability unless you prove otherwise under 1473. Have to show not just
that you acted reasonably but that it was impossible for you to have known.
Failure to warn:
 CL: Negligence standard. Depends on circumstances (common sense).
 DC: Called “safety defect.”
o Not just “defects” though. Medicine side effects fall under this.
o If the person didn’t read the warnings, they can argue lack of causation. Doesn’t matter if they had
adequate duty to warn or not.
CL Lambert v Lastoplex [1982]
Facts: Lambert purchased a sealant and used it in a rec room next to a room with a gas furnace. Fumes from the sealant
drifted, were ignited by the furnace’s pilot light. Warning labels on the cans read “Keep away from fire, heat and open-flame
lights” and “Do not use near open flame or while smoking. Ventilate room while using.” No specific mention of inflammable
fumes was made. A competitor’s sealant specifically mentioned the danger of pilot lights and spark-producing switches “in or
near” the working area, although it too failed to mention inflammable vapours.
Issue: Was the warning on the sealant sufficient to discharge duty of care?
Holding: No. Lastoplex is liable.
Reasoning: If a product can be dangerous to consumers in the course of use, the manufacturer must provide a warning. This
warning must be specific enough to allow a reasonable consumer to anticipate the danger, and any factors which might
increase the risk of injury. A general warning of inflammability is not enough when there are important risk factors that a
reasonable consumer might not anticipate (such as fumes). The warnings on LC’s sealant lacked the necessary specificity,
since a reasonable consumer would not infer from the warnings to the danger of fumes being ignited by a pilot light in a
separate room behind a closed door. L’s engineering training is not enough to absolve LC of liability; in addition to his
possible knowledge of the consequences of using the chemicals there must be a voluntary assumption of risk
Ratio: Manufacturers have a duty to specifically warn consumers of the possible dangers posed by their products. These
warnings must be specific, and the level of detail of the warning will vary with the likelihood it will be encountered in the
ordinary use of the product.
Howells, Comparative Product Liability
Product liability laws must strike a balance between protecting consumers and imposing a burden on manufacturers.
Products liability became important only with the rise of mass manufacturing and the consumer society from the
mid-19th century onwards, because prior to that there were fewer dangerous products, and products were less
complicated, so consumers to better understood them. There are 4 bases for product liability:
 Contractual/Warranty: Typically not appropriate for liability purposes, except for expectation defects, which
relate to situations in which consumer’s expectations have been raised over and above the normal
performance of the product.
 Negligence: Seems like the most obvious standard, but still has problems, such as apportioning liability on
the basis of fault, rather than ability to pay or cheapest loss avoider. Two important issues areas for
negligence in product liability are:
o Defences: Development risks are dangers that could not have been known at the time the product
was manufactured/marketed, but which are discovered later due to scientific advances (this includes
safer alternatives to the same product). A system which allows a company to avoid liability for
development risks is said to have a “state-of-the-art defence.” Note that laws may impose a postmarketing duty to monitor product safety and whether it is/remains safe. This is separate from
development risks.
o Reasonability of Risks: Some risks are unavoidable, such as systems damage (see below). Such
reasonable risks are not considered negligence.
 Strict Liability: “…liability is based on the objective [harmful] nature of the product rather than of the
behaviour of the producer.” Two standards of strict liability exist: consumer expectations and risk: utility.
o Consumer Expectations: Companies are liable for products which are dangerous in ways that a
reasonable consumer would find objectionable. Raises questions of how to deal with children,
secondary victims or experts.
o Risk: utility: Essentially the Learned Hand formula applied to products. Would fixing the defect cost
more than leaving it in circulation? Liable if your product objectively should have been recalled.
Neither one attempts to compensate for “Systems damage” which is the inevitable damage inherent in
products that are nonetheless considered acceptable to market (i.e. road accidents from cars- having a carbased society will lead to thousands of deaths every year that would not occur if personal cars did not exist,
but we don’t hold car companies liable for this death toll).

Absolute liability: Manufacturers are liable for any damage caused by their products, regardless of fault,
contributory negligence, acts of god, etc. Does not exist anywhere at this time. Even New Zealand’s no-fault
compensation scheme has requirements for compensation.
Lastly, defects of products can be classified in several different ways.
Van Gerven et al., Tort Law: Scope of Protection
Common law has a general reluctance to accept unrestricted liability for “mere omissions” as opposed to “omissions
in action.” The basis of this distinction is that while it is logical that I should be held responsible for the
consequences of events that I have initiated, the same cannot be said of harm which results from a chain of events I
have not unless special circumstances arise.
Excerpts from Winfield, Fridman, & Kidner on Intentional Torts
The forms of action: Trespass and Case:
 Tort law comes from legal procedure. Old tort law wasn’t concerned about rights or duties, but if there was
a form of action.
o Writs. You had to pay for it.
 Two main ones:
o Trespass: injuries to land or goods. Actionable per se: doesn’t have to be “damage” in the modern
sense. Just direct and immediate injuries.
o Case: same, but required proof of damage.
 You had to pick the right one. Now: remedies “depend on the substance of the right, not on whether they can
be fitted into a particular framework.”
 European tort law: negligence and intentional torts are all under “fault.” A collection of torts rather than a
single principle.
o Intentional torts came before negligence was made explicit.
o Changes: breach of contract, modern negligence, confidentiality breaches (based in equity not tort).
The Essential Features of Trespass:
 Oldest of causes. Closely related to the crime.
 Common elements:
o Force (amount does not matter – sometimes de minimus defence is ok, but other courts have said any
touching is a battery)
 Must involve some conscious act of the defendant (has to have capacity, no coercion).
 Consent given freely is a defence.
o Directness
 Force applied directly to the plaintiff
o Strict liability:
 No fault
 You don’t have to know you’re doing it
o Presumption of damage
 Once trespass established, plaintiff entitled to nominal damages
 Consequence of Trespass:
o Damages
o Injunction
 If no injunction, any future trespass can support a new action. You can’t “buy” a right of
trespass.
o Sometimes if you are trespassing you lose certain other rights, if the trespass is causally related to the
injury.
Battery and Assault
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

Assault: threat of contact
Battery: Actual contact
Wilson v Pringle: Teenagers. One was holding a bag, the other pulled on the bag, plaintiff hurt hip. Appeal
court said this is not automatically a battery, defendant given leave to defend the action.
o Situation in everyday life where no explicit consent given but it’s not battery ie: shaking hands. Used
to be more about implied consent, now phrased in terms of generally acceptable in the ordinary
conduct of daily life.
 Touching a person to engage their attention.
o Element of hostility – anger is necessary for the tort.
 So has to be an intentional touching/contact that is hostile.
False Imprisonment
 Protects a person’s interest in freedom from restraint.
 But we don’t have a right to absolute choice in freedom of movement.
 Bird v Jones: Company that owned the bridge sectioned a part of it off with seats, charged spectators for
viewing a regatta.
o Man tried to go in without paying. Police said he couldn’t go across the bridge, but could come back
the way he came. This was not an “imprisonment”.
Conversion
 Depriving someone of their property (by wrongly taking it, detaining it, or disposing of it).
 Willful interference with a chattel in a matter inconsistent with the right of another, whereby that other is
deprived of the use and possession of it.
 Intention irrelevant.
 Conversion at a distance can happen.
 Conversion by taking: you have to have an intention to exercise a dominion over the chattel.
 Passing title: if you sell something without being the owner, everyone down the chain can be sued by the
owner.
o Passing title: you can’t get better title to something than the person who gave it to you. Helps if
someone in the chain doesn’t have money.
 Kuwait Airways Corp v Iraqi Airways Company:
o Iraq invaded Kuwait, took 10 planes from Kuwait Airways.
o Transferred the property to Iraqi Airways
o 4 planes destroyed in bombing. 6 were evacuated to Iran but later returned.
o Ratio: reaffirmed that conversion is strict liability. Court doesn’t care that Iraq Airways didn’t steal,
use, detain, or dispose of the planes. They exercised dominion over them (test for this – did you treat
them like they’re yours?) so they are liable.
Main Criteria for Intentional Torts:
 No fault. (Strict liability – there are defenses).
 Don’t have to prove harm (loss in a tangible sense).
 Has to be directness – you intentionally do the act that results in the tort.
o If it’s done carelessly, that falls under negligence. But courts are not super concerned with the
division. Same result on both sides.
Civil Law: all intentional torts fall under property.
Nuisance
CCQ Articles:
976. Neighbours shall suffer the normal neighbourhood annoyances that are not beyond the limit of tolerance they
owe each other, according to the nature or location of their land or local custom.
Previous explanation of this article (rejected in St Lawrence Cement – but Smith’s favourite one): It falls under
normal fault-based liability, not a special regime. The codal article simply defines the property right, then you go
back to 1457 to see if there was a breach of a duty.
 Similar to the articles that tell you how much of a stream bed you own. Not establishing a wrong, just telling
you something about the property.
o Once you know this, you go to 1457 to see if there is fault for the breach of this right.
 976 is in the section on property – structure of the code (very important to its interpretation) would suggest
this interpretation.
Current explanation: a unique article that imposes strict liability. A weird mix of property and obligations.
DC Drysdale v Douglas [1896]
Facts: Drysdale built a stable in a residential neighbourhood. Douglas owned two houses near there. Stable had the best
equipment possible, but there were still very unpleasant smells. Reduced Douglas’s quality of life and made it difficult for him
to rent out the house.
Issue: (1) Do the odours constitute a nuisance? (2) Do Drysdale’s precautionary measures excuse him from civil liability?
Holding: (1) Yes. (2) No.
Reasoning: Point of fact that the odours seriously harmed Douglas. They exceed the normal annoyances of neighbourhood
living. Drysdale’s efforts to prevent the nuisance are not relevant. Concurring judgment stresses the English law’s emphasis on
neighbourhood zoning and conditions in determining what is reasonable. Circumstances of time and place must be taken into
account.
Dissent: Took exceptional steps to control stuff, followed municipal bylaws. If this was found to be a nuisance, it would bar
everyone from having a stable in a residential neighbourhood.
Ratio: Damages exceeding what is normally expected in a given neighbourhood result in civil liability (code is not
mentioned…weird), even if all reasonable precautions are taken.
CL Appleby v Erie Tobacco [1910]
Facts: Erie Tobacco’s factory, despite his best efforts, creates odours that are harmful to Appleby and his customers.
Issue: (1) Do the odours constitute a nuisance? (2) What is the appropriate remedy?
Holding: (1) Yes. (2) An injunction (not damages).
Reasoning: The tort of nuisance always takes into account neighbourhood context. What is allowable in an industrial area
would not be in a residential area. This (local standards) is the only defence to nuisance. Reasonableness in taking care to not
cause nuisance is not important (a no-fault liability regime). There are two kinds of nuisance: those which interfere with
comfort and enjoyment of the property and those which interfere with the value of the property. When it is a case of the former
(as it is here) it is difficult to measure in dollars what the proper damages should be, so often an injunction is more appropriate.
Paying damages could be seen as buying property rights.
Ratio: Nuisance is a no-fault liability regime. When nuisance interferes with someone quality of life, as opposed to their
property value, an injunction might be the most appropriate remedy.
DC Canada Paper v Brown [1921]
Facts: Brown owns a summer home near Canada Paper’s pulp mill. Canada Paper stated manufacturing sulphate pulp, emitted
harmful odours. Brown asked for an injunction.
Issue: (1) Do the odours constitute a nuisance? (2) Should an injunction be granted?
Holding: (1) Yes. (2) Yes.
Reasoning: Extreme interference with enjoyment of property and there are other options for Canada Paper (can go back to its
old methods of making paper). Fact that the mill contributes to the prosperity of the town is not sufficient to deprive Brown of
his property rights. An injunction will only be granted when the injury to a plaintiff’s rights are so large that they cannot be
adequately compensated by a a money payment and when it would not bear oppressively upon the defendant and innocent
persons.
Ratio: Pre CCQ, creates a jurisprudential equivalent to 976.
CL Miller v Jackson [1977]
Facts: Miller bought a house next to a cricket field. Despite the high wall next to the field, several times a year balls are hit
into Miller’s yard, harming her house and once almost injuring her. Neighbors suffer similar problems. The cricket club
promptly pays for all damage, offered to fortify Miller’s property against future damages.
Issue: (1) Is the cricket club liable for negligence? (2) Are they liable for nuisance? (3) Should the remedy be damages or an
injunction?
Holding: (1) Yes. (2) Yes. (3) Damages.
Reasoning:
(1) The risk of damages was foreseeable, and the preventative measures are inadequate.
(2) The victim’s “coming to nuisance” is no defence for the tortfeasor. Club’s activities cause property damage and threaten to
injure someone, so they are a nuisance. The fact that no one has actually been injured yet is not relevant.
(3) Lord Denning (disagrees with majority decision on negligence and nuisance) thinks property rights should involve a
balance between individuals. There is a public interest in cricket which outweighs Miller’s private interests in sanctity of
property. Miller’s rejection of the clubs’ offers to construct a fence were unreasonable, and partially absolve the club of
responsibility.
Other judge agrees with Denning as far as not granting an injunction.
Ratio: (1) Coming to nuisance is not a defense. (2) Public interest must be taken into account in granting an injunction.
DC Ciment St-Laurent v Barette [2008]
Facts: Ciment St-Laurent opened a cement plant that emitted dust, odor, and noise. Class-action lawsuit brought against them.
Issue: (1) Is Ciment St-Laurent liable for nuisance? (2) On what grounds?
Holding: (1) Yes. (2) Under 976
Reasoning: Judges found no fault on the part of the company, but stated that 976 created a no-fault nuisance regime, so they
are still liable.
Under 1457, persons have to act reasonably and within any legislative norms that apply to one’s immovable property. This
only applies if fault is committed though. Ciment St-Laurent cannot be liable under this provision. A separate regime than
nuisance.
Arguments against propter rem theory (CA’s decision): 976 is activated by inconvenience suffered by the victim. Designed to
protect people (personal rights), not real rights. If it protected real rights, this would prevent recourse by tenants and occupiers,
and make class-action lawsuits impossible. Also minister in drafting the CCQ never discussed this theory.
Reasons 976 is a no-fault regime: location in Book 4 (separate from fault-based civil liability, minister’s comments that it was
inspired by jurisprudence (codification of prior laws), and weird wording. Judicial notice given to results, not conduct. Only
question of interest: do the victim’s annoyances exceed what is reasonable given the circumstances.
Ratio: Two liability regimes exist in the CCQ: fault-based liability under 1457 and no-fault nuisance under 976. Under 976, as
soon as the victim’s annoyances are deemed to be reasonable, the party will found liable, despite best efforts to prevent injury.
IV. ESTABLISHING A CAUSAL LINK
Approaches to Causation
CCQ Articles:
2803. A person wishing to assert a right shall prove the facts on which his claim is based.
A person who alleges the nullity, modification or extinction of a right shall prove the facts on which he bases his
allegation.
2804. Evidence is sufficient if it renders the existence of a fact more probable than its non-existence, unless the law
requires more convincing proof.
CL Barnett v Chelsea [1967]
Facts: Barnett and two other men drank tea contaminated with arsenic and began vomiting. They went to an emergency room
and saw a nurse. The doctor on duty heard the nurse’s description of them over the phone and sent them home without seeing
them. Arsenic poisoning is rare, and it is unlikely that the antidote would have been administered in time to save them even if
they were admitted. Barnett’s widow sued the doctor and the hospital for negligence.
Issue: Was the hospital negligent?
Holding: No.
Reasoning: The “but for” test was strictly applied here. The doctor clearly violated a duty of care by refusing to see the
patients presenting at the emergency room; however, there was no causal link between this breach of duty and Barnett’s death.
The chance of reversing arsenic poisoning so long after injestion was nearly zero, and it was also not likely that he would have
been correctly diagnosed.
Ratio: Strict application of the “but for” test.
DC Gburek v Cohen [1967]
Facts: Gburek was admitted to the hospital with an infection. He was placed on a drug that was known to carry a risk of
kidney damage and hearing loss if used for a prolonged time. His doctor, Cohen, did not carry out enough tests to know
whether this damage was occurring. Gburek suffered permanent hearing loss and brought a suit against Cohen.
Issue: Was Cohen liable for Gburek’s hearing loss?
Holding: Yes.
Reasoning: Reversal of the burden of proof.
Chouinard and Mailhot: Rule of Parent v Laporte followed. Cohen did not successfully prove that he wasn’t at fault (did not
meet the standard of a reasonable doctor - no consent, did not take patient’s complains seriously, did not order enough tests) so
the onus is on him to prove that his fault did not cause the hearing loss.
Beauregard: Cohen’s actions (not doing enough tests) deprived Gburek of the information he needed to prove causation. When
someone, through fault, denies another the means of proving a causal link between their fault and the plaintiff’s harm, there
should be a reversal of the burden of proof.
Cohen did not rebut the presumption, so he is found negligent.
Ratio: Beauregard’s decision is more important – fault causing loss of evidence of causality results in reversal of burden of
proof.
DC St-Jean v Mercier [2002]
Facts: St-Jean was hit by a car and admitted to the emergency room. His first doctor suspected a fracture in his vertebral
column, but the X-rays were inconclusive. Mercier, his surgeon, assumed the fracture was stable or benign, and operated
anyways due to the urgency of the treatment. After the operation, St-Jean was paralyzed. The SAAQ (Quebec Automobile
Insurance) refused to pay St-Jean, claiming the paralysis resulted from the surgery, not the car accident.
Issue: Was Mercier liable for St-Jean’s injury?
Holding: No.
Reasoning: Causation is purely a question of fact. Based on the balance of probabilities, the accident was the likely cause of
the damage (trial judge ruled this). There was no basis to reverse the burden of proof, as there was ample evidence available
for the judge to make a decision and no evidence of fault as to not ordering tests by Mercier.
Ratio: Previous decisions as to reversing the burden of proof should not be widely applied. Balance of probabilities is the
basic test for causation in the civil law.
CL Athey v Leonati [1996]
Facts: Athey had a pre-existing back condition, got into two car accidents (first one was with Leonati). When his condition
began improving after the accidents, his doctor suggested he resume is normal exercise routine. During a workout, he
herniated a disc in his back.
Issue: Should the injury be found to have been cause partially by tortious liability (Leonati’s negligence) and partially by nontortious liability (Ahey’s back condition)?
Holding: No. Liability cannot be apportioned in this way.
Reasoning: The basic test for causation is the “but for” test. In special circumstances, this may be unworkable, in which case
the “material contribution” test may be applied. But in either case, it is not required that the plaintiff show that the defendant’s
actions are the sole cause of their injuries. The thin skull rule applies here.
Ratio: Liability cannot be apportioned between tortious and non-tortious cases.
DC Laferriere v Lawson [1991]
Facts: Dr. Lawson removed a mass from Laferriere, neglected to tell her that it was cancerous. She developed breast cancer
and died. It was highly unlikely that her death could have been prevented with the medical techniques available in 1971.
Issue: Is Dr. Lawson liable for Laferriere’s death?
Holding: Yes. He is not responsible for her loss of chance of survival, but for “moral damages and quality of life.”
Reasoning:
Court of Appeal’s “loss of chance” (accepted by LaForest in his dissent): if she had even a 20% chance of survival (would not
meet the balance of probabilities test), the doctor’s negligence decreased this chance. Therefore causation is found.
SCC rejected this test. This is not a valid test for causation. However, Dr. Lawson’s negligence caused Laferriere increased
moral anguish and prevented her from receiving earlier pain management treatment that would have improved her quality of
life.
Ratio: There is no “loss of chance” test for causation in Quebec civil law.
CL Clements v Clements [2012]
Facts: Plaintiff was riding in the passenger seat of her husband’s motorcycle. He was driving over the speed limit, the weather
was bad, and the bike was overloaded. As well, a nail had punctured the bike’s rear tire. It fell out, the tire deflated, and the
bike crashed, severely injuring the plaintiff. She sued her husband, claiming his negligence caused the injury. The plaintiff’s
negligence was not under dispute, only whether it caused the injury.
Issue: Should the material contribution test be used here?
Holding: No. Basic “but for” test suffices.
Reasoning: The material contribution test should be used in very limited circumstances. Material contribution test is mostly
applicable when there are a number of tortfeasors and it cannot be shown whose action launched the event that led to injury. In
these cases, use of the material contribution test meets the underlying goals of the law of negligence. However, this is not the
case here, and therefore the “but for” test is the correct one.
The “but for” test does not need scientific precision. It is decided on a balance of probabilities.
Ratio: Material contribution test only used in situations where the tortfeasor cannot be identified.
Inherent Uncertainty
CCQ Articles:
2849. Presumptions which are not established by law are left to the discretion of the court which shall take only
serious, precise and concordant presumptions into consideration.
CL McGhee v National Coal Board [1972]
Facts: McGhee worked for the National Coal Board and worked emptying pipe kilns. One day he cleaned brick kilns and
powdered brick caked on his skin. There were no showers at his workplace, so he didn’t get to wash the dust off until after he
had biked home. He developed dermatitis. The exact way the disease developed was not known at the time this case was
decided, but it was known that washing skin immediately after would have lessened the risk.
Issue: Should the material contribution test be used here?
Holding: Yes.
Reasoning: When an injury is caused by two or more factors operating at the same time, at least one of which is a breach of
duty, and it is impossible to ascertain the proportion in which the factors contributed to the injury, the plaintiff is not required
to use the “but for” test. Instead, they will be successful if they prove, on a balance of probabilities, that the breach of duty
contributed substantially (added materially) to the risk.
Ratio: Material contribution test can be used when it is unknown which of multiple factors including a breach of duty caused
an injury.
CL Snell v Farrell [1990]
Facts: Snell performed surgery on Farrell to remove a cataract from her right eye. After giving anesthesia, he noticed bleeding
which could be a sign of retrobulbar haemorrhage. He did a test which came back negative for the condition, and found no
other signs, so he proceeded with the operation. After the surgery there was blood in the vitreous chamber of the eye which
lasted 9 months. When it cleared, Farrell could not see. Her optic nerve had atrophied. One possible cause of this is pressure
due to retrobulbar haemorrhage. Expert witnesses testified, but could not state with certainty what caused the bleed. It was
found that Snell acted negligently.
Issue: Which test for causation should be used?
Holding: The “but for” test.
Reasoning:
Material contribution test and reversal of onus are not needed here. Properly applied, the traditional principles of causation are
adequate to the task. In many malpractice cases, the burden of proof does not shift to the defendant, but because they are the
one with the specialized knowledge, evidence given by the plaintiff and not rebutted by the defendant will be given greater
weight (even if positive or scientific proof of causation cannot be determined.) The trier of fact must make a decision as to
causation even when medical experts do not. In this case, the trial judge found that Farrell had prima facie proved that Snell
caused her injuries, and that Snell had not satisfied the shift in onus. Therefore, the “but for” test on a balance of probabilities
was satisfied.
Ratio: Shift of burden of proof is the wrong way to classify the way causation is determined in malpractice cases. The standard
“but for” test still applies.
Uncertainty in Identifying the Wrongdoer
CCQ Articles:
1480. Where several persons have jointly taken part in a wrongful act which has resulted in injury or have
committed separate faults each of which may have caused the injury, and where it is impossible to determine, in
either case, which of them actually caused it, they are solidarily liable for reparation thereof.
CL Cook v Lewis [1951]
Facts: Lewis was shot in a hunting accident. It could not be determined if Cook or another shot him.
Issue: Which of the two is liable?
Holding: Both are solidarily liable.
Reasoning:
Majority: When it is certain that one of two individuals committed the offence charged, but it is uncertain who was guilty,
normally neither can be held liable. However, an exception exists if both parties breached the duty of care and their negligence
removed any possibility of proving causality, the burden falls to them to prove that they didn’t cause the harm. In this case,
neither could, so they were both found liable
Ratio: If a party proves they were negligently injured by one of two people, and the negligent actions of those two people are
the reason the injured party cannot prove causality, then the burden of proof shifts to the other parties, and they can both be
found liable.
CL Fairchild v Glenhaven [2003]
Facts: Fairchild contracted mesothelioma after being exposed to asbestos by multiple employers, but could not prove who
exactly was responsible. Mesothelioma is triggered by a single asbestos fibre, not built up over time.
Issue: Are the employers liable?
Holding: Yes, all employers are jointly liable.
Reasoning:
Using the “but for” test is unjust – it could not be used to show liability for any employer, and leaving the plaintiff without
recourse is worse than punishing innocent employers, as each employer breached a duty of care to the Fairchild by exposing
him to asbestos. The McGhee standard should be applied here.
Hoffman proposes 5 conditions which should be met for the McGhee standard to be applied instead of the “but for” test.
(1) Duty of care from employer to employee; (2) The duty was intended to create a civil right to compensation for injury
relevantly connected with its breach; (3) The duty is breached and raises the risk of injury of the worker; (4) Causality cannot
be proven; (5) The injury in 3 is suffered by the employee.
Ratio: The McGhee test should be used in place of the “but for” test in limited circumstances.
CL Sindell v Abbot Laboratories [1980]
Facts: DES was a drug given to pregnant women that caused massive birth defects. However, by the time the defects
manifested themselves, it was impossible to determine which company had manufactured the DES which harmed plaintiffs.
This lawsuit was against 200 companies representing 90% of the DES market at the time the plaintiffs were described DES.
Issue: (1) Can the companies be found liable for injuries without proof of causation? (2) If yes, how should liability be
apportioned?
Holding: (1) Yes. (2) By market share.
Reasoning:
Majority: Unjust to deny a remedy to the victims simply because time and nature of the pharmaceutical industry prevent the
proof of causality. Some drug manufacturer is clearly at fault, even though we don’t know which one. Market share = total
harm caused by products, so it is just to apportion liability by market share.
Dissent: Ignores centuries of common law jurisprudence. Unjust to hold a manufacturer liable when it is more likely on a
balance of probabilities that they didn’t injure a particular plaintiff (ie: 5% market share = 95% chance they did not injure a
given plaintiff). How much defendants can pay might be a relevant argument for damages, but should be used as a reliable
indicator of fault.
Ratio: In DES cases in the USA, liability can be apportioned according to market share.
Corrective and Distributive Justice
Corrective Justice in a Nutshell – Ernest J. Weinrib
 Corrective justice: injustice inflicted by one person on another.
 Opposite: distributive justice.
 Both involve two parties and a conception of equality and fairness.
 But two forms construe equality differently.
 Corrective justice:
o Rectificatory function – responds to injustice
o Operates correlatively on both parties
o So injustice itself is correlatively structured (plaintiff and defendant are connected – mirror images set back to equal
standing by the law)
 Distributive justice:
o Sharing of the benefit or a burden.
o Parties linked not as doer and sufferer, but through the benefit or burden they all share.
 Any number of parties admitted.
o Cannot be a justification for holding one person to another.
 Weinrib likes corrective justice.
o Correlation of right and duty
 How do you explain negligence?
o Harm has to be to an interest that has the status of a right. Not just wrongful conduct but “a wrong.”
o Concepts and principles of tort liability set out the conditions under which the defendant’s conduct counts as a wrongful
infringement of the plaintiff’s right.
o Rights are not just bundles of welfare,
Factual Causation Cheat Sheet
Robust and Pragmatic Approach to Causation (traditional approach – but for test Barnett v Chelsea):
 Causation in law is not identical to scientific causation. Need not be determined by scientific precision.
 Causation in law must be established on the balance of probabilities, taking into account all the evidence: factual,
statistical, and that which the judge is entitled to presume.
 Statistical evidence may be helpful as indicative, but it is not determinative.
 In the absence of evidence to the contrary adduced by the defendant, an inference of causation may be drawn
although positive or scientific proof of causation has not been adduced.
Material Increasing Risk Leading to Harm:
 McGhee v National Coal Board
 If you materially increase the risk of the harm occurring – beyond a trivial amount
 Clements v Clements (current standing law): this test can be used in one of two scenarios:
1. Indeterminate defendant cases
2. Causal assessment depending on the hypothetical behaviour of a third party. (Walker Estate)
 Gay man donated blood, recipient got HIV.
 Trying to determine if the way the question was asked caused the blood to be donated, but donor was
dead. No way of knowing if he would have answered differently to a different question.
 In this way you can look at if asking the question a certain way materially increased the risk
Alternative Mechanisms (rarely used slash all overruled by high courts or the Clements decision – you have already proved
fault):
1. Inference based on defendant’s particular knowledge of facts and undermining plaintiff’s ability to prove causation
(this is now incorporated into the “but for” test):
 Snell v Farrell
 Not a reversal of burden of proof – plaintiff only has to do a little to prove causation if there is no evidence
to the contrary and all the knowledge about causation rests with the defendent.
2. Deceased chance:
 Laferriere v Lawson
 If you have less than a 50% chance of survival, you will lose the but for test on a balance of probabilities. So
using this test, you can find causation for decreasing this chance.
 SCC says you can’t use this.
3. Reversal of burden of proof of causation on defendants under 1480 of the CCQ:
 Gburk v Cohen – when defendant’s actions are the reason the plaintiff can’t prove causation
 St-Jean v Mercier – this should be used very narrowly
 Athey v Leonati – you don’t have to ever show that the defendant’s actions are the sole cause of the
plaintiff’s injury
4. Market share liability:
 Sindell v Abbot Laboratories
 Only ever for DES causing birth defects in the US
 Liability apportioned for market share at the time of manufacturing the drug
5. Multiple tortfeasors:
 Cook v Lewis
 Fairchild v Glenhaven
 Multiple possible tortfeasors who are all at fault, and you know one MUST have caused the harm, but can’t
determine which one  burden of proof shifts to them to disprove causation
CCQ Articles:
2803. A person wishing to assert a right shall prove the facts on which his claim is based.
A person who alleges the nullity, modification or extinction of a right shall prove the facts on which he bases his
allegation.
2804. Evidence is sufficient if it renders the existence of a fact more probable than its non-existence, unless the law
requires more convincing proof.
2849. Presumptions which are not established by law are left to the discretion of the court which shall take only
serious, precise and concordant presumptions into consideration.
1480. Where several persons have jointly taken part in a wrongful act which has resulted in injury or have
committed separate faults each of which may have caused the injury, and where it is impossible to determine, in
either case, which of them actually caused it, they are solidarily liable for reparation thereof.
INTENTIONAL TORTS
The forms of action: Trespass and Case:
 Tort law comes from legal procedure. Old tort law wasn’t concerned about rights or duties, but if there was a form
of action.
o Writs. You had to pay for it.
 Two main ones:
o Trespass: injuries to land or goods. Actionable per se: doesn’t have to be “damage” in the modern sense. Just
direct and immediate injuries.
o Case: same, but required proof of damage.
 You HAD to pick the right one. Now: remedies “depend on the substance of the right, not on whether they can be
fitted into a particular framework.”
 European tort law: negligence and intentional torts are all under “fault.” A collection of torts rather than a single
principle.
o Intentional torts came before negligence was made explicit.
o Changes: breach of contract, modern negligence, confidentiality breaches (based in equity not tort).
The Essential Features of Trespass:
 Oldest of causes. Closely related to the crime.
 Common elements:
o Force (amount does not matter – sometimes de minimus defence is ok, but other courts have said any
touching is a battery)
 Must involve some conscious act of the defendant (has to have capacity, no coercion).
 Consent given freely is a defence.
o Directness
 Force applied directly to the plaintiff
o Strict liability:
 No fault
 You don’t have to know you’re doing it
o Presumption of damage
 Once trespass established, plaintiff entitled to nominal damages
 Consequence of Trespass:
o Damages
o Injunction
 If no injunction, any future trespass can support a new action. You can’t “buy” a right of trespass.
o Sometimes if you are trespassing you lose certain other rights, if the trespass is causally related to the injury.
Battery and Assault
 Assault: threat of contact
 Battery: Actual contact
 Wilson v Pringle: Teenagers. One was holding a bag, the other pulled on the bag, plaintiff hurt hip. Appeal court said
this is not automatically a battery, defendant given leave to defend the action.
o Situation in everyday life where no explicit consent given but it’s not battery ie: shaking hands. Used to be
more about implied consent, now phrased in terms of generally acceptable in the ordinary conduct of daily
life.
 Touching a person to engage their attention.
o Element of hostility – anger
 So has to be an intentional touching/contact that is hostile.
False Imprisonment
 Protects a person’s interest in freedom from restraint.
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But we don’t have a right to absolute choice in freedom of movement.
Bird v Jones: Company that owned the bridge sectioned a part of it off with seats, charged spectators for viewing a
regatta.
o Man tried to go in without paying. Police said he couldn’t go across the bridge, but could come back the way
he came. This was not an “imprisonment”.
Conversion
 Depriving someone of their property (by wrongly taking it, detaining it, or disposing of it).
 Willful interference with a chattel in a matter inconsistent with the right of another, whereby that other is deprived
of the use and possession of it.
 Intention irrelevant.
 Conversion at a distance can happen.
 Conversion by taking: you have to have an intention to exercise a dominion over the chattel.
 Kuwait Airways Corp v Iraqi Airways Company
o Iraq invaded Kuwait, took 10 planes from Kuwait Airways.
o Transferred the property to Iraqi Airways
o 4 planes destroyed in bombing. 6 were evacuated to Iran but later returned.
Nuisance: The Pale Green Tort
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The relationship between neighbors – not D v S neighbors, but real ones.
o But now associated with environmental protection.
o Public interest: from Miller v Jackson, Civilized Society.
o More to it than just neighbors.
Traditional accounts of nuisance:
o Private v public
o Makes it seem very orderly
Private nuisance:
o Any unlawful interference with a person’s use or enjoyment of land, or some right over or in connection with
it
o Unlawful = substantial and unreasonable
o Physical damage or noises, smells
o Factors affecting unlawfulness: nature of locality, (possibly) utility of defendant’s conduct, duration of
interference, whether the defendant’s act was motivated by malice, whether the plaintiff’s reaction was
‘abnormally sensitive’.
o Nuisance emanates from defendant’s land.
o Essence of tort: protect property. Plaintiff must have an interest in the land.
o Strict liability, but fault of some kind of almost always necessary, even if it’s not at the level of negligence.
o Harm is foreseeable.
o Defences: prescription, statutory authority,
o Remedies: damages, injunction (subject to equitable discretion of the court).
Public nuisance:
o A crime which may generate a civil cause of action.
o Concerned with protecting people, not property rights.
 Infringement with the lives and activities of the community, not an individual. So criminal law is a
more appropriate response.
 But an individual can bring suit if they can prove that they have suffered particular damage over and
above that of the community at large.
Overlap between private and public:
o Halsey v Esso – oil distributing depot
 Noise of depot – private nuisance
 Arrival and departure of tankers throughout the night via highway – public nuisance
Rylands v Fletcher:
o The person who, for his own purposes, brings on his land, and collects and keeps anything likely to do
mischief if it escapes must keep it at his peril, and, if he does not do so, he is prima facie answerable for all
the damage which is the natural consequence of its escape.
o A non-natural use of the land – what exactly does this mean?
o What is “a thing likely to do mischief”?
o What is escape?
o Do you have to own the land?
o Does it have to be a property injury or is personal injury ok?
o What is the difference between R v F and private nuisance?
 A distinct principle for exceptional/unusual risks?
 A subspecies governing isolated escapes (as opposed to ongoing and continuous ones?)
Critiquing Nuisance:
 Historical context
o Illuminates its modern social role by revealing the values it reflects and the interests it serves.
o Private nuisance: Comes from 13th century remedy for protecting interferences with land.
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o
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Public nuisance: 13th century, could lead to tort starting from 16th century.
Medieval conception: limiting neighbor’s ability to use and develop land. Standards for judging: rural,
agricultural, conservative.
o But not a significant barrier to industrialization. Common law can’t explain why. On its face nuisance
maintained a “pre-industrial mentality.”
o What did happen to private nuisance post industrialization:
 blurring the line between public and private nuisance (extending the situations where a requirement
of special damage was a precondition to suit)
 distinction between inflicting material damage to property and producing “sensible personal
discomfort” (had a class impact – could sue if you were the landowner but not otherwise)
 zoning function of nuisance law (different impact post-industrial revolution)
 immunity-conferring nuisance clauses in statutes
 gradual injection of a fault element (St Helens Smelting v Tipping – encroachment of negligence into
the tort)
o Re: last one – where does R v F come from then?
 General “liability tide” was flowing in the other direction.
o General reaction of judges to R v F: needs constraint
o Industrialization and public nuisance:
 Private suit only if there was special damage
 No significant increase in public nuisance cases even though overall health suffered. Instead, a
diminution in indictments. Policy favouring polluters.
 Statutory controls
Ideological context
o Rationalization of judges’ decisions in textbooks – how is this done in nuisance law?
o Discretion:
 Reasonable person combined with local rule
 Abnormal sensitivity
 Measure of damage required for amenity harm
 Standard of liability for damage different for property harm vs amenity harm?
 Amenity harm might be stricter
o Amount of uncertainty in nuisance means less judicial constraints
o Miller v Jackson: Denning paints a particular picture of English social life. Sexist, classist, tradition-based.
 Turns nuisance law into a means for protecting the environment.
 A means to a particular social end.
 The case undermines the doctrinal provision that coming to nuisance is no defence.
o Thomas v NUM: strike breaking miners sought an injunction against striking miners from picketing them as
they went into work. Judge thought there was something wrong with the defendant’s actions, but couldn’t
figure out a tort. Said that the principle underlying tort: “unreasonable interference with the rights of
others” and nuisance is a good example of this. Granted an injunction without naming the tort.
 Political decision
o Cambridge Water Co Ltd v Eastern Counties Leather plc: products used for cleaning leather seeping into local
water supply
 Sued under negligence and nuisance and R v F.
 Not foreseeable in either sense so none of these apply.
 Manner in which the harm arose (not foreseeable) vs kind of harm that arose (foreseeable)
 Author thinks this doesn’t make sense. Isn’t it obvious that if a chemical product escaped into water,
it would contaminate it?
 Social context: EC: as a model company. Water company is in a better position to pay for damages
(spread out amongst its customers).
 Really a case of environmental concerns v business interests. Judge says environmental
concerns
Nuisance Law and the Environment:
 Summary of previous 2 sections:
o Nuisance is heavily weighted In favour of the protection of public property
o Nuisance’s indeterminacy renders it vulnerable to doctrinal manipulation
 Uncertainty of tort laws allows people to use it to pursue socially desirable goals.
o Privately-initiated: allows for individuals to access debates normally restricted to policy-makers.
 Nuisance: often disputes are about activities that have an environmental impact.
o Suit in nuisance often has an indirect result in improving the environment. (Not always…brothels, sex shops,
also in Miller v Jackson cricket club represented environmental interests)
 On the whole throughout history, an ineffective weapon against pollution. Never really reflected a concern for
environmental protection.
o Law as a means to an end.
 Economic analysis in the context of pollution. How much pollution is allowable? An efficient level.
o Prescriptive: plus minus calculation of $
o Descriptive: talking about law in more neutral terms
 An economic approach to nuisance requires consideration of the impact of legal rules (who should be liable? What
should the remedy be?)
o America is really into this. Comes up with some fun solutions like no injunction IF damages are paid, or
defendants have to move but plaintiffs have to pay for it.
o Britain no self-conscious adoption of an economic approach.
 Why is nuisance no good for dealing with pollution?
o Common law likes to protect private property rights
o More direct forms of government intervention work better
 Maybe a “twin-track” system?
 Economic approach to pollution is not neutral: can directly oppose state (in)action.
 Is the economic approach the best one to take to the environment? Assumes its something at humans’ disposal.
o “Sustainable development” don’t compromise future need. How do you define this? Lots of things ie:
scenery, water quality, species protection. But this is difficult to calculate mathematically $. Has to do with
individuals’ preferences.
 In the past, underestimate of the value of the environment had to do with structure of private property rights, not
because of lack of scientific knowledge.
o Social cost to community was not part of private law.
o We can’t look at the environment as a commodity if we want to repair and restore it. Question the prevailing
perception of humanity’s relationship with nature.
o “Deep green” perspective – relationship between humans and nature as harmony and coexistence, not
dominance and exploitation.
Keating: Personal Inviolability and “Private Law”
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Private law: autonomy/inviolability of private law.
Public law institutions often complement/complete private law ones.
Purposes unchanged, forms through which they are pursued radically changed.
Zoning (public)
o Addresses similar problems as nuisance
o Also arises out of perceived limitations of nuisance
Environmental regulation: displaced nuisance because it is seen to be superior as an institutional mechanism for
addressing the fallout of legitimate activities.
Nuisance law not a good way for regulating pollution.
o Asks if the plant should go in a particular place, not where the best place for it is or if it is not harming the
environment.



o Remedies don’t work well.
Solution: displacement of nuisance by regulation.
Underlying rights of landowners becoming increasingly more complex and multilateral.
o Bilateral legal mechanisms less adequate as a way to resolve the problems.
Lots of other places where public law “perfects” the private law – and vice versa.
o No-fault administrative schemes
SEMESTER 1 CHEAT SHEET
Topic
Common Law
Civil Law
Duty of Care
Donoghue v Stevenson (duty of case
owed to neighbors – anyone so close
you should have had them in
contemplation, no pure economic
loss)
Bolton v Stone (test for
foreseeability involves probability
of harm, probable extent of injury)
1457 (duty to abide by rules of
circumstances, usage, law, to not
injure another – if you endowed with
reason and fail, in this duty, liable for
reparation to injuries)
Labelle v Gatineau (reasonable steps
to prevent foreseeable accidents)
Fault
Experts (modified fault
standard)
Wagon Mound 2 (adds cost for
prevention to discussion on
foreseeability)
ter Neuzen v Korn (an expert acting
in line with standard practice will
not be found negligent unless the
practice itself contains obvious
risks)
Children (modified fault
standard)
McHale v Watson (test in common
law for child’s liability is objective
“the reasonable #-year-old in this
circumstance”, childhood is not an
idiosyncrasy of the particular
person)
Customs and Legislation
(relation to fault)
Canada v Sask. Wheat Pool (breach
of statute in Canada falls under
negligence, proof breach might be
evidence of negligence, statutory
formation of duty might help
determine standard of behaviour)
Oeuvres de terrains de jeux v Cannon
(bon père de famille standard for
preventing foreseeable risks)
Rogerge v Bolduc (professional
acting within standard practice will
still be liable if the practice itself
unreasonable – as determined by a
reasonable person)
Ginn v Sisson (if a child has capacity
– an objective test – they a) can be at
liable b) are automatically at fault for
an objectively wrongful act,
presumption of liability for parent if
their child is at fault but this can be
rebutted)
Morin v Blais (breach of a regulation
does not give rise to liability, but if
fault is followed by the kind of
accident standard was designed to
prevent, assume causal link)
Waldick v Malcom (relationship of
Occupier’s Liability Act – what
“mischief” was a legislation
designed to cure, how would
reasonable person understand it:
volenti doctrine is knowing AND
consenting to a risk)
Employers (vicarious
liability)
Ira S Bushey v United States (if act
is foreseeable and related to
employment, employer is
responsible
Bazley v Curry (test: is act 1.
authorized by employer 2. Improper
mode of doing an authorized act –
this breaks down to policy concerns
balancing deterrence and recourse,
sufficient relation, but NOT
foreseeability)
Jacobi v Griffiths (narrows previous
1457 (liable for I jury caused by
act/fault of another)
1463 (you are liable for reparation of
injuries caused by your employees)
Le Havre des Femmes v Dube (liable
for acts of employees if it falls within
normal scope of their duties or if not,
if it is at least partially beneficial to
employer)
Parents (liability for
children)
decision, more about closeness of
relation of act to job, not materially
increasing risk)
Ontario Parental Responsibility Act
1459 (act or fault of child, reversal of
onus, parent or anyone who educates
child)
1460 (person acting like a parent
liable same as parent, unless they are
doing it for free or non salaried pay –
then they are not liable unless they
themselves commit a fault)
1461 (custody of person of full age
not endowed with reason not liable
for other’s act unless they commit a
gross fault)
1462 (no one liable for act/omission
of person not endowed with reason
except when the person’s conduct
would otherwise be considered
wrongful)
Things
Rylands v Fletcher (applies when a
person brings something likely to do
mischief on their land for nonnatural use and it escapes – strict
liability, foreseeability in terms of
type of damage)
Smith v Inco (tort of Rylands v
Fletcher interpreted very narrowly,
need to show actual damages –
physical injury to land or
interference with use/enjoyment)
Products Liability
Gaudet v Lagace (presumption of
parental liability can be rebutted by
showing adequate supervision and
upbringing, might apply objective
age standard to children endowed
with reason)
1465 (person with custody of thing
liable for its autonomous acts –
presumption of fault
1466 (owner of animal liable for its
acts – presumption of fault)
1467 (owner of an immovable liable
for injury caused by its ruin)
Doucet v Shawinigan Carbide
(presumption of fault for acts of
things, not presumption of liability)
City of Montreal v Watt and Scott
(rebutting presumption of fault
involves showing you were unable to
prevent – interpreted as unable to
prevent by reasonable means)
1468 (manufacturer of moveable
liable for injuries called by safety
defects)
1469 (safety defect – does not afford
safet a person reasonably expects by
defect in
design/manufacture/preservation or
lack of sufficient indication as to
risks and dangers)
Lambert v Lastoplex (failure to warn
– warnings must be specific and level
of detail will vary depending on
likelihood of product ordinarily being
used that way)
Battery (intentional tort)
False Imprisonment
(intentional tort)
Conversion (intentional
tort)
Nuisance
Wilson v Pringle (essential element
of battery is hostility, battery is not
touching experience in the ordinary
conduct of daily life)
Bird v Jones (you don’t have
complete freedom of movement,
telling you not to go somewhere
prohibited is not a tort)
Kuwait Airways Corp v Iraqi
Airways Company (strict liability for
conversion – exercising dominion
over items or treating them like
they’re yours is enough)
Appleby v Erie Tobacco
(nuisance is no-fault liability,
if nuisance interferes with
quality of life not property –
injunction)
976 (neighborhood standard for
nuisance)
Miller v Jackson (preventative
measures and coming to
nuisance not a defence,
balance between public and
private rights in determining
if an injunction is relevant)
Drysdale v Dugas (efforts to
prevent nuisance not relevant,
neighbourhood standard only
relevant factor)
Canada Paper Co v Brown
(created nuisance in the civil
law pre-CCQ, economic benefit
of nuisance not relevant)
Ciment du Saint-Laurent inc. v
Barrette (976 established a
completely régime from 1457,
it is strict liabiluty, mix of
protecting property and
personal rights)
WINTER TERM OUTLINE
Introduction to Injury
To recover damages, do you need to prove that there is a harm/injury?


DC: Yes. In 1457, you cannot recover damages if there is no harm.
o If you want another remedy (like an injunction to stop trespassing) you don’t need to prove harm.
CML: Depends on the tort.
o For negligence, you always need harm/injury (Donoghue v Stevenson)
o For intentional torts, you can get nominal damages (symbolic) without proving harm.
o For nuisance, you need harm.
Does the nature of the injury/harm matter?


DC: No. Any sense of harm/injury in the normal sense of the term is sufficient. Moral damages, paint and
suffering. Clearest example is bereavement cases (Augustus).
CML: Certain things, standing alone, are not sufficient to found an action in negligence.
o Mental distress/pain and suffering. Some exceptions, and changes through legislation.
o Pure economic loss. Exception: extremely bad faith.
If there is an injury, how do you assess (quantify in $) the injury for purposes of damages?


DC: Pecuniary and non-pecuniary damages.
CML: Compensatory damages (pecuniary and non-pecuniary, includes pain and suffering), punitive
damages.
o Technical calculations, normative calculations (race/gender stuff, controversial).
Two theories of what you are trying to do with damages (present in judges’ language in both systems):


Substitute for the original duty. Duty still continues after contract – so if you have a duty not to break a
window and you break it, you pay money to substitute for the original duty (this makes more sense for
contracts).
Expressive and symbolic. A vindication/apology with money. Better explains nonDC – Hite c. Jim Russell International Racing Drivers, 1986 AQ [C1.417]
Facts: Jim Russell placed a chain across the access road to the pit stop on their race track. This chain was normally removed at 8:00 am
every day. At 8:15 am, Hite turned off the race course on to the access road and did not see the chain until it was too late. The accident
completely disfigured Hite’s face, and even after reconstructive plastic surgery he remains horribly scarred.
Issue: What kinds of damages can Hite receive compensation for?
Holding: Hite must be fully compensated for his patrimonial (economic) and moral/extrapatrimonial losses.
Reasoning: Facial disfigurement fundamentally affects communication, interpersonal relations and the identity a person projects to the
world. It may even prevent Hite from working in jobs that require contact with the public. Thus it has both patrimonial and
extrapatrimonial elements which require compensation. Moral damages must be recognized as a form of extrapatrimonial damage that
includes all non-economic/non-patrimonial damages, such as infringement on personality rights, human rights, family rights or otherwise.
In contrast to common law, these damages are not considered as supplemental to “real” damages like physical harm or loss of property, nor
do they require a “functional” justification. Quoting Baudouin: “le prejudice … doit être évalué en fonction de la perte individuelle causée
par l’atteinte et non en fonction de la seule capacité d’en pallier les effets …” The trial judge evaluated damages following the standard
approach in Droit Civil and did not mistakenly apply Common Law principles. Thus the damage award stands (with a small, unrelated,
adjustment to the compensation for H’s temporary total incapacitation).
Ratio: None really, we’re just supposed to see how civilians reason about damages, and how generously damages are defined.
Note: in CML, this case would be decided the same way because the plaintiff suffered a physical injury.
Some elements of the injury will have an economic and moral element (ie: disfigurement).
DC – Ouellette c. Réal Tardif, RJQ (CA) [C1.427]
Facts: Tardif is a priest working for the White Fathers, a religious order in Québec. While swimming he was hit by a boat being
negligently driven by Ouellette. He sued for damages and won both pecuniary ($230,000 for permanent partial loss of capacity and 75,000$
for temporary total loss of capacity) and non-pecuniary ($75,000) awards. However the trial judge found contributory negligence on T’s
part and reduced the awards by 25% to reflect this. The pecuniary awards were appealed by O, who argued that the damage awards were
excessive. R appeals the trial judge’s findings of contributory negligence.
Issue: (1) Was Tardif negligent? (2) Does Tardif’s vow of poverty prevent him from suing for lost revenue? (3) Was the award too high?
Holding: (1) No (2) No (3) No – it was too low.
Reasoning: The non-pecuniary damages fall within the limits proposed by the Supreme Court, hence there is no reason to dispute the trial
judge’s awards. With respect to pecuniary damages, even though T did not receive a salary directly (all his earnings as a teacher were given
to the church) he can be compensated for his loss of earnings capacity. This earnings capacity should include the value of benefits as well
(paid vacations, dental plan, stock options). However, since T was devoted to serving in Africa, he should not receive an “overseas service
premium” because it exists to compensate additional hardship - which T clearly does not feel. The time horizon for T’s working life should
be 65, the age of retirement for most Canadians, because even if many White Fathers work until just before death, there is no proof that T
would continue to work as a teacher for all that time. Lastly, because the injury prevented T from visiting Africa entirely, its contribution to
his lost revenues should be 100%, not 31.5% as assessed by the trial judge. Overall, T’s damage award rises substantially.
Ratio: (1) Damages must be awarded in concreto, taking account of the victim’s specific needs and abilities (2) In cases where the victim
does not work, or works only part time, lost revenues should be calculated by employment potential (3) Various minor practical issues in
calculating damages.
Notes: He gets the money as if he was being paid for the job he did.
DC Augustus v. Gosset, [1996]
Facts:
Mother claiming moral damages deriving from shooting of her 19 year old son by a police officer. Her
claim for compensatory damages for solatium doloris (solace for grief) based on arts. 1053 and 1056 CCLC
– now replaced by single art. 1457 CCQ.
Issue:
Can victim’s mother obtain compensatory damages for solatium doloris and, as her son’s heir, damages for
his loss of life? Is solatium doloris the only head or moral prejudice under which she can claim damages?
Legal Reasoning: (SCC L’Heureux-Dubé J.)
 Unlike common law, civil law never denied that an indirect victim can obtain compensation for
moral prejudice resulting from the death of a relative or close friend.
o Art. 1053 CCLC allows for a claim in moral damages, even if no pecuniary damage is proven.
 Erroneous trial judgment followed from Canadian Pacific Railway. Since that case, Quebec judges
awarded compensation for pecuniary consequences of grief, they generally refused claims of
solatium doloris  this position is incorrect (applied English instead of French law).
o Error as in Russel v. Hite of CVL Courts following CML principles applied by SCC
 Court of Appeal’s error lies not in its definition of solatium doloris, but in its assessment of the moral
prejudice suffered by appellant.
 They failed to fully compensate her for her grief  didn’t abide by principle of restitutio in integrum
(making victim whole again, restoring original condition).
o * Because of the error in CPR, existing Quebec jurisprudence is unhelpful.
 Court of Appeal’s other major error was in recognizing solatium doloris, but failing to develop new
test for assessing prejudice  deprived appellant of her right to be fully compensated.
 In developing test for such a personal and emotional issue, must try to retain objectivity in order to
foster moderation and predictability underlying restitution doctrine.
o Factors to consider  circumstances of death, age of deceased, nature of relationship,
emotional consequences and parent’s ability to handle them, other children / possibility of
having others.
o In this case, son’s unexpected and violent death was exacerbated by the fact that mother
had lost another child and was unable to have more.
 Principle: In determining a fair and reasonable award for solatium doloris, the Court should be as
objective as possible and consider other cases of nonpecuniary loss, the socio-economic result of the
new award, the need for predictability and certainty and the human element. Courts must balance full
compensation for the grief of an individual and, on the other hand, the broader perspective to ensure a
criteria for moral damages awarded in different contexts.
Holding:
Quebec law does recognize the principle of moral damages for solatium doloris. Given the circumstances,
a fair award might be $25,000. Case must be referred back to AC for quantum.
Notes: In traditional common law, mother would get nothing. Legislation in most jurisdictions changes this for
close relatives.
Chamallas & Wriggins, The Measure of Injury (542)
 Race and gender-based tables for calculating income and life expectancy for damages
 Issue of accuracy (how often are they updated)
 But if we assume they’re accurate, are they appropriate? Based on stereotypes that are grounds for
discrimination.
o Equality by giving everyone the most possible (ie: white man table): maybe ok when there is a claim
against the government, but is it a private individual defendant’s job to fix systemic racial/gender
inequality? Can say that their task is simply to compensate a particular person.
 This argument is not accepted other places ie: Provincial Charters apply to hiring of private
citizens – you can’t discriminate in hiring practices.
 Other less-controversial things that influence income/life expectancy calculation: education/job skills, age,
health status.
 Recognize tort’s role in perpetuating current economic situations.
o But it’s not public law – about injustice between two people. So should we expect it to fix these
social problems?
 Possible solution regarding punitive damages: if you’re taking less care around people of a certain
race/gender, the inequality in the tables can be made up for in punitive damages.
o Common law: this situation exists for defamation
o Civil law: not done traditionally
CML Parker v. Richards, [1990]
Facts:
The mother of the plaintiff was killed in a car accident, and the grandmother of the plaintiff is suing for damages on behalf of the
plaintiff. The defendant was found negligent. The victim was a 17 year old single mother of Native ancestry with grade 6 education
and no employment. The claim here is for loss of financial support, loss of mother’s services, loss of care, guidance, training and
encouragement, and loss of inheritance
Issues:
What damages can be collected by the plaintiff for the loss of her mother?
Reasoning:
Financial awards in cases such as these are based on future income prospects of the deceased
Relevant factors to calculate this amount (A SUBJECTIVE TEST):
- Gender, age, education, labour force participation, marital status, ethnicity, socio-economic status background
The future prospects for the deceased (the plaintiff’s mother) would probably have been bleak (one ranking in the lowest socioeconomic brackets in Canada)
The victim’s greatest income would have been Welfare (882$/month)
- only the amount dispensed exclusively for plaintiff’s benefit is due to her (estimated at 200$/month)
Past (11,583$) + Future losses (126,238$)= 137,821$
+
Loss of care/guidance, etc. (20,000$), Loss of inheritance (5,000$)= 25,000$
Holding:
Due to the bleak prospects of the victim, the claims of the plaintiff are seriously limited. For the loss of her mother, the plaintiff is
awarded (162,821$).
Applied gender/race based tables without questioning. Some US courts now have refused to apply these.
Capping non-pecuniary injuries
CML Ter Neuzen v. Korn, [1995]
Facts:
The Doctor, Korn, through no liability of his own, infected the plaintiff with HIV through artificial insemination. The doctor had no
way of knowing this would happen. This appeal is to decide on the extent of damages that the plaintiff is entitled to. The judge at trial
did not instruct the jury of the limits set on damages, and the plaintiff was awarded damages by the jury which exceeded the limit or
‘cap’.
Issues:
1. Should the damages awarded for non-pecuniary loss be adjusted in accordance with the ‘cap’ principles?
2. Did the judge err in failing to inform the jury of the limits of damages?
Reasoning:
Damages:
Cap on non-pecuniary damages introduced in Andrews. Damages are traditionally a matter for the jury (or trial judge) so capping was
a big issue. Worried about massive awards like in the US.
The rough upper limit for non-pecuniary damages was capped at 240k, but the jury in this case awarded 460k
It is impossible to put a money value on suffering, therefore the award of non-pecuniary damages is a philosophical/policy exercise
rather than a legal/logical one
- rather than evaluating loss of happiness, non-pecuniary damages seek to provide solace
The amount of the award depends on the ability of money to ameliorate the condition of the victim in his or her particular situation
- Non-pecuniary damages should only be awarded to the extent that they can serve a useful purpose
Although the plaintiff’s losses are no doubt tragic, the damage cap is there for a reason, and this tragedy is no different than others
which have respected the cap.
Trial Judge:
This presents a dilemma since a) informing the jury of an upper limit could unduly influence them, b) not informing them
seems wrong as a matter of policy and law
It comes down to the judge’s discretion:
- The trial judge should instruct the jury if he thinks the damages will be in the range of, or exceeding, the upper limit
- If the judge believes the damages won’t near the upper limit, then he should not instruct the jury
Whether the jury is or is not advised, the trial judge should reduce the award to conform with the ‘cap’
Dissent: (L’Heureux-Dubé J)
Agreeing with Sopinka on the point #1., but dissenting on point #2.
“It has always been held improper for the trial judge or counsel to express any views as to the quantum of damages.”
- that amount is for the jury to determine as they see fit
- making it “a matter of law” defeats the purpose of trial by jury: the value of the independent judgment of lay people
Holding:
1. The damages should be adjusted to fit the cap for non-pecuniary damages
2. The judge did not err in not informing the jury of the cap, but he should have corrected the amount to meet that cap afterwards.
Notes: way you think about this case (Sopinka or H-D) depeds on what you think the purpose of the cap is? Only to establish
an upper limit or to get an idea of how to assess damages on a scale? Upper limit is for the MOST serious (like sentencing in
criminal law).
FUNCTIONAL METHOD: (Dickson J in Andrews)
 Instead of attempting to evaluate the loss of happiness, non-pecuniary damages seek to provide the
plaintiff with reasonable solace for the misfortune suffered. Money acts as a substitute for the pleasure
and enjoyment lost and endeavours to alleviate, as far as possible, the pain and suffering
 Cannot in any sense truly compensate for pain and suffering. Instead give something like solace? Have a
good life in other ways? Not a mechanical system, but supposed to be more fair?
 But not good at compensating for pain suffered during the negligence (ie someone gets trapped
underground) or someone who is permanently in a coma.
DC Curateur Publique v. Hôpital St-Ferdinand, [1996]
Facts:
Unionized employees at hospital for mentally disabled went on illegal strike for 33 days in Nov 1984. Thus, 703 patients were
deprived of regular care and services. CP brought class action suit on behalf of patients, seeking compensatory damages for moral
prejudice as well as exemplary damages. Both trial and CA judges declined to use “functional approach” in assessing moral damages.
The former did not award exemplary damages, but the latter did.
Issues:
 Was the trial judge right not to use the functional approach in assessing moral damages?
 Should exemplary damages have been awarded?
Legal Reasoning (L’Heureux-Dubé J):
 L’-D: 3 ways of thinking about non-pecuniary awards (don’t TELL you what amount to give, just says what you should take into
account):
o Objective (get a certain amount for a certain injury, regardless of features of the individual)
o Personal (looks at personal suffering – you personally hate being in a wheelchair compared to someone who is okay)
o Functional (same as in common law, described above)
 Functional Approach?
o Functional approach not relevant in QC to determine the right to compensation for moral damages.
o However, it can be used (along with the conceptual and personal approaches) to determine the quantum of damages to
award.
o BASICALLY NO GUIDELINES.
o People who would not recover under functional approach (pain and suffering, permanently in a coma) definitely recover
under civil law.
 Exemplary Damages?
o Art. 49 of QC Charter = Can be awarded “when the person who commits the unlawful interference has a state of mind
that implies a desire or intent to cause the consequences of his or her wrongful conduct, or when that person acts with
full knowledge of the immediate and natural or at least extremely probable consequences that his or her conduct will
cause.”
 The C.A. was correct to conclude that the appellants had unlawfully interfered with the patients’ dignity.
o Dignity guaranteed by s.4 of QC Charter
o The interference was intentional.
Holding:
The trial/appeal courts were right not to use the functional approach, and the appeal court was right to award exemplary damages.
Appeal dismissed.
Deterrence and damages:



Should this be relevant to tort? Or kept to criminal law.
No deterrence of pain and suffering because it’s not something we insure against. An argument for getting
rid of these kinds of damages altogether.
Should the tort system only give damages when you would pay someone outside the legal system? (Ie: you
broke someone’s window, you would pay to have the window fixed, but not for pain and suffering.)
Issues with Punitive Damages:
 CML: used to be restricted to certain cases (malicious prosecution, abuse of official powers, calculated to
make more profit than you’d lose through legislation ie pinto/defamation), but now you can get them in any
tort where behaviour is outrageous.
 CVL: traditionally do not exist because 1457 is redress for wrongs (although L-D’s statements in Hopital StFerdinand imply that non-pecuniary damages are about more than compensation).
o Possible for breach of the Quebec Charter.
o Possible when there is intentional interference (liberal definition of intentional - if you knew the
consequences you intended them -similar to gross negligence) Hopital St-Ferdinand
‘Wrongful Birth’
CML MacKay v. Essex Area Health Authority, [1982]
Facts:
Two plaintiffs are mother and child. Infant born disabled as a result of rubella suffered by her mother while pregnant. Plaintiffs allege
that but for the negligence of the defendants (health authority and doctor), mother would have had an abortion. Child claiming damages
on the ground of the doctor’s failure to treat the rubella, and against both defendants for her having “suffered entry into a life” of
distress.
Issue:
Can plaintiffs succeed on a claim of “wrongful life?”
Legal Reasoning (Court of Queen’s Bench, Stephenson J):
 If child was injured as a result of lack of reasonable care and skill of defendants (either in utero or after birth), she could have sued
them  BUT child was not injured by either defendant, but by the rubella which infected her mother absent anyone’s fault.
o Her right not to be injured before birth has not been infringed by either defendant, any more than if he had been disabled
by disease after birth.
o Neither defendant has broken any duty to take reasonable care not to injure her.
 The only right on which she can rely = a right to be aborted or killed
o The only duty which defendants can owe to the unborn child in this case is a duty to abort or kill her or deprive her of the
opportunity to live.
 With respect to the mother, it is said that the duty doesn’t extend that far. But complaint of the child is that their negligence
burdened her (and her mother) with her injuries  Defendants’ breaches of duty resulted not just in her being born, but in
being born injured.
 BUT as the injuries or deformities were not the result of any act or omission of the defendants, the only result for which they
were responsible was her being born.
o Child’s claim against defendants is not just that she suffered deformities. Her claim is that defendants were negligent in
allowing her, injured as she was in the womb, to be born at all  “wrongful entry into life” or “wrongful life.”
 Question = How can there be a duty to take away life?
o Child could have legally been deprived of life under Abortion Act 1967. But does not follow that doctor is under a legal
obligation to a fetus to terminate its life, or that the fetus has a legal right to die.
o ** Neither defendant was under any duty to the child to give its mother an opportunity to terminate its life. The
duty may be owed to the mother, but cannot be owed to the child.
 To impose such a duty would be contrary to public policy =
o It would mean regarding the life of a handicapped child as not only less valuable than a normal child, but so much less
valuable that it is not worth preserving.
o Would open up claims of handicapped children against their mothers for not aborting them.
 The only loss for which those who have not injured the child can be held liable to compensate the child is the difference between its
condition as a result of their allowing it to be born alive and injured and its condition if its embryonic life had ended.
o Courts cannot determine that the child has lost anything without the means of knowing what, if anything it has gained.
 It is not for the courts to make such a decision by weighing life against death  in principle discloses no reasonable cause of
action.
Holding:
The courts cannot weigh the harm caused to the child (being born disabled), because they cannot measure it against the unknown (not
being born at all). Furthermore, it would be against public policy to impose a duty to prevent a life.
CML McFarlane v. Tayside Health Board, [1999]
Facts:
Ms had four children and to limit the size of the family, Mr. M had a vasectomy and was told it was successful. However, Mrs. M then
became pregnant and gave birth to a healthy daughter. Ms brought action in negligence against health board, seeking damages for the
costs of rearing the child and for pain and duress suffered by Mrs. M during pregnancy.
Issue:
Can Ms successfully bring a claim for the “wrongful birth” of an otherwise healthy child?
Legal Reasoning: (House of Lords, Lord Millet)
 Positions of the parties:
o Plaintiffs = Ms claim defendants failed to take reasonable care to ensure that the information provided (that vasectomy was
successful) was correct, and that the unwanted pregnancy was a direct and foreseeable consequence of that negligence.
o Defendants = Do not admit negligence, but concede that unwanted pregnancy was the direct and foreseeable
consequence of their information being wrong. However, they deny that the conception and birth of a healthy baby is
capable of giving rise to an action in damages.
 The contention that the birth of a healthy baby “is not a harm but a blessing” is not an accurate formulation of the issue  Claimants
must prove that they have suffered an invasion of their legal rights and that they have sustained loss as a result.
o Injury = Occurred when (and if) defendants failed to take reasonable care to ensure their information was correct.
o Loss = Occurred when Mrs. M conceived. This was an invasion of her bodily integrity and threatened further damage
(physical and financial).
 Judgments in favor of rejecting a claim in respect of the financial consequences of the birth:
o Are heavily dependent on moral sentiment
o Are essentially claims in respect of pure economic loss
 In this case, distinction between “pure” and “consequential” economic loss are not relevant, especially because the
damage in question is the very thing the defendants were called upon to prevent.

The reasons why parents initially sought to avoid childbirth have sometimes been treated as material. But to consider the parents
motivations is a slippery slope:
o Is recovery to be denied simply because their motivation was not financial?
o The parents’ motives may have been mixed
o Motives cannot have been known to defendants, and cannot make their liability dependent on facts unknown to them at the
time.
 Traditionally two major arguments on which such claims have been dismissed:
1) The birth of a healthy baby is not a harm, but a blessing:
 Argument = Costs of providing for a child are offset by benefits supplied by its existence Presumed by the fact that parent did not
abort of place “unwanted” child up for adoption.
o Accepts that there is something distasteful if not morally offensive in treating the birth of a normal, healthy child as a matter
for compensation.
 This argument can be countered by three main arguments:
o Distinguish between birth of child and its financial consequences = It is not the child that is unwanted, and the child’s
existence is not itself the damage. The birth is simply the occasion by which the defendant’s negligence manifests itself in
economic injury to the parents. The loss is in the economic damage, not the birth or existence of the child as such.
 But aren’t the child and the economic consequences inseparable?
o Denying that the birth of a healthy child is always a blessing and nor a harm.
o Parents are the best judges of where their interests lie. They should not be treated as receiving a benefit when it is one
they have deliberately decided to forego.
b) The costs of bringing up the child are not the result of his birth but of the parents’ deliberate decision to keep it (rather than abortion
or adoption).
 It can never be unreasonable for parents to keep a child rather than aborting it or placing it up for adoption  BUT the argument is
that, however reasonable, the parent’s decision to keep the child breaks the chain of causation.
o The opportunity for choice was present and was made deliberately. Parents are not entitled to damages for the financial
consequences of making that difficult but ordinary human choice.
 Court does not accept the fact that this breaks the chain of causation.
 Defendants were engaged for the purpose of preventing such conception. If conception nevertheless occurred, its financial
consequences were clear and foreseeable. The costs of bringing her up are no more remote than the cost of abortion or
adoption services.
Conclusions:
 Nevertheless, this is not sufficient to allow plaintiff’s claim  It is morally offensive to regard a healthy baby as “more
trouble and expense than it is worth.”
o This applies to both claims for rearing the child and the mother’s pregnancy.
 BUT  They have suffered both injury and loss. They have lost the freedom to limit the size of their family and have thus
been denied an important aspect of their autonomy.
o Entitled to general damages to reflect true nature of the wrong done to them.
Holding:
Where medical negligence results in an unwanted pregnancy and the birth of a healthy child, parents not entitled to recover damages for
the cost of rearing that child. The law must regard the birth of a healthy child as a blessing, not a detriment. However, they can recover
for general damages due to loss of autonomy and the right to plan the size of their family.
DC Suite v. Cooke, [1995]
Facts:
S did not want to have any more children, so went to C for sterilization. However, C did not consult an important pathology report
which gave him information regarding the procedure (and could have prevented the procedure from failing). The procedure was
ineffective. S became pregnant and had a healthy baby.
Issue:
Can Suite claim damages for “wrongful conception”?
Legal Reasoning: (Quebec Court of Appeal, Chouinard J.)
 If the doctor is found at fault, he must take responsibility for the consequences.
o C was negligent in performing sterilization by not consulting report (fault)
o As a result, S got pregnant (consequence)
 Violated S’s right to choose the size of her family
 Public policy argument = “healthy baby cannot constitute an injury”
o Court  No rule of public policy prevents S from recovering in full the financial damage sustained by her as a result of
doctor’s negligence.
o This applies regardless of whether the child is healthy or abnormal
 * A healthy child can constitute an injury

CCQ 1607 = Just have to show that the damage occurred is a direct and immediate result of the fault – even though mother could
have had abortion/adoption, the child is still the direct and immediate consequence of the doctor’s negligence.
 However, must weigh costs and benefits of having child  in this case, the benefits are balanced with the costs and therefore
reduce the compensation awarded
 CVL places less emphasis on moral arguments than CML.
Held:
Yes. Quebec CVL is wiling to grant “wrongful conception” claim, recognizing that a healthy baby can constitute an injury.
Summary:
 Wrongful birth (doctors negligently didn’t tell mother something that, if she had known, would have led her
to get an abortion.)
o CML (McKay): Mother can sue for expenses arising from handicap (compared to raising a healthy
baby).
o CVL (Cooke v Suite): Mother can sue for full child-rearing cause. Simple but-for causation.
 Wrongful pregnancy (failed procedure and negligence)
o CML (McFarlane): A baby is a blessing, so you cannot get child-rearing costs (unless the child is
handicapped in which case you get the difference described above). But you can get all the damages
associated with the pregnancy (including non-pecuniary).
o CVL: You can get all the money needed to rear the child (including extra cost of raising a
handicapped child.)
 Wrongful life (child’s right to be aborted)
o Not a thing in either system. Implies a right to be aborted/that abortion is better than being born.
Court will not rule on this.
Intro to Duty of Care/Causation
CL – Palsgraf v. Long Island RR Co., 1928 NY [C2.43]
Facts: Conductors working for LIRR helped a man board a train, and in the process, negligently knocked a package the man was carrying
to the ground. The package contained fireworks that were detonated by the fall, although neither conductor knew this, nor could they have
known. The fireworks damaged the stonework of the station, which fell on and injured P, who was standing 30 feet away. P sues for
damages.
Issue: Is the LIRR liable to P?
Holding: No.
Reasoning: Cardozo (Majority): “Everyone owes to the world at large the duty of refraining from acts that may unreasonably threaten the
safety of others… [yet] Negligence is not a tort unless it results in the commission of a wrong” Dropping the package may have been
negligent, but not with respect to P, since it was not foreseeable that dropping the package would injure her – there was no indication it
contained fireworks. Hence there was no duty, thus there was no wrong.
Andrews (Dissenting): “Negligence may be defined roughly as an act or omission which unreasonably does or may affect the rights of
others.” The authority of Polemis suggested that the negligence in dropping the bundle is enough to impose liability for all consequences of
the negligent act, including injury to P, even if they were not foreseeable. A tortfeasor should be responsible for all the consequences of
which his tortious act was the proximate cause.
Ratio: (1) The concept of “Duty of care” is based on foreseeability, rather than causality (2) Duty of care will be the main method of
controlling liability.
Two ways of thinking about liability (representative of the common/civil laws):
Cardozo: Foreseeability  this view confirmed 4 years later in D v S (part of test for duty of care)
Andrews: Proximate cause  Civil law view (legal causation is the only factor limiting – encompasses duty of
care).
Duty of Care
CL – Home Office v. Dorset Yacht, 1970 AC [C2.47]
Facts: A party of Borstal trainees (juvenile delinquents) were working on an island under the supervision of 3 officers. At night, the
officers failed to watch over the trainees and 7 escaped. They went aboard a nearby yacht and while attempting to pilot it away, they
crashed it in to a second yacht owned by DY. DY sues the Home Office for damages, since the Home Office is the employer of the
negligent officers.
Judicial History: This case came to the House of Lords solely on the question of whether the Home Office owed a duty of care to DY.
Issue: Did the Home Office owe a duty of care to DY to prevent the trainees from causing damage after their escape?
Holding: Yes.
Reasoning: In general the common law accepts that “no person can be responsible for the acts of another who is not his servant or acting
on his behalf.” But here the alleged negligence is that of the officers, who are clearly servants of the Home Office. So the question becomes
to what extent the officers are liable for the acts of the trainees. Both judgements dealt heavily with public policy.
Diplock (Majority): “This appeal… raises the lawyer’s question: ‘Am I my brother’s keeper?’ A question which may also receive a
restricted reply.” He notes that due to common sense and public policy considerations, the state would not be liable for damage caused by
escapees two weeks after their escape, or if a borstal trainee was legitimately released but re-offended. But they are liable for certain acts
by Borstal trainees. So there must be some principle which determines when liability is imposed or withheld. He then adopts the criterion
of reasonable foreseeability to determine liability. So in this case, a duty of care was owed by the officers to everyone whose property was
foreseeably at risk of being damaged by an escaping trainee, since by taking the trainees outside their institution, the state created an
additional, foreseeable, risk for nearby property owners.
Reid (Minority): Reid adopts a causality-based view, and holds that people should be responsible for the acts of others that are the “natural
and probable” consequences of their negligence. This is a higher standard than foreseeability, which Reid argues is too broad and will
extend liability too far.
Ratio: (1) Reinforcement of “reasonable foreseeability” as the criteria for defining duty of care; (2) Courts may consider public policy
concerns in determining duties of care.
CL – Anns v. Merton London Borough Council, 1978 AC [C2.60]
Issue: What procedure should be followed to establish a duty of care between individuals, or between an individual and the state?
Holding: The Anns test.
Ratio: Creation of a two-stage test. First, there must be a “sufficient relationship of proximity” such that the defendant could reasonably
foresee that carelessness on his part might lead to damage to the victim. Second, there must not be policy considerations which “ought to
negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed, or the damage to which a breach of it may
give rise.”
Comment: Adopted by Canada in Kamloops v. Nielsen (see Section 6.1.2 below). Recall that duties of care are owed to classes of people,
not individuals in particular.
CL – City of Kamloops v. Nielsen, 1984 SCR [C2.60]
Issue: How should duties of care be established in Canada?
Holding: The Anns test.
Ratio: Canada adopts the Anns test. Exact wording of the Canadian interpretation of the test is:
(1) Is there a sufficiently close relationship between the parties… so that, in the reasonable contemplation of the [defendant], carelessness
on its part might cause damage to the [other] person?
(2) are there any considerations which ought to negative or limit (a) the scope of the duty and (b) the class of persons to whom it is owed or
(c) the damages to which a breach of it may give rise?
Clarified even further in Cooper v Hobart:
If the duty in question isn’t novel, you don’t need to do this test. Precedent? Or a categorical view of duty of care?
1.
Sufficient relationship of proximity/sufficiently close relationship:
a) Was the harm that occurred the reasonably foreseeable consequence of the defendant’s act?
b) Are there reasons, notwithstanding the proximity between the parties established in the first part of the
test, that tort liability should not be recognized here?
 Second part includes policy in the broad sense of the word.
 If it passes this part, there is a prima facie duty of care.
2. Are there residual policy considerations OUTSIDE the relationship between the parties that would limit
recognition of liability in tort?
What does proximity in the first stage of the test mean?
 Authorities which characterize the type of relationship in which duty of care arises



Categories not closed but proximity is generally established by reference to them
proximity = the close and direct relationship from D v S
Defendant’s relationship with the plaintiff is such that they are under an obligation to be mindful of the
plaintiff's legitimate interests when conducting their affairs
◦ Factors you can look at: expectations, representations, reliance, property/other interests involved.
◦ Diverse and depend on the circumstances of the case. No single unifying characteristic.
◦ Categories in which proximity has been recognized:
▪ Relationship is such that there is foreseeable physical harm (including nervous shock)
▪ Public office: negligent misstatement and misfeasance
▪ Prospective purchasers of real estate: inspect houses without negligence
▪ Government who have undertaken a policy of road-maintenance: execute it in a non-negligent
manner.
▪ Relational economic loss (related to performance of contract) sometimes when claimant has an
interest in the property
Second step:
 Effect of recognizing this duty on other legal obligations, the legal system, and society more generally.
 Does the law already provide a remedy?
 Would this recognition create the spectre of unlimited liability to an unlimited class of people?
 Government is not responsible for policy decisions, only operational ones. (Policy is the prerogative of the
elected legislature, but if it is executed negligently, government can be liable.)
 This second step usually only arises when a duty of care asserted does not fall into one of the recognized
categories. So seldom used.
Summary: duty of care = foreseeability + proximity, then policy considerations
 First part of test:
o Lots of different language used by courts: “close relationship”, “nexus” “proximity”
o Tension in Canada between traditional common law view (categorization) and civil law view.
 Tests are intentionally vague because if they’re too precise they end up squarely in
common/civil law thinking.
 Foreseeability in the first step of the test:
o Foreseeability in this sense means roughly probability (from Childs)
o At this stage foreseeability almost always passes. If something is “not reasonably foreseeable” it
usually goes somewhere else like in finding fault (Wagon Mound 2)
 Foreseeability MAY establish a duty of care. Sometimes it’s all you need: when an overt act
of the defendant has directly caused foreseeable physical harm to the plaintiff. (This is why
we sometimes don’t talk about it). Makes sense when looking at the common law. Standard
injury cases don’t need this discussion EXCEPT psychiatric harm ones. (Alcock). Turned it
into a duty of care case.
o Anns test at first made it sound like foreseeability was the only issue – makes duty of care
unimportant (not that this is wrong – not needed in civil law). But common law history shows that
there’s something else going on here.
 Main proof: duty to rescue. Not normally a thing in common law, but if duty of care is just
foreseeability, this doesn’t make any sense.
 Proximity (the “something else”)
o Really hard to pin down. Mostly just examples (traditional common law view – categories of duty of
care).
o Case has to be something like:
 Specific roles (parent-child, teacher-student) paternalistic relationships of supervision and
control
 Intentionally attracts and invites third parties (Crocker)
 Public function, commercial enterprise (statues, Jordan House commercial bar case)
CL – Childs v. Desormeaux, 2006 SCR [C2.113]
Facts: Z and C (ZC) hosted a BYOB party which D attended. ZC served no alcohol to guests apart from a single bottle of champagne. D
drank heavily at the party and had a history of drunk driving. However, ZC were not found to have known, or to ought to have known, that
D was too intoxicated to drive. While driving home from the party, D caused an accident in which one person was killed and three injured,
including Childs.
Judicial History: The appellant’s actions were dismissed by the trial judge for failing the second stage of the Anns test, and by the Court of
Appeals for failing the first stage.
Issues: Do private party hosts owe a duty of care to third parties injured by intoxicated guests after they leave the party?
Holding: No.
Reasoning: Although there is an obvious analogy between private and commercial hosts, McLachlin concludes that the analogy does not
hold, as private hosts have neither the ability nor the social consensus required to monitor guests’ alcohol consumption. Thus a fresh
application of the Anns test is required.
The first branch of the Anns test asks whether sufficient proximity exists between private party hosts and public motorists. McLachlin finds
that there is no proximity, because damage to Childs was not foreseeable and because the relationship between ZC and Childs did not
create proximity. The forseeability of D’s accident is ambiguous based on the findings of the trial judge, so D’s accident could not have
been reasonably foreseen. Furthermore, McLachlin concludes that there was no duty of care arising from the mere fact of hosting a party,
since a BYOB party does not fit any of the categories which create proximity among persons who would otherwise be legal strangers. ZC
neither created obvious risks, exercised paternalistic authority over D, nor exercised a public or commercial function. Thus D’s individual
autonomy prevails and he alone is responsible for his conduct. Thus ZC do not owe Childs a duty of care and the case fails the first stage of
the Anns test. Thus there is no need to consider the policy implications.
Ratio: (1) Application of the Anns test to private party hosts, so the ratio is that they do not owe motorists a duty of care unless they create
an abnormally risky situation (Note that this leaves open the possibility that slightly different party set-ups (such as selling alcohol,
providing it for free, or organizing drinking games) could lead to liability) (2) McLachlin defines three areas in which positive duties to act
are imposed: creation of risks, exercise of paternalistic authority, performance of public or commercial functions.
Secondary Victims (emotional and psychiatric harm)/Pure Economic
Loss
Emotional Harm:
Common law – phrased in terms of a duty of care issue (or content of duty):
 Traditionally no duty not to cause others emotional distress
o You don’t have a right to happiness/your mental state
o Insulting someone isn’t a tort (controversy surrounding anti-bullying legislation)
 If their mental state causes them to harm their person/property this could be viable if duty of
care/causation was proven
 From Van Praagh: almost all provinces allow for claims for emotional distress suffered by loss of close
family members through legislation. Details vary from one province to another.
 Started in 19th century Engliand Lord Campbell’s Act. Just pecuniary claims, not emotional
harms.
 1970s: Canada and UK introduced “fatal accidents legislation” claims for emotional harm,
usually small and in the legislation.
 Inconsistent with duty of care. But a pretty small exception within


If there is a breach of an actual duty of care (person/property) you can recover for emotional harm in
assessing the damages (pain and suffering)
o Phrased differently. Part of the value of the arm you lost, for example.
 Is this inconsistent or arbitrary? Or actually two different questions.
 Pain and suffering in contract – common law doesn’t like that but it expanded more now with
consumer protection.
Argument of the common law: on principle, you should not be able to recover for this because it is not the
right thing for the law to interfere with.
Psychiatric Harm
 Recognized psychiatric illnesses count as physical harm.
o Limited under duty of care ie: seeing the traumatic event on television does not allow for recovery
(Alcock). Civil law would address this under causation.
o Justifications for this view in common law:
 Can use very strict rules ie: NO ONE can recover unless you heard or saw event. Reading
about it in the newspaper not good enough.
 Judges worried about expansion of ambit of psychiatric illnesses.
 Lack of juries in civil cases changed a lot of this.
 Prevalence of the modern view of duty of care. Not about rights/liberty, just a control device
that we can invoke for a bunch of reasons, including keeping people out of courts.
o Result: decisions are very arbitrary.
Civil law:
 In principle there is no problem with claims for emotional harm upon death of a close family member
(Augustus case). Not under a statute – damages are at large so in principle you can recover almost any
amount.
o How broad? If you just make someone unhappy, this usually isn’t negligence. But why? Decided
under causation.
o Is this accurate though? For something like bullying, isn’t emotional harm more reasonably
foreseeable than the person physically harming themselves? (Also an issue in common law).
 All of the problems that exist in common law exist in civil law as well. Decided under causation. Not as
many “bright lines” like in the Alcock case
CL – Alcock v Chief Constable
Facts: Overcrowding in the stands at a soccer match in Britain resulted in 95 people being crushed to death and 400 others injured
The Chief Constable of police admitted liability in negligence (the police allowed too many spectators to enter)
Sixteen separate actions were brought against him by people who were related to the dead. Some of them were present at the match (but not
in the same area where the deaths occurred), others weren't.
They are claiming damages for nervous shock resulting in psychiatric illness resulting from seeing or hearing about their family members'
deaths or injuries.
Issue: Can the established law on claims for nervous shock-induced injuries be modified such that these family members are included?
Holding: No.
Reasoning: McLoughlin v O'Brian establishes the criteria for this type of claim. You can seek damages if the person who's died or been
injured is your spouse or child, and the resulting shock comes about by seeing or the event or hearing about it in person, or viewing its
immediate aftermath.
There was no foreseeability.
Only one of the claimants who succeeded before the trial judge was actually on the ground during the accident. He was the brother of a
victim, but did not try to claim that he had a special bond with his brother that would make his own shock reasonably foreseeable by the
chief constable (he didn't prove a sufficiently proximate relationship).
Ratio: Family members other than spouses and children must still prove sufficiently proximate relationship to the victim of an accident in
order to make a shock claim. Witnessing an event on TV is not sufficient to make a claim.
Comment: Shock is now considered its own type of injury (not a variant of physical injury).
It is the only case in which psychiatric injury can lead to recovery of damages (e.g. you can't claim damages for psychiatric injury from the
experience of having to cope when your loved one has died)
It is generally accepted that you can't be compensated when the psychiatric illness results from merely being informed of, or reading, or
hearing about an accident (must be near the scene of the accident).
Mental suffering alone is not a basis for a claim for damages (unless accompanied by physical injury)
An exception exists for damages for bereavement
If you injure yourself and this causes someone shock, they can't sue you
SUMMARY things that are important in assessing recoverability for emotional harm caused by death/injury of a 3rd
party:
1. Relationship of plaintiff to the victim
2. Proximity of the plaintiff to the accident (O’Brien rule: have to learn about it in the immediate aftermath of
the accident)
3. How the plaintiff learned about the event (must be sight/hearing – television MIGHT be enough if the
individual person you are emotionally connected to is shown).
Defamation:
 Public, about harm to reputation. Truth is a defense. Reputation is seen as something of a property right.
 A bigger deal than a lot of other torts. Someone negligently hits your car, not a huge deal in the long run.
But hate speech/harsh insults can affect you for your whole life.
Article 1056 CCLC
Van Praagh, “Who Lost What? Relationship and Relational Loss” [94]
 D v S is the bible for torts lawyers.
 CML: can't bring a claim against someone that stems from the death of another person (except nervous
shock and psychiatric injury). CVL opposite theoretical starting point.
◦ All CML provinces have fatal accident legislation: from Lord Campbell's Act. Broadens the area of
potential claimants. Also some of these broaden what losses count and can be compensated (grief, loss of
companionship). But biggest focus is relationship between claimant and injured/killed person.
▪ Nervous shock is also concerned with this. Is the secondary victim close to the primacy victim?
Shows common law is more concerned with grief/sorrow than psychiatric injuries. Injury to
relationship v injury to mind v injury to heart.
 CVL:
◦ Key question is what loss has been suffered and whether it is the result of the wrongdoing.
◦ CVL needs a harm. Is the injury of sufficient quality? Next big question is causation – direct and
immediate consequence.
◦ The “who” relationship between victims isn't explicitly stated but comes up in causation anyways. More
indicative of a direct and immediate link.
◦ Solatium doloris: compensation for grief SEPERATE from compensation for loss of companionship
(Gosset case – fact that it is mother and son is relevant).
▪ Focus is there case more on the objective factors like age of the deceased than how the plaintiff
actually grieved. This points towards companionship still being the focus, not grief. VP thinks this is
good because then you aren't inquiring too much into the personal experience of the plaintiff.
▪ The “what” necessarily involves the “who.”
DC – Régent Taxi v. Congrégation des petits frères de Marie, 1929 SCR [C2.80]
Facts: Brother Henri-Gabriel, a member of the Congregation, was injured while riding on a bus owned by RT. RT was found guilty of
negligent driving. The Congregation sues RT for medical expenses, property damage and damages due to the loss of Brother HenriGabriel’s services. RT appeals, claiming that the Congregation has no right to sue for an injury that was suffered by its staff.
Issue: Does the Congregation fall in the scope of “autrui”?
Holding: Yes.
Reasoning: Based on the wording of a1053 CCBC, there are two possible interpretations: only the immediate victim can recover for his
injury, or every person who suffers injury from a fault may recover for their injury. Doctrine and jurisprudence point towards the latter
view. Quoting Langelier: “… pour que celui qui n’a pas souffert directement de la faute d’un autre ait une action en dommages, il suffit
qu’il ait eu un intérêt actuel, moral ou matériel, à ce que cette faute ne soit pas commise.” They next debate the role of 1056 – does it
expand liability under 1053 or limit it (since the answer to this question suggests which interpretation of 1053 is correct). They decline that
1056 limits 1053, which implies that 1053 is broad.
Ratio: The word “autrui” includes everyone who can prove damage arising from a fault by direct and immediate causality.
Comment: Article 1053 reads “Every person capable of discerning right from wrong is responsible for the damage caused by his fault to
another (“autrui”), whether by positive act, imprudence, neglect or want of skill.”
See also: Augustus v Gosset
Pure Economic Loss:
 Very similar regimes to emotional harm in both legal systems
 Defining pure economic loss is hard. It’s a negative definition: anything that’s NOT pure economic loss.
Common law:
 No right to make profit. Just a right to what you own. So if you destroy someone’s merchandise, this is a
tort. If you steal their shop’s customers, it’s not.
 Historical view:
o Property right in your slaves (medieval times). Overturned in most common law jurisdictions (you
don’t have a right to your employees.)
 Example: someone negligently hurts you employee who has a very specialized skill. They
can’t work for a month, you can’t hire anyone else to do their job, and you lose money. You
can’t sue for this.
o Loss of spouse
 Wives were property so you could sue for their loss.
 Some jurisdictions statutes have made it so both spouses can recover.
 Lord Campbell’s act serves the same purpose. Doesn’t fit with the traditional view.
 Moving forward: Norris case
o Boat hits bridge, breaks it. Train company that uses the bridge (but does not own it) traditionally
cannot sue the boat company, even if they lose money from not being able to fulfill contracts.
o But in this case the SCC broke the traditional rule. Modern view of duty of care: more influenced by
economic loss than theoretical principles. Treated it more like psychiatric harm.
o But next decision did the opposite. So no one really knows what the state of the law here is.
Weller v. Foot in Mouth Disease Research Institute
1966, QB Div, Eng
Facts: Scientific studies were being done in the area on the disease and it was negligently let out reaching the cattle near the premises.
Because of this, cattle markets were closed. The Pl here is the auctioneer. He does not own any cattle but his business is related to the
cattle that die because of the foot in mouth disease. He is therefore not tangibly physically affected by the foot in mouth disease.
Issue: Is the plaintiff owed a duty of care? Can he recover
Holding: NO
Reasoning: Indirect victims suffering economic loss because of damage to direct victims cannot recover in negligence
- There isn’t much reasoning given, mainly the old rule is upheld. One of reasons given is the indeterminacy of who can be affected
as opposed to a one-time affect. Even though it was foreseeable that everyone in the area would be affected (since this is an
agricultural community), there is a ripple effect where more and more people can become plaintiffs. Only the cattle owners are owed
the duty of care.
Ratio: Cattle 1875 rule in common law was that there was no recovery for relational economic loss because it would always be too
remote. This is not duty language but is rather causation language. This is the position in civil law now and gets rolled into duty of
care question in current common law. This is a bright line no recovery rule.
Civil law:
 In principle you can recover.
 Historically: 1056 (key debate in Elliott) might have been a mistake. Someone writing the CCLC liked the
common law too much.
o Now 1457 makes it very clear that you can recover for pure economic loss.
o Control device: causation (direct and immediate)
o So in case described above of the employee with a specialized skill, you could probably recover. But
for someone doing a more general job you wouldn’t (just hire someone else – mitigation of damage).
 German civil law has the same rule as the common law – so you can’t talk about “the civil law” in general.
DC – Elliott c. Entreprises Côte-Nord, 1976 CAQ [C2.18]
Facts: While driving E hit an employee, G, of ECN. G had been working a double shift at ECN and was paid only a normal salary. He was
replaced by two men, each earning only slightly less than G did for doing half the work. ECN claims the salary difference between paying
both men and paying G alone.
Issue: (1) Does ECN fall within the scope of the term “another” in the sense of a1053? (2) If yes, can ECN recover for the pure economic
loss that E caused them by hitting G with his car?
Holding: (1) Yes (2) No.
Reasoning: (1) “Taken in its ordinary…meaning, the word “another” as used in a.1053 means any person at all to whom damages are
caused by the fault of any person…” This term should be interpreted very broadly. (2) Traditionally, Civil Law allows employers to
recover for accidents suffered by their employees only if the employee is “irreplaceable” or “irreplaceable in similar circumstances”. It is
not clear that G could have continued working two shifts, particularly since ECN’s business increased rapidly over the coming months.
Even after G returned to work, the two foremen remained employed at ECN. Thus ECN has failed to demonstrate a causal link between the
accident and their hiring of two foremen to replace G – they probably would have had to do so anyways.
Ratio: (1) The word a1053 “another”/”autrui” should be very broadly interpreted (2) Employers can sue for pure economic loss only if an
employee is irreplaceable at a similar cost.
Comment: Because civilians tend to use causality to restrict the scope of liability, they are less reluctant than CL judges to recognize a
“duty of care”/allow the right to sue. This case is a perfect example – ECN can try to recover damages, but the judge holds that it failed to
demonstrate causality.
Duty to Benefit/Rescue
Article 2 Charte des droits et libertés de la personne:
 Every human being whose life is in peril has a right to assistance.
1471. Where a person comes to the assistance of another person or, for an unselfish motive, disposes, free of charge,
of property for the benefit of another person, he is exempt from all liability for injury that may result from it, unless
the injury is due to his intentional or gross fault.
Van Gerven, Tort Law: Scope of Protection (excerpt) [156]
 Common law doesn't like liability for omissions, failures to act.
◦ Political argument: restricts a person's freedoms. Creates a duty on a large and indeterminate class of
people – common law hates this.
◦ Economic argument: Allocation of efficient resources = activity should bear its own cost. No
requirement of a person to spend money on someone else.
 Exceptions in English common law: existence of a special relationship with the plaintiff (parents/children),
if you have created a situation that benefits you esp economically and can be dangerous (bar with liquor
licence), duty imposed by law/ethical rules (professional)/general principle of good faith in society (English
law: kind of harm can matter), failure to prevent the deliberate wrongdoing of a third party,
An Act to Promote Good Citizenship (Quebec Law)
2: A rescuer who sustains an injury or, if he dies therefrom, a dependant, may obtain a benefit from the commission.
12: The claimant keeps his right to recover from the person responsible for the injury or death, the amounts required
to make up, with the indemnity, an amount equivalent to the loss sustained.
The Good Samaritan Protection Act (Manitoba Law)
 No liability for a rescuer unless gross negligence unless they are employed as a rescuer (or volunteer or
whatever) or do so for personal gain.
N Kasirer, Agapè [161]
See also: Childs v Desormeaux
CL – Crocker v. Sundance, 1988 SCR [C2.172]
Facts: C got drunk at S’s resort complex and entered a tubing competition. He was drunk at the time he signed the entry form, which also
contained a liability waiver. He was obviously drunk and warned by S’s officials, although no one stopped him from racing. During the
race, he fell off the tube and severely injured himself.
Issue: (1) Did S owe C a duty of care? (2) What was the content of this duty? (3) Did they breach it? (4) Was there a causal link between
their breach and C’s injury? (5) Does the waiver absolve them of responsibility? (6) Was C contributorily negligent?
Holding: (1) Yes (2) Positive duty (3) Yes (4) No (5) Yes – 25%.
Reasoning:
Duty of Care: The relationship between C and S was very close, and furthermore, S was profiting from C’s presence at their resort, his
consumption of alcohol and his participation in the race. S’s officials had repeated interactions with C. There was thus a close nexus
between them and this justifies imposing a duty of care.
Content of Duty/Breach: Positive. S had a duty not to allow a “clearly incapacitated” people from participating in their risky activities. A
mere “duty to warn” is not enough. S had to take all reasonable steps to prevent C from participating.
Causality: The argument that tubing is an unskilled activity and therefore just as dangerous for a sober person as a drunk one was rejected
out of hand.
Waiver: The waiver is not valid because C was drunk when he signed it and could not provide consent.
Volenti: Equally, it is not clear if C could have consented to the legal risks as required by volenti since his mind was clouded. He may have
assumed the physical risks, but the mere act of participating in the activity does not constitute an implicit waiver.
Contributory Negligence: The 25% award was not appealed, so it will be allowed to stand.
Ratio: (1) Organizers of risky activities have a duty to prevent visibly incapacitated persons from participating (2) This duty is a positive
one, and includes all reasonable steps to prevent participation (3) Common Law courts are more willing to recognize positive duties of care
wherever there is reasonable foreseeability and a special relationship between persons.
Comment: It’s not clear how important the role of S’s profit-making was in imposing the positive duty.
It’s rare that the courts will say someone is reasonably unforeseeable/
Revisiting Causation (Directness and Foreseeability) – Remoteness/Legal
Causation/Proximate Cause/Causation that is NOT but-for causation:
Class notes:
 A question that can’t be separated from the law. “Should we, in law” hold you responsible?”
 On the surface, civil and common law look different but in reality the difference is recent and the systems
are deeply similar.
 Tests can’t explain everything. Instead look at past cases (categorization in a similar way to duty of care).
o Smith thinks ordinary intuition can solve the cases. Results are predictable, reasoning isn’t.
 Fits with the difficulties determining “cause” and “responsibility” in everyday life. Takes into
account so many things.
Hart and Honoré, Causation in the Law
P Cane, Chapter 5, pages 118-129
Common Law
Test: REASONABLE FORESEEABILITY:
 Common law judges more than civil law judges try to pin down meaning, have a coherent theory.
CL – In re Polemis, 1921 KB [C2.130]
Facts: Some workmen negligently dropped a plank onboard a ship owned by Polemis. The falling plank ignited a spark, which in turn
started a fire that completely destroyed the ship. Polemis sues for damages, while the defendant company claims that since the spark and
the fire were not foreseeable, they should not be liable.
Issue: Should tortfeasors be responsible for the unforeseeable consequences of a negligent act?
Holding: Yes.
Reasoning: Bankes: “Given the breach of duty which constitutes the negligence, and given the damage as a direct result of that negligence,
the anticipation [foreseeability] of the person whose negligent act has produced the damage appears to me to be irrelevant.”
Warrington: “If [an act is negligent] then the question whether particular damages are recoverable depends only on the answer to the
question whether they are the direct consequence of the act.”
Scrutton: “…the fact that the damage [the act] causes is not the exact kind of damage one would expect is immaterial, so long as the
damage is in fact directly traceable to the negligent act.”
Ratio: Provided some damage is foreseeable from a negligent act, the defendant will be held liable for all direct consequences of his
negligence.
TEST: TOO BROAD. Pretty much allows recovery for everything as long as some type of injury is foreseeable.
CL – Overseas Tankship Ltd. v. Morts Dock and Engineering, 1961 AC [C2.131] (Wagon Mound 1)
Facts: OT’s engineers spilled large amounts of oil in to the water. This oil washed up around MDE’s drydock. MDE was aware of the oil,
but did not believe it would burn, so they continued working. Something ignited the oil and the dock suffered extensive damage. Before
ignition, there was minor direct damage from the oil as well.
Judicial History: The trial judge found that OT could not have reasonably anticipated the ignition of the oil, but applied Polemis, since the
minor direct damage was foreseeable, thus OT was held liable for the fire as well.
Judicial Future: Wagon Mound 2 will decide that the fire was foreseeable. This explains the contradictory holdings.
Issue: Is OT liable for the damage caused to the dock by the fire?
Holding: No.
Reasoning: The rule of Polemis must be rejected because it is illogical and unjust. “It is a principle of civil liability… that a man must…be
responsible for the probable [foreseeable] consequences of his acts. To demand more of him is too harsh a rule, to demand less is to ignore
that civilized order require the observance of a minimum standard of behaviour… It would be wrong that a man should be held liable for
damage [that is] unpredictable by a reasonable man because it was ‘direct’ or ‘natural’…” After all, we only hold someone responsible for
the consequences of his acts because it was possible for him to foresee and thus prevent them. Polemis can be reinterpreted by assimilating
the concept of direct and natural consequence in to foreseeability.
Ratio: Even if an act is negligent, the defendant is liable only for damages which are a foreseeable consequence of the act.
Comment: Note that the holding here does not affect the thin skull rule or Rylands v. Fletcher.
TEST: TOO NARROW. Doesn’t fit with the thin skull rule (this is only about damage to property though).
CL – Hughes v. Lord Advocate, 1963 AC [C2.148]
Facts: Post office workers were repairing underground cables, which were accessible via a manhole entrance. The road on which they were
working was deserted and they had never been bothered by children. The work site was surrounded by warning lamps which burned
paraffin oil. While the workers were away on a tea break, two boys entered the work site. They attempted to explore the manhole entrance
and while doing so knocked or dropped one of the lamps in to the hole. This triggered an explosion and both children were gravely injured.
Issue: Was there a causal connection between the workmen’s fault (leaving the work site unattended) and the injuries suffered by the
children?
Holding: Yes.
Reasoning: Lord Reid: The workmen owed a duty to the children to prevent them from playing at the site. They breached that duty and as
a result the children were hurt by the lamps. Although the manner and the degree to which they were injured was unexpected, there is no
denying that the injuries were caused by a known source of danger. “The defendant is liable, although the damage may be a good deal
greater in extent than was foreseeable. He can only escape liability if the damage can be regarded as differing in kind from what was
foreseeable.”
Lord Guest: Focusing on the unusual chain of events leading up to the explosion ignores the larger question of whether damage from the
lamp was foreseeable. The site was clearly an attraction to children, and once children were at the site it was foreseeable they would play
with the lamps. It was then foreseeable that the lamps would be dropped or broken, resulting in damage via burning. The explosion was just
one particular instantiation of this damage by burning.
Ratio: As long as the type of damage is foreseeable, the defendant will be liable for the full extent of the harm he has caused.
TEST: Type vs amount of damage. A good balance.
Starck, Roland & Boyer, Obligations: Responsabilité Délictuelle
“… le juge est amené à opérer un classement entre tous ces antécédents et à ne retenir que certains d’entre eux, qui
constitueront la cause juridique.”
Civil Law:
1607. The creditor is entitled to damages for bodily, moral or material injury which is an immediate and direct
consequence of the debtor's default.
TEST: Direct and immediate consequence.
 Remember: legal causation does the job that duty of care does in common law – knocks out a lot of cases.
 Test could be this vague because they don’t want to be too closely bound by it.
DC – Brisson c. Potvin, RJQ 1948 [C2.138]
Facts: P parked his van on the sidewalk forcing pedestrians were to walk out on to the road and in to oncoming traffic in order to get
around it. B walked around the van and in to the opposite lane where she was hit by T’s car. B sues P.
Issue: Is P liable for B’s injury?
Holding: No.
Reasoning: Pratte (Barclay and Bissonnete concurring): P’s parking decision was clearly a fault, either because it breached municipal
bylaws or simply because it breached common sense use of sidewalks. Only causality is unclear. We must ask if the accident was the
“normal and foreseeable” consequence of P’s parking. The act of another, if this act has a more direct relationship to the damage and is not
normally foreseeable, will break the chain of causation. In this case, the accident was not a normal and foreseeable consequence, since P
could not foresee the presence of children, nor that B would choose to cross at the point where she had limited visibility. Lastly T’s car was
a more direct cause of the accident. All of these factors suggest that P’s parking would not “normally and foreseeably” lead to B’s injury.
Galipeault (concurring): B failed to prove that P’s parking was in any way the natural, direct and immediate cause of the accident.
St-Germain (dissenting): The collision was ultimately caused by P, whose parking forced motorists in to the wrong lane and blocked B’s
vision. The correct test in this case is directness rather than foreseeability. B is six years old, and it is unfair to hold her responsible for not
making the best possible calculation as to visibility. Likewise, the only reason T was driving through a dangerously narrow space in the
first place was P’s parking. All the causes of this accident trace back to P.
Ratio: (1) Ambiguous role of foreseeability in Québec jurisprudence (2) Acts of third parties break the chain of causation is they have a
more direct link to the injury.
This case was poorly decided – test “normal and foreseeable” is common law, not civil. Influenced by the way the
judges read the facts?
Fact that the majority decided this on causation (not fault) is weird.
DC – Morissette c. T. McQuat and Sons, RJ 1958 [C2.145]
Facts: M transported a truck full of propane cylinders to T’s warehouse. While reloading his truck, the chain he used to secure the
cylinders broke. M lost his balance and fell from the loading platform. He landed on a spike that was used by T to secure the doors to the
warehouse. The spike gravely injured him.
Issue: Was the spike the cause of M’s injury?
Holding: No.
Reasoning: Bissonnette: The direct causes of an event are not just those factors which made the event possible, but rather the “efficient”
factors that actively brought the event in to being: “il est essential que ce soit par cette chose et à cause de cette chose que le prejudice ait
été en quelque sorte enfanté.” In this case the spike was not normally a danger to anyone, and only when the chain on his truck broke did M
fall from the platform on to the spike. Even if the spike was abnormally (and even imprudently) sharp, it was still not dangerous until other
factors intervened. Thus it was not the direct cause of the accident.
Hyde (concurring): Even if the spike was not there the M still could have been injured from the fall; the spike was thus neither necessary
nor sufficient cause of M’s injury.
Ratio: Environmental factors which are merely “permissive” rather than “efficient” causes, are not normally treated as legal causes.
DC – Joly c. La Ferme Ré-Mi, 1974 CA [C2.147]
Facts: J hit a pole carrying power lines owned by Hydro Québec. This caused a power outage at FR’s chicken farm. Air ceased to circulate
and since FR had no backup generators, despite his best efforts, the chickens suffocated. Hydro Québec’s repair team did not arrive in time
to prevent this.
Issue: Did J cause the deaths of FR’s chickens?
Holding: Yes.
Reasoning: Kaufmann: Neither Hydro Québec nor FR were found to be at fault in this case. Thus J’s accident is the sole reason for the
power outage and the sole reason for the deaths of the chickens. Thus there is a direct causal link between J’s fault and the damage suffered
by FR. Note that Kaufmann appears to include reasonable foreseeability in his definition of direct causality.
Crête (concurring): Repeats what Kaufmann said (but in French) then adds: “Il arrive qu’un accident banal ait des repercussions
considérables dans la realisation du prejudice. Ce factur n’atténue en rien la responsabilité qui en découle. ”
Gagnon (concurring): Points out that arguments based on foreseeability of damages are only relevant to common law, and do not limit
damages here in Québec. “Le caractère inusité du résultat invite le juge à la vigilance, mais il ne rompt pas le lien de causalité.”
Ratio: Foreseeability is not used to analyze causality or limit the extent of damages in Québec.
Public Authorities:
Plenary Notes:
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Issues
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How does private law of civil wrongs define the scope of liability
Delineating according to the relationship between the parties
Now we come to looking at liability of the State; looking at the nature of the alleged tortfeasor/actor who might be held
responsible for the fault
Within duty of care, but could also fit into “wrongfulness”; can we think of a government or public authority committing a wrong;
could also fit into causation, the problem might also be connecting the behaviour to the victim’s prejudice
o We know that these are not mutually exclusive
o When looking at problems involving the State, we could look at all these categories
o Today, we look at this through the lens of DOC because, in Canada that is how the courts approach the question
Uniform approach: won’t have different reasoning/results in DC and CL
What are questions we might ask ourselves when State is the defendant?
What would it mean to say that the State would be liable?
Is the government, the “state”, a defendant like any other individual or business?
o Is state liability is something separate, it has to be because there is something different.
o What is special about the state?
Does it make sense to think about the “civil liability” of the state in the same way as we have thought of civil liability for personal
wrongdoing?
How are civil liability claims made against government dealt with in law? By courts?
o Does the fact that state is being sued mean we have to address the issues differently? Do we need to ask different
question?
Is the government, the “state”, a defendant like any other individual or business?
 In case law, typically an agent of the State (can go all the way down to municipalities)
 What are the interests that the law of civil liability trying to protect?
 Distinction between collective versus individual interests
o Tort law, mainly individual
o What about when defendant is a corporate entity?
Vicarious liability: what do we do about charitable organizations? Should we treat them differently? They don’t have
personal interests.
 SCC says that there is no special status of charitable organization. In Bazley, the court says that in assessing, we
might take into account that it is a charity (don’t want to disincentivize charities).
o Nuisance cases
o Whenever you have a clash between collective and individual, courts struggle to bring them into the paradigm of private
tort law
Summary:
o Different from individual:
 No liberty interest to protect – interest in action or in security
 The state is accountable for actions through political process
 You can sue them, and also not vote for them at next election
 Also, Charter challenges, jurisdiction challenge
 Do we need to use private tort law to address our problem with the State or are there other ways to do
this?
o Different from business or other private organization
 Not pursuing own self-interest; no option to exit market
 Today is regulatory State, government collects lots of money but it is different than a business who has
full power over own interests
 The government doesn’t have an opt-out for any market; State can’t ‘quit’; doesn’t have option to close
shop and move onto other things
o How is State similar to any other defendant in civil liability?
 Like a legal person (business), it acts through individuals who can and should consider risk to others (State
doesn’t act)
 It can cause harm to other through its action or inaction
 It has the ability to compensate victims (deep pockets)
 It may be the cheapest cost-avoider in the sense that it might be the party who has the easiest/most efficient way
of avoiding a particular loss (it would be fair to impose on them the need to avoid the harm)
 It may have the most information and the best means to avoid injury (has ability to gather information and is
therefore in a good position to know exactly what it should do to avoid a particular risk)
o
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Does it make sense to think about the “civil liability” of the state in the same way as we have thought of civil liability for personal
wrongdoing?
 Notions of liberty, autonomy, equality, dignity do not really attach to states
o Main foundation for civil liability based on fault does not appear to apply
o Concept of “corrective justice” meaningless reference to a state
 It could not be a plaintiff, only a defendant
o Need to maintain separation of powers – not let courts act like parliaments
 Van Boom article: the courts already do this in a number of ways (engaged in a review of State policies)
 State stands in different relationship with individuals and legal persons than these do as between each other
o State must act in relation to collective or diffuse interests as opposed to individual interests
 Think about this in terms of the average citizen otherwise you would have to have different rules for different
people
o Role of state may be limited to providing environment to support individual liberty and autonomy
 State should do as little as possible/doing the minimum and allowing people to make own decisions
o State acts as arbiter between conflicting or intersecting social interests
 Where should priorities be between healthcare and education?
Examples
1) L’Isle-verte: Fire in seniors home
 Issue (claim): If they had required sprinklers in seniors’ home (legislation), this fire would have been avoided.
 Cost of installing sprinkler systems: millions
 We know that there is a way of avoiding the injury (sprinklers), and the state has the power (and information) to engage in this
behaviour. Maybe this isn’t the way we should be thinking about it. Maybe there are other actors to consider (owner of nursing
homes).
 Ontario, PEI, NFL all have mandatory sprinkler legislation
o This was a response to an accident
o Governments want to seem like they are doing something
2) XL Foods E. coli recall
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3)
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Distinction between absence of regulation and should we be able to use private law to complain
Here it is different, there are rules, but the claim is that the rules are not enforced
Lac Megantic derailment
Regulatory additions that have been made since
Rail companies are acting in absence of any regulations!
State liability: idea of that if there was legislation, this tragedy wouldn’t have happened. We know thought that this isn’t the case
though.
How are civil liability claims made against government dealt with in law? By courts?
 Originally, there was immunity
o The King can do no wrong
 Modern view is that the State can do wrong and can be sued
o Legislation provides for it
o Federal: Crown Liability and Proceedings Act
o Provincial: Crown Proceeding Act
 Quebec: Art 1376. The rules set forth in this Book apply to the State and its bodies, and to all other legal persons established in
the public interest, subject to any other rules of law which may be applicable to them.
o New, wasn’t in the old code
o Last part imports public law rules into the private law regime (hybrid nature of Quebec Civil Law)
o “Other rules of law”: public law, therefore common law origin; significant dimension of Quebec’s nature as a “mixed
jurisdiction”
o we are going to have a strange combo and make them somehow fit together when deciding how to go about suing State in
Quebec province
 Modern liability law in most jurisdictions preserves some sphere of immunity against civil claims against the State
o Where harm is allegedly caused by exercise of political power of the State such as
 Enactment of a specific statute
 Decisions about allocation of scarce public resources
 Exercise of executive discretion
o Typically considered “non-justiciable” except perhaps in cases of bad faith
 Scope of state liability
o Problem: Identifying those areas of state activity that fall within the sphere of protection (or immunity) against civil
liability claims
o Policy decision versus operational decision
o Van Boom: hardest area to define is “failure to regulate”
 Van Boom & Pinna: What would such liability achieve? Does it achieve…
o Deterrence
o Compensation
o Accountability
o Fact-finding
o Feedback on regulatory process
 Van Boom & Pinna: counter arguments
o Sufficient accountability through political process
o Alternative instruments to evaluate behaviour of regulators (administrative law)
o State is not normal citizen
 Special powers and position, needs for flexibility in action
o Chilling effect – defensive legislation (in order to protect themselves)
o Resource Implication
Cooper v Hobart (SCC 2001)
 Facts: investors lost money because mortgage broker in BC broke the law
 Claim: BC mortgage regulator should have intervened earlier to stop mortgage broker’s activities
 Is this “failure to regulate” or “failure to enforce”?  Failure to enforce
 Immediate cause of loss is the mortgage broker but he is bankrupt! So investors look to see who could have prevented this
consequence. They look to the regulator.
 Defendant’s argument:
o BC government says that does not owe a duty of care to the investors
o How is this possible?
 Not sufficient proximity between the parties (Court tries to re-articulate the test)
 SCC says:
o
o
o
o
o
o
o
Start from Anns as adopted in Kamloops
Treating state like any other defendant; this is a tort case and the state is just like any other defendant
Proximity in first stage is more than just reasonability. Foreseeability of the plaintiff or plaintiff class; goes to nature of
relationship between the parties
 Proximity goes to the “closeness of the relationship between the parties” and “whether it is just and fair having
regard to that relationship to impose a duty of care on the defendant”
 Factors may include: expectations, representations, reliance, property or other interests involved
Distinction between “government policy” and “execution of policy” is a second stage consideration
Comes into play only once a prima facie duty of care has been found at the first stage
Step 2 broader policy concerns: Even if there had been proximity, they would have rejected at second step of analysis
Conclusion: no duty of care. It is foreseeable but no proximity (looked at Statute to decide if there is proximity…State
only acts under statute (legislation or Constitution))
Williams v. Ontario
 Complaint that government didn’t properly intervene to react to SARS outbreak
 Defendant’s claim
o Ontario doesn’t owe a private law or common law duty of care to the defendants
 Admits reasonable foreseeability
 Re proximity: clear from Cooper v Hobart that analysis starts from statute:
 Issue is whether it discloses a duty to the public in general or contemplates a duty to individuals that
would give right to a private law right to compensate
 Ontario Court of Appeal concludes that there is no proximity and therefore no duty
Conclusion
 There is no immunity: State or government can be sued for damages under the general rules of civil liability
 Where government is merely enforcing regulation, allegations of fault/negligent enforcement (and vicarious liability of employer)
may well give plaintiff access to compensation; courts will intervene
 Where claim attacks state’s decision to act or not to act, or the way in which the state has defined the sphere of acting, civil
liability may not be appropriate way to respond to resulting harm; courts will not intervene
 Does not lead to predictable results: depends on way statute is interpreted, depends on political climate…
Reading notes:
Boom and Pinna, Second-guessing policy choice or showing judicial restraint?
 Should the court be second-guessing policy choice or should it show judicial restraint?
 Distinction between failure to regulate and failure to enforce existing regulatory law
 Failure to regulate: the use or omission to use public powers to regulate the behviour of citizens
 Regulation: “any system of rules intended to govern the behaviour of its subjects”; “a distinctive
set of techniques used by States to control the operations of markets”
 Netherlands:
1. No truck mirror causing deaths
a. No regulation and no superior legal rule compelling the regulator to devise a
rule
b. Liability would have to be based on wrongful omission
2. Nursing home employee struck in face with opening door
a. Has power to put in place more stringent regulations, but it doesn’t
3. Fireworks depot explodes; owners were not in compliance with regulation and local
authorities knew
a. Failure to enforce
 Failure to regulate:
o Liability for failure to regulate is exceptional
o Legislative acts are owed to the public in general and not to individuals
 French prefer second-guessing
o Liability of the State is based on fault and is not a case of strict liability
o State is not under an obligation of results, only an obligation of means (i.e. not liable for
all damages, just the ones that were known or should have been known
o It is under a duty of supervision and vigilance and under a duty of reaction
Boom, Comparative remarks on civil law codifications of tort law
 Relationship between judiciary and legislature
Reference Re Broome v Prince Edward Island [2010] SCC
Facts: B alleged physical or sexual abuse as children while they resided in a privately owned and managed
children’s home (“Home”) between 1928 and 197
Issues: Did the Province (1) owe a general duty of care to the children; (2) have a non-delegable duty in
respect of the care given to the residents of the Home; (3) was vicariously liable for the acts or omissions of
the Board of Trustees who were entrusted to operate the Home, or the volunteers or staff at the Home; or
(4) owe a fiduciary duty to the residents of the Home?
Holding: No. Appeal dismissed.
Williams v. Ontario, [2009]
Facts:
SARS. Plaintiff is framing claim in negligence: Specifically, Ontario’s failure to control the first outbreak, failure to
properly manage prevention measures, failure to have in place an adequate public health system, failure to issue proper
directives and prematurely lifting the state of emergency. Plaintiff alleges that Ontario knew or should have known that
failure to eradicate SARS completely would result in a recurrence. Furthermore, alleges that Ontario’s actions were
motivated by bad faith – concern over WHO travel advisory on Toronto.
Issue:
Does Ontario have a private law duty to individual citizens that would allow a claim against the government for their failure
to prevent spread of SARS?
 The issue is only whether Ontario can get a summary judgment, or if the case has enough merit to go to trial.
 Ontario bases claim for summary judgment on Eliopoulos = While Ontario did owe a public law duty to prevent
spread of West Nile virus, there was no relationship of proximity between plaintiff and Ontario giving rise to a
private law duty of care.

Legal Reasoning (Sharpe JA):
1) Does the case fall within a recognized category under the Cooper-Anns test?
 Court finds it necessary to assess the claim using Cooper-Anns test. Facts of the case do not fit into any preestablished category giving rise to duty of care.
2) Proximity
 Ontario accepts that alleged harm was foreseeable  issue is only whether there was a relationship of proximity
between Ontario and plaintiff.
 Eliopoulos:
o Exercise of discretionary powers to take measures to protect the public from the spread of infectious
disease did not create a private law duty.
o Powers are to be exercised in the “general public interest” and are not aimed at the protection of the
private interests of specific individuals.
o In such circumstances, government must balance a number of competing interests – inconsistent with
imposition of a private law duty of care.
 Cooper and Edwards
o Both cases involved claims by specific individuals alleging that they had suffered loss as a result of the
failure of a public authority to exercise its supervisory and investigative powers.
o In both cases, was found that public authority owed no private law duty of care.
 Proximity argument in this case is even weaker than Cooper or Edwards  Those cases pertained to a narrow class
of individuals. This case is concerned with a general risk faced by all members of the public and a public
authority mandated to promote and protect the health of everyone in its jurisdiction.
o This risk is highly generalized  impossible to find requisite proximity.
 Court rejects plaintiff’s arguments that:
o Ontario’s issuing of directives to hospitals was sufficient to establish relationship of proximity.
o This case should be distinguished from Eliopoulos because of the nature of the disease and/or how it is
spread.
3) Residual policy concerns
 Even if this case had passed the first stage of the Cooper-Anns test, it would still fail at the second branch due to
overriding policy concerns.
 It would create an unreasonable and undesirable burden on Ontario that would interfere with sound
decision-making in the realm of public health.
o Public health priorities should be based on general public interest. Inconsistent with recognizing private
law duty of care in such cases.
 Does not rule out ability of plaintiff to claim damages as a result of negligence at the operational level.
 Plaintiff cannot support generalized claim of bad faith at the policy level.
Holding:
Plaintiff’s case fails at first stage of Cooper-Anns test due to lack of proximity. Even if it had passed, would fail at second
stage due to overriding policy concerns. Ontario owes a public duty to protect health, but this does not (and cannot)
translate into a private law duty of care.
Multiple Wrongdoers and Multiple Causes
Judges talk about breaks in the chain of causation:
 Makes it sound like a logical test, but that would be factual causation (but-for test and some modifications)
 Not what’s going on at this step. More about whether a person should be held legally responsible.
(Remember: equivalent of duty of care in civil law! Has to do with excluding certain kinds of relationships
from liability).
 Also things that happened before the incident in question can be an issue here – so the “chain” metaphor
doesn’t work.
Apportioned liability (contributory negligence):



Common law: more than 2 wrongdoer
Civil law: called “joint/several liability”
You can sue 1 defendant and they have to pay the whole amount. But than defendant can sue the others who
are liable for their portions.
o In the common law, this is a new idea. Used to be just novus actus intervenus – complete bar to
recovery. Only one person could be liable (think of Minto case – it would be the rapist).
CL - Q. v. Minto Management, [1985]
Facts:
Plaintiff was raped in her apartment by an employee of her landlord, who had probably gained access to the apartment with a master
key. Another woman had been raped three months earlier by the same employee. Landlord knew about earlier rape and knew it likely
had been committed by someone with a master key. But he did not warn the tenants or take additional security steps. Plaintiff brought
action for personal injury against landlord.
Issue:
Can the landlord be held liable for the rape of the plaintiff despite the intervention of intentional criminal conduct by a third party?
Holding:
Yes. If intervention is foreseeable, original negligence will still be the effective cause.
Legal Reasoning (Gray J):
 Action of the rapist (H) was not too remote as to be reasonably foreseeable.
o M may not have foreseen that H was the rapist, but the risk of the same person entering in the circumstances was a
foreseeable risk.
 Law with respect to intervening intentional and criminal conduct:
o Damage may have to be paid for by a negligent actor who creates an unreasonable risk of such a consequence.
o The “intervening act” was not a “fresh, independent cause”  The person guilty of the original negligence (M) will still be
the effective cause if he ought reasonably to have anticipated such interventions.
Difference between this case and Brisson (supposedly): no novus actus intervenus. A reasonably foreseeable danger
(common law terminology).
Contributory negligence: Smith thinks if the landlord was to sue the rapist, he would get 100%. Otherwise unfair –
criminals have to pay less damage in tort when someone else unintentionally contributes.
 Issue of intentional v negligent act
 Interaction between criminal and tort law – we can make the rapist pay less than 100% of damages because
there will be consequences for him in criminal law (but these are not normally based on the victim’s wellbeing).
Breach of contract (think back to vicarious liability cases): employer will recover 100% of damages from the
employee.
Civil law:
 Issues of multiple wrongdoers where neither is a novus actus intervenus.
 Usually they will be held 50-50 responsible. Not clear how judges come up with this number.
o But what about expert testimony? Ie: Adler case: Expert painters/janitors testify. One says mistake is
TERRIBLE, other says not as clearly careless (not careless in all cases even though in this on a
balance of probabilities it was careless in this situation).
o Or: two people driving over the speed limit caused an accident – one was 20km over and one was
100km over.
 When courts don’t use 50-50 they say “more serious fault” but does this mean that they did something worse
or just more important to the accident.
DC - Deguire v. Adler, [1963]
Facts:
A administers a vacant apartment on behalf of owner (D). A was also a contractor and hired painters to work on apartment 6, who shut
off the gas flow to the apartment and disconnected the gas pipes inside the apartment from the stove. Weeks later, 2 workers hired by D
accidentally turned on the gas flow to the apartment, but did not reconnect the stove. Gas began to fill the unoccupied apartment. A few
hours later a potential tenant was being given a tour they noticed the smell of gas and left immediately. Despite opening the windows
and shutting off the gas, an explosion occurred 15 minutes later, the exact cause of which was unknown. The explosion harmed V, the
adjacent tenant.
Issue:
Who is responsible for the explosion? If both, how should liability be apportioned?
Legal Reasoning
3 factors are causally connected to the explosion and injury:
 (1) Failure to reconnect the stove by the painters employed by A
o Fault = Painters should have foreseen that leaving stove unconnected could lead to risk of accidental opening of gas. Fault
was a direct cause of the explosion.
 (2) Accidental resumption of gas flow to the apartment by D’s workers
o Fault = Workers opened the gas line without inquiring first why it had been shut. Had they done so, might have led them
to realize stove was disconnected.
 (3) Whatever produced the spark
o This is a fault, but cannot determine who committed it.
o Presence of this fault doesn’t negate liability for the earlier two faults.
* Thus there is a “concours des fautes,” which caused the explosion and in which D & A were both equally involved  responsibility
should be shared equally between D and A.
Casey J (concurring):
 “Where an accident arises in consequence of independent acts of negligence committed by two sets of persons, both directly
contributing to the accident and to the injury suffered by the plaintiff, each is severally answerable under the law of Quebec to
the plaintiff for the damages sustained by him; a principal which is applicable here.”
 It doesn’t matter whether the independent acts occurred simultaneously or sequentially.
Rivard J (concurring):
 It is the union of the two faults together which caused the damage, rather than the two faults individually.
 Mazeaud’s criteria for joint liability:
o A fault committed by two or more persons
o A causal link between the damage and the faults
o A single damage resulting from the faults.
 These criteria are fulfilled here, so D and A are liable together.
 Rivard insists on the synergy between the faults, rather than their sequential nature.
Owen J (dissenting):
 The acts of A’s painters, which were the cause of the damages, didn’t constitute negligence.
 Also, something was required to ignite the fire
o Negligence of the janitors  owner of the building (D) and not contractors (A) are responsible for this.
o Dismiss liability by A, only D is liable to V.
Holding:
In event of a collective fault (in which two or more faults are necessary to create a single injury), defendants will be held jointly and
severally liable. Both D and A are responsible, and each must pay 50% of the damages.
Why isn’t whatever caused the spark a novus actus intervenus? Because duties of painter/janitor were to prevent this
(a foreseeable damage).
If someone deliberately threw a cigarette (pyromaniac) could be a NAI – duty is to prevent accidental explosions
but maybe not intentional ones.
DC - Caneric Properties v. Allstate, [1995]
Facts:
C is the owner of an immovable that was vacant since 1985 and was set for demolition. A neighbour (Allstate) complained to C of a
leak into his basement. That day, a team of City of Montreal workers came to fix the problem. The first team did not complete the job
and were replaced by a second team. Leader of second team said his instructions were to do nothing if there was no one on the scene, so
the repair was never completed. About a week later, the cold intensified and a pipe burst, flooding and damaging neighbour’s basement.
Issue:
Given the sequence of faults that occurred, what is the legal cause of the damage?
Legal Reasoning:
 Fault #1 = Caneric
o C committed a fault in allowing their abandoned building to sit through the winter without taking precautions. At the
very least, should have turned off the water.
 It is foreseeable that a pipe would burst.

Fault #2 = Montreal
o The second team (especially leader) committed a fault and invoked a directive that was never proven (was actually
contradicted).
o Could have taken a number of steps, but instead did nothing = gross negligence.
 Fault #3 = Caneric
o Having been made aware of the situation, they should have taken steps to ensure that the problem was resolved.
o A reasonable and diligent proprietor with reasonable concern for his neighbours would have verified the work was
done.
 In the case of multiple faults, establishing causation is very difficult.
 General rules on causation:
o Criteria of “causalité adequate” = direct and immediate cause
o Criteria of foreseeability
 All three faults can be shown to be the “cause” of the flood.
 However, fault #1 is probably too remote in time to be able to be called a “direct and immediate” cause of the flooding, and faults 2
and 3 are more direct intervening causes.
 Faults 2 and 3 equally contributed to the risk in a direct and immediate way. Split 50-50.
Holding:
Though the first fault is too remote, the two subsequent faults (one by C, one by Montreal) are the direct and immediate cause of the
flooding.
See also: Home Office v. Dorset Yacht
Carlogie Case (subsequent events relieving the wrongdoer of liability?)
 Defendent's ship carelessly hit plaintiff's ship
 Had to stay in the harbour for days, when it went out to sea there was a storm and ship was damaged.
 If the defendant hadn't hit the ship, they wouldn't have been out in the storm (but-for causation)
 But legally: no connection between two events. Storm just as likely could have happened days earlier.
 Reason you have a duty not to ram into other people's ships is NOT to protect them against damage from a
storm
◦ Difference from Minto: Was the purpose of the landlord's duty to protect tenants against sexual assault?
Yes! Because connected to security of the building
 Possibly explains what’s going on in lots of these cases
Another scenario (compare to Minto): Person leaves car unlocked, key in ignition. Person steals the car and
crashes it. Is the car owner responsible?
 Yes! Not a novus actus intervenus.
 Probably influenced by insurance.
 Foreseeable damage: people who steal cars tend to be in a hurry.
 What if the thief purposefully assaulted someone – pulled them into stolen car. Smith thinks this wouldn't be
covered by car owner's duty.
 Courts more willing to find motor vehicle owners liable in general because insurance companies have to
pay.
◦ Relates to duty of care view – what categories of things (relationships, causes) should incur liability in
tort law?
 Lots of multiple wrongdoer cases about car accidents.
 Time length – does this make a difference? Usually no unless there's a novus actus intervenus.
Predisposition of the Victim
Only difference between common and civil law for these cases: thin skull rule theoretically makes less sense in
common law because the test is “foreseeability” vs “direct and immediate consequence.”
CL - Smith v. Leech Brain, [1962]
Facts:
In 1950, S was operating crane at LB’s plant. Using only a makeshift piece of iron to shield himself from spitting molten metal.
Inadvertently got outside protection of shield and sustained bad burn on his lip. Burn did not heal, ulcerated and was diagnosed as
cancerous. Led to secondary growths and S eventually died of cancer in 1953. S had worked in gas industry from 1926-35 and so was
prone to cancer in that he might have had pre-malignant condition set off by the burn. However, possible he may have developed
cancer without the burn.
Issue:
Can LB be held liable for Smith’s cancer and resulting death?
Legal Reasoning (Lord Parker, CJ):
1) Negligence
 Clear and known danger of molten metal flying from tank  injury by burn to employees is clearly foreseeable by
reasonable employer.
 Clear that policy of using iron sheet as protection was wrong. Almost inevitable that such an accident would occur.
o Many other galvanizers had advanced to proper shelters.
2) Causation
 Were Smith’s cancer and resulting death caused in whole or in part by the burn?
 Three rival views as to what might have caused the cancer and death:
o 1. Cancer caused by burn without pre-malignant condition.
o 2. Cancer caused by malignant condition without burn.
o 3. Given pre-malignant condition, burn was the promoting agency which made the cancer develop.
 Court takes this final view
 Though S might have developed cancer eventually, no doubt that the burn did contribute to the cancer and death.
3) Damages
 Wagon Mound case did not have “thin skull rule” in mind  It has always been the law that a tortfeasor takes his victim as he
finds him.
 Clear distinction between question of whether one could reasonably anticipate a type of injury and whether one could reasonably
anticipate the extent of injury.
 Test is not whether employer could reasonably have foreseen that a burn would cause cancer and that he would die. The question
is whether employer could reasonably foresee the type of injury he suffered – the burn.
o Damages which he suffers as a result of that burn depend on characteristics and constitution of the victim.
Holding:
Yes. LB committed a fault which caused S’s injuries. Even if they could not predict the extent of the injury due to the characteristics
of S, the type of damage was foreseeable.
Case decided under Wagon Mound 1, not Polemis (Hughes = 1963) but Wagon Mound was about damage to
property. Thin skull doctrine is a really old common law idea. Judges assume that Wagon Mound 1 was not meant
to overturn it.
Suggestion that the thin skull rule is only a practical argument. Would be too difficult to work out how much of the
injury is due to the pre-existing condition and how much is due to the negligence.
CL - Marconato v. Franklin, [1974]
Facts:
F’s car struck M’s and M sustained minor injuries. However, she then developed symptoms with no physical explanation. M became
depressed, hostile and anxious, leaving her unable to care for her children and home. Psychiatric evidence suggests that she had
paranoid tendencies and that the impact of the accident had brought about her present condition.
Issue:
Can F be held liable for the injuries suffered by M as a consequence of his fault?
Legal Reasoning (Aikins J):
1) Causation
 Would not usually anticipate, using reasonable foresight, that a moderate injury would give rise to the consequences which
followed for M.
 Her peculiar susceptibility to suffer these greater consequences could be no more foreseen that a tortfeasor’s victim was
unusually thin-skulled and that a minor blow to the head could cause him serious injury.
 It is plain enough that defendant could foresee probability of physical injury  Wrongdoer takes his victim as he finds him.
2) Remoteness
 Cites Smith v. Leech Brain
o Thin skull rule
o Distinction between foreseeing extent and type of damage
Holding:
Though M had a pre-existing disposition, her present condition was brought on by the consequences of the injury caused by F. He is
therefore liable for damages.
Psychological harm and thin skull rule: foreseeable that you would get psychological problems from a car accident,
so fitting with Hughes, extent of the problems does not matter (victim had pre-existing condition).
Corr v. IBC Vehicles, [2006]
Facts:
C was seriously injured and disfigured by a workplace accident. Also caused him severe psychological trauma which developed into
depression. Six years after the accident, he killed himself. While C was receiving compensation from his employers for his physical
and psychological loss, his wife is now suing them under the Fatal Accident Act.
Issues:
Was the defendant’s suicide a reasonably foreseeable type of harm at the time the accident occurred or was it a novus actus
interveniens?
Reasoning: (Lord Justice Sedley: majority)
Either the suicide was a product of the depression or it was a discrete event
- The suicide was grounded in post-traumatic depression and nothing else
Foreseeability of psychological harm has already been accepted, and suicide as a result of that foreseeable harm will only be excluded
from damages if there is a logical/evidentiary/policy break that intervenes; here there is none.
It is argued that the suicide, an act of the victim, was a novus actus interveniens
- * But it is not where his suicide was a direct symptom of his depression
Once liability for the depression is established (which it was here) the question is only whether the suicide was a direct result of the
depression
- It clearly was
Reasoning: (Lord Justice Wilson: concurring)
“Suicide, while deliberate, may often be the product of a will so overborne or influenced by the worker’s circumstances that it should
not be regarded as an intentional act breaking the chain of causation.”
Reasoning: (Lord Justice Ward: dissenting)
Big question: what ist he damage for which the dfednat under consideration should be held responsible?
- From what kind of harm was it the defendant’s duty to guard the claimant?
A breach of duty is established and the causal link was not broken by the suicide
- The question remains, however, whether self-harm is a kind of harm which was not reasonably foreseeable. What is
reasonably foreseeable is the test.
Wagonmound 1:
- Essential factor in determining liability is whether the damage is of such a kind as the reasonable man should have foreseen
If a depression is foreseeable then it is equally foreseeable that the depressed person may take his life
- Difference between what was logically foreseeable and what was reasonably foreseeable
Death caused by suicide after a lapse of time from the original accident and after the intervention of the depression is a different kind
of damage from death immediately following the cause of the injury
- They have a different character
- Suicide doesn’t occur spontaneously as a symptom of depression
Is it fair, just, and reasonable to hold the defendant responsible for C.’s death?
Was suicide a reasonably foreseeable consequence at the time?
- Must conclude that it was not
- Was an awful/unfortunate accident that cannot be blamed on anyone
Holding:
The suicide was a direct and foreseeable type of injury resulting from the depression caused by the workplace injury and is
compensable. The appeal should be allowed.
This case could also be decided under the thin skull rule if it was found that the victim had a predisposition to suicide.
Majority decision reflects a modern view of attitudes towards suicide: not a free and voluntary choice (required for novus actus intervenus).
Athey v. Leonati, [1996]
Facts:
The appellant suffered back injuries from two major motor-vehicle accidents. Before the accidents, he had a pre-disposition towards
back problems. He was on his way to recovery from the accidents when he suffered a disc herniation as a result of a mild stretching
exercise; he then brought claims against the other parties of the accidents.
Issue:
Can loss be apportioned between tortious and non-tortious causes where both were necessary to create the injury?
Holding:
The finding of material contribution was sufficient to render the defendant fully liable for the damages flowing from the disc herniation.
Appeal allowed.
Reasoning: (Major J.)
Respondents:

Argue that apportionment is possible according to degree of causation where loss is caused by both tortious (accidents)
and non-tortious (pre-disposition) causes (Crumbling Skull).
The Thin Skull and “Crumbling Skull” Doctrines:
 Thin Skull: the tortfeasor is liable for the plaintiff’s injuries even where those injuries are especially severe owing to a preexisting condition.
 Crumbling Skull: the defendant is liable for injuries caused, but need not compensate plaintiff for any debilitating effects
of a pre-existing condition which the plaintiff would have experienced anyway.
 The defendant would be liable for the additional damage but not the pre-existing damage.
Major J. disagrees: there was no finding of a risk of the herniation occurring without the accidents.
Causation:
 General Test of Causation: the injury would not have occurred ‘but for’ the negligence of the defendant (accident)
 Courts have recognized that causation is established where defendant’s negligence ‘materially contributed’ to the
occurrence of the injury
o 1. If the disc herniation would likely have occurred without the injuries sustained during the accident, then NO
CAUSATION
o 2. If both pre-condition and accidents were necessary for the herniation, then YES CAUSATION
o 3. If either the pre-condition or accidents alone could have caused the herniation, then outcome is unclear and
Courts must determine on balance of probabilities whether the defendant’s negligence materially contributed to
the injury
*The trial judge was correct in finding that both the pre-condition AND the accidents were necessary for the disc herniation
 The trial judge erred in apportioning damages based on this
 Straightforward application of the ‘Thin Skull Rule’
 **As long as defendant is part of the cause of the injury, the defendant remains liable for all injuries caused or contributed
by their negligence.
o Law does not excuse defendant from liability merely because other causal factors for which he was not
responsible helped produce the harm.
Ratio:
Once it is proven that the defendant’s negligence was a cause of injury, there is no reduction of the award to reflect the existence of nontortious background causes (the Thin Skull Rule reinforces this conclusion).
Crumbling skull rule:
 Likely to suffer thing injury or some injury anyways.
o So in Smith v Leech Brain: he was going to get cancer in 6 months anyways. Employer is only liable
for loss of those 6 months.
 Immediate death cases: Guy falls off train tracks, on the way down was electrocuted. Train company and
hydro company are both liable, but the hydro company barely has to pay damages because if not for their
negligence he would have lived an additional 4 more seconds.

Viney, Les conditions de la responsabilité
The norm in civil law of Torts is to “take the victim as they come”
o Even if the victim has a predisposition that exacerbates the damages that the defendant’s actions
cause, that defendant is liable for totality of the injuries that accrue
o The victim’s condition is not a fault nor is it an action under the victim’s control



o The injury could not occur without the negligent intervention of the defendant, it should be 100%
defendant’s responsibility
o Apportionment of responsibility should not be a recourse
This has been the principle in almost all Criminal/Civil jurisprudence
Some exceptions:
o If the damage would have occurred due to the predisposition with or without the intervening actions
of the defendant
o Doctrine supports apportionment in some cases; courts are hostile to it
Social jurisprudence (ex. Workplace injuries):
o Have proven a bit more accepting of apportionment of liability
o Separation of harm from predisposition and harm resulting from the injury sustained
o But it goes against what the rest of the courts have almost unanimously decided
Mustapha:
 Man saw fly in water bottle freaked out triggered depression, phobia, anxiety. Complete aversion to water.
 Won at trial, lost at SCC. Not reasonably foreseeable.
 Is this consistant with thin skull rule? Maybe because no injury was reasonably foreseeable in the first place
(Hughes and Polemis test).
o First step, not the second (Not what is the extent of the injury but is an injury foreseeable in the first
place).
 Could also go under duty of care. Court doesn't like compensating psychiatric harm without physical injury.
Remember: mitigation is a general principle of the civil law. But it’s harder to apply to torts (easy for contracts.)
Religious Practice and Thin Skull:
 What do we do when action based on religious belief results in more harm occurring? Apportion damages?
NAI? Or thin skull type answer?
 Inherent to an individual (uniqueness) – this is test for thin skull rule
 Psychological predisposition to depression - you STILL need to take an act to commit suicide. A
manifestation of the plaintiff's autonomy? No full consensus among courts
 Is religion an immutable inherent characteristic? Looked at public law jurisprudence – Amselem religion
linked with personal freedom. S15 a constructibly immutable factor. So religion should not been seen as a
“choice”.
 Do civil liability tools prevent us from adding this to thin skulls?
 Civil liability sees victims are products of their choices
 How much public law can you put in civil liability? SCC says stuff about this – Charter values (Dolphin
Delivery)
 Balancing of rights
 No 1 size fits all test. Types of harm, when decision made matters.
Contributory Negligence


Main issue is contributory negligence v novus actus intervenus
Historically in common law no apportioning of negligence. Only two options (complete bar to recovery):
o Novus actus intervenus (Hydro v Gerard)
o Voluntary assumption of risk (Volenti doctrine. Only real application is sports. See Crocker v
Sundance)
o
Hydro v. Girard, [1987]
Facts:
G noticed an electric wire that was hanging off Hydro network. The pole supporting it was flaming or sparking. He called Hydro but
on his way back, noticed it had descended further and was now making a weird noise. Got out of his car attached it with a plastic bag
to prevent it from falling further and creating public danger. However, this made it worse and caused a minor explosion in which G
was badly injured.
Issue:
Can Hydro avoid liability on the grounds that G was contributorily negligent?
Legal Reasoning (L’Heureux-Dubé J):
Findings of Trial Court:
 Found G “principally responsible” (75%) for his injury:
o He acted very imprudently considering no one was in immediate danger.
o He advised Hydro – he should have waited for them to arrive.
o His good intentions are unfortunately irrelevant
 Found Hydro 25% responsible
o Failed in their obligation to maintain their system in good and safe order. As such, must accept some responsibility.
Court of Appeal:
 Hydro invokes 3 means to counter the trial court’s finding of liability:
o G’s action was a “novus actus interveniens” that effectively broke the causal link.
o The sole and direct cause of the accident was the extremely imprudent act of G.
o Trial judge erred in holding that Hydro committed a fault of omission.
 To hold Hydro liable, must establish that they committed a fault under art. 1053 CC, and that this fault caused the injury.
 In effect, it was the gross imprudence of G that was the only and effective cause of the damages he sustained.
o Neither the plaintiff nor the public was in immediate danger, so he had no justifiable reason to act as he did (good
intentions do not justify his actions).
o “But for” G’s imprudence, accident would not have occurred.
o This constitutes a veritable “novus actus interveniens.”
Holding:
Yes. G’s imprudence was the sole and effective cause of his injury. Even if Hydro could be found to have acted negligently, G’s act
constituted a “novus actus interveniens” that broken the chain of causation.
Contributory Negligence Act [page 249]
 Establishes that damages/fault should be apportioned so that the plaintiff has judgment only for so much as
is proportionate to the degree of fault imputable to the defendant
 Where it isn’t practicable to determine the respective degrees of fault, it will be apportioned equally (jointly
severally liable)
Crocker v. Sundance, [1988]
Facts:
Crocker participated in a tubing contest at Sundance ski resort. He was drinking heavily on the day of the contest – and bought much
of the alcohol at the Sundance bar. Several employees noted his condition and even asked him if he was in any shape to compete, but
took no further steps to dissuade him. He got into a tubing accident and was rendered a quadriplegic.
Issue:
Is there anything to distinguish the present case from an ordinary extreme sports accident (which do not generally attract liability)?
 Did Sundance owe a duty of care to Crocker?
o If so, what was the standard and was it discharged?
Legal Reasoning (SCC, Wilson J):
1) Duty of Care:
 CML generally distinguishes between negligent conduct (misfeasance) and failure to take positive steps to protect others from
harm (nonfeasance).
Grows out of philosophy of individualism
o Involves more serious restraint on individual liberty to require a person to act than to place limits on his freedom to act.
o Distinguish where individual has created the risk and where he has merely failed to benefit the victim by not interfering.
 Canada  Courts have been increasingly willing to expand number and kind of special relationships to which a positive duty
to act attaches.
 Jordan House = Court held that tavern owed a duty of care to its intoxicated patron.
o Invitor-invitee relationship
o Awareness of condition of patron = foreseeability
o Served him alcohol in breach of instructions and statutory injunction against serving an intoxicated patron.
o Once made aware of his condition and thus the foreseeability that harm might ensue, incurred a responsibility to see to it
that he got home safely – or at least that he was not turned out alone on the street.
 General rule = One is under a duty not to place another person in a position where it is foreseeable that the person could suffer
injury.
 Restatement of issue  Whether Sundance owed duty to take all reasonable measures to prevent intoxicated plaintiff from
participating in a dangerous activity which was under its full control and promoted by it for commercial gain.
o Court finds duty of care
o Sundance must accept responsibility as promoter of a dangerous sport for taking all reasonable steps to prevent a clearly
intoxicated patron from participating.
2) Standard of Care
 Standard of care is dependent on context  What steps would a reasonable organization have taken to prevent Crocker from
competing?
 Numerous steps were open to Sundance to dissuade Crocker from participating (e.g. disqualifying him, preventing him from
competing, clearly explaining risk). None of these preventative measures impose a serious burden on Sundance – yet they did
nothing.
 The fact that Crocker was irresponsible and intoxicated is the very reason why Sundance was legally obliged to take
reasonable steps to prevent him from competing.
Court finds Crocker partially responsible and Sundance partially responsible (apportionment of responsibility) 25% Crocker
Holding:
The relationship between Sundance and Crocker gives rise to a duty of care. They had an obligation to take reasonable steps from
preventing a clearly intoxicated person from participating in a dangerous activity under their supervision and for their financial gain.
Sundance could have taken numerous steps to dissuade him, yet they did nothing. Failed to meet standard of care required by law.

Waldick v. Malcolm, [1991]
Facts:
W seriously injured after falling on icy parking area of M’s farmhouse. M claimed it was local (rural) custom – no one salted
driveways. W was aware laneway was slippery, condition clearly visible.
Issue:
Did M fail to meet statutory duty of care imposed by Occupier’s Liability Act? Was W contributorily negligent under the Act?
JH:
Both trial court and AC of Ontario held M liable for W’s injuries.
Legal Reasoning: (Iacobucci J.)
Courts rarely take judicial notice of custom – custom not decisive against negligence. If plaintiff acted unreasonably, it matters not
that his neighbours also acted unreasonably.
Custom was never proven
 M found to have breached s.3(1) of Act notwithstanding local custom
Act meant to discourage such generalized negligence and impose standard duty of care for occupiers. It mandates positive action on
part of occupiers to make premises reasonably safe. Where no such effort has been made, exceptions to duty of care will be few and
narrow.
Test of reasonableness and foreseeability  Conditions of the icy laneway were not unexpected, and M did nothing to eliminate the
risk even though they knew it would be used by visitors . In doing nothing, failed to meet duty of care required by s.3(1) of the Act.
 M argues that standards should be lower for rural environment:
 But point of scheme was to limit arbitrary rules applicable to different kinds of premises in favour of a generalized duty
of care.
M’s duty was not to make the whole farmground safe, only the area in which they knew people would be (close to entrance / parking
area)
Earlier courts found no contributory negligence under s.4(1) of the Act – this court agrees.
 Does “risks willingly assumed” entail proceeding in the face of knowledge of the risk, or is it codification of volenti non
fit injuria doctrine (‘to a willing person injury is not done)?
Essentially = merely knowing of the risk v. consenting to legal risk
Mere knowledge of conditions is not what is meant by s.4(1) – the mere fact that a visitor observes a risk does not relieve
occupier of statutory duty of care.
Volenti = s.4(1) was meant to embody this doctrine - does not bar the claim because there was no agreement to waive legal rights.
Very rare for plaintiff to genuinely consent to accept all risks (narrow exception).
Holding:
M breached standard duty of care in Act. W was not contributorily negligent. M is therefore liable for injuries W sustained on their
property. Appeal dismissed. Custom does not excuse negligence.
Ratio:
Common practice and custom do not exonerate liability where those practices are inherently unreasonable.


Gaudet v. Lagacé, [1998]
Facts:
Gaudet (11), Lagacé (12) and Gauthier (13) took gas and a lighter from Lagacé’s home (parents busy with guests). They went to the
forest to play with fire – not the first time. Gaudet dipped a branch in gas and lit it. When he set it down, flames spread towards gas
tank. Gauthier tried to stop it but accidentally kicked it – fire hit tank and exploded. Lagacé was apart from the scene. Gaudet
severely burned.
Judicial History:
Trial judge rejected Gaudet’s claim because he was unable to determine who started the fire.
Legal Reasoning:
Trial judge concluded that if anything, Gaudet himself started the fire. Therefore didn’t look at liability of other boys’ parents (and
anyway said they had educated their sons well).

Doesn’t qualify as “perilous activity” – looking for novus actus intervenius, the causal link between the first fault and
the damage.
 The boys knew that it was dangerous – their parents informed them of this. They thus committed a fault which was
foreseeable and was the direct cause of the damage.
Contributory negligence?
 Victim knew of danger and risk
 Victim nevertheless accepted the risk in participating
But does contributory negligence eliminate recourse to liability? CCQ 1477 says no – despite his imprudence, he has recourse against
the author of his harm.
Court finds all three boys share contributory negligence equally.
Parental Responsibility?
 Three components:
o Presumption lessened by advanced age of children – proof sufficient to lift presumption.
o Surveillance – don’t expect parents to watch adolescents every minute, or to lock up such innocent things as gas
or a barbecue lighter.
o Proper education – established that they knew it was dangerous.
No parental liability in this case.
Holding:
No parental liability, but negligence on the part of all three boys. As a result, plaintiff can recover damages from other two boys.
Appeal rejected against parents, granted against boys.
Final Deep Thoughts on Tort
The two texts represent the two main ways people think about tort law (and private law generally). Hard to
reconcile.
P. Cane, Atiyah’s Accidents, Compensation & The Law 3-29, 425-58
 Deterrence – tort deters accidents. Accidents by definition are a bad thing. Also called prevention.
 Economic efficiency – shifts cost of the accident to person in best economic position to prevent accident
(cheaper for you to fix brakes on car than for everyone else in the world to avoid your terrible driving).
Efficient prevention! We don’t want to prevent all accidents, just inefficient accidents. OR: least cost
insurer. If it was really no one’s fault, person who was in best position to insure against this loss.
o Moving money doesn’t make people better off though. $10,000 is probably same to both of them.
One is happier and one is unhappier.
o But if you know that in a circumstance you’re going to have to pay money, you will take care, fix
your car and stuff.
 Deter overprotective measures/incent to act in a productive manner.
 Economics: worrying about the past is inefficient. Make the future better.
 Tort law can give incentives. This makes the future better!
Deterrence and economics (learned hand test):
 You should take care when the price of not taking care (tort) is higher than the preventative cost.
 Ways of preventing accidents that don’t put the burden on either party. Ie: dangerous road, tort will put
the blame on person driving carelessly. Why don’t we just fix the road? Force cars to have seatbelts. Courts
will reduce the damages you get from an accident if you weren’t wearing a seatbelt. This should be
deterrence. But when they made it mandatory, lots of people wore them.
o Skeptical economist: if you’re wearing a seatbelt you’ll drive faster because know accidents won’t
be as serious.
 Criminalization (in regulatory law): makes people act carefully. Seatbelts, transport, drugs, etc.
 Europe likes regulation, US doesn’t (torts will fix it!).
 Assess tort law only in instrumental terms. Solutions not just within tort law. Compare to other things that
can achieve the same ends.
o Nothing SPECIAL about tort law.
o It’s part of public law?
Other ways beyond tort law that you can achieve these goals:
 Social welfare model – disability benefit schemes, medicare system, worker’s compensation schemes.
 Insurance: including no-fault schemes (Quebec’s model).
 Problem: you get injured/sick by natural causes you can’t sue anyone no money. Or if the person isn’t at
fault. Atiyah’s main beef with the tort system.
 Like 7% of people in England who get in accidents/have disease get compensated through the tort system.
 Also the tort system is expensive! It’s a damages lottery! If you’re born with a birth defect, you pay for it. If
you get a defect as a result of a doctor’s negligence, you get a lot of money.
 Solution: mandatory 3rd party insurance. Quebec’s model of auto insurance but with EVERYTHING! Works
pretty well!
o Deterrence maybe still an issue.
o But costs and compensation are pretty good.
 Or New Zealand’s model: universal compensation schemes. Any injury you get from a public money pot.
Maybe not as much as you would in tort, but more universal. Also kind of a forced insurance – you pay for
it through taxes.
o Deterrence: if you have more accidents you have to pay more. But not as much deterrence as the
torts system.
o Atiyah distinguishes between general deterrence and prevention?
 Are people rational enough that they know about these incentives? Model assumes people
are rational, respond to incentives. Same justification in the criminal law.
 If you agree with the model, you can say that even if some people are rational, it’s working.
Doing something, better than nothing.
 You don’t have to know the specifics (read tort law cases) to know the “reputation” same as
knowing which grocery store has a reputation for high prices.
Argument against this:


Maybe a mixed system would work better? Normal accidents under insurance, weird ones under tort?
Tort system doesn’t need people to go through trials to work. Threat of tort makes people act in a certain
way – incentive to make a safer environment.
Atiyah doesn’t take into account morality, justice.
E Weinrib, ‘Corrective Justice in a Nutshell’
 Distributive justice: things distributed equally ie tax, education.
 Corrective justice: justice between two individuals (interpersonal justice/morality). If one person wrongs
another, it’s an injustice that has to be corrected.
 Individual rights and duties approach. No civil/common law difference.
 Put people back in the position they were originally in.
 It’s the unique thing that tort law does.
 Is justice too expensive or do other things matter more? Weinrib can still rationalize getting rid of tort law.
 But if we keep it then that’s the way we understand it! If there’s no justice element, you don’t have tort
law. You have something else.
 Do all wrongs give rise to “justice” needing to be done? What if it was just an accident? This kind of
thinking is good for criminal law, not so much for tort.
 Disagreement with Weinrib:
o Too idealistic. What is justice?
o Weinrib’s response: the purpose of tort law is to be tort law. It’s like love. Other than that it has no
point. Can’t explain why justice is good in $$. Economists and Marxists don’t like this idea of justice.