 NEGLIGENCE ANALYSIS
1. IS A DUTY OF CARE OWED?
Does the duty fall into one of the recognized categories OR analogous to a
recognized category?
 Rescue  If YOU caused the negligence (Horsley)
 Commercial Host  K relationship, economic incentive, insurance
(Childs)
 Doctors  to patient, NOT un-conceived child. Duty arises after birth &
can include pre-birth injury (Paxton – acne medication, pregnant) (Liebig)
o No DOC of mothers to unborn children (Paxton / Dobson)
 Security Co/inspectors  to people they’re guarding (Pinkerton - mine)
 Police  to conduct non-negligent investigation (Hill)
 Gov’t  justifiable as Bona Fide core plan of Gov objective (Imp Tobacco)
1. Was the harm that occurred the reasonably foreseeable consequence of
the D’s act?
 Need foreseeability AND proximity, BOP on P (Childs – social host liability)
a) Proximity consider expectation, representation & reliance between parties
 JUST& FAIR to impose duty?
b) Foreseeable, is it physical and Non-feasance or misfeasance? (Childs)
Non: 1) active invitation/creation of risk? 2) supervision/control? 3) serve
a public function? OR if D’s materially implicated in creation or control of risk
(last ditch effort)
Mis: Proceed to SOC
2. Are there policy considerations, which ought to negate the imposition of
a DOC on a class of persons despite adequate proximity?
 Floodgate concern (once recognized category, always recognized), BOP on D
 Existing remedies, unlimited liability, institutional roles (ie. Gov) (Just)
IF
YES
THEN
DOC
TEST
Anns
Test
(below)
NO
No
liability
N/A
YES
DOC
NO
No
liability
YES
No
liability
DOC
2. WAS THE STANDARD OF CARE MET?
What would reasonable and prudent person have done
in the same circumstances? (Vaughan – hay fire)
Exceptions:
- Children  reasonable & prudent child of similar age,
intelligence & experience – mixed objective/subjective test
(Heisler – jumping down stairs) (Nespolon – dropping off
drunk kid)
Unless involved in adult activity then A std (Pope – play golf)
- Physical disability  adjust standard accordingly
- Mentally ill  D show: 1) illness removed capacity to
understand/appreciate that a DOC is owed, 2) unable to
discharge DOC through no meaningful control (Fiala – jogger
chokes driver)
- No volition, No capacity to understand/appreciate DOC
- Special skill/knowledge  SOC = standard of a reasonably
prudent & competent Dr/Chiro/Builder… (terNeuzen)
CASES
Bolton – nature & degree of
risk (cricket pitch)
Paris – diff std based on
knowledge (1 eyed worker &
glasses)
Rentway – remediation
seriousness > cost (car
headlights)
Bittner, Good Samaritan Act,
Videan – $$ if you put
someone in danger
Waldick – salting driveway
Warren – diving lane marker
Brown – cream but dr advice
terNeuzen – HIV from
procedure
INFLUENCES
Foreseeability
Probability harm
Gravity of
harm/loss
Burden of
precaution
Social utility
Common &
Reasonable
Practice
Medical
guidelines
NO
Anns
Test:
(Cooper –
mortgage
broker
investiga
tion)
Childs
Were there statutory standards in place?
 Statutory standards useful but not determinative for SOC – (Sask Wheat Pool – contaminated grain)
 Compliance with statutory std doesn’t equate meeting the CL SOC (Ryan – railways in road std)
 Cannot rely on statute if object is for something else (Gorris – sheep fall off boat, statute for sheep health)
3. WAS THERE CAUSATION?
Damage wouldn’t have occurred BUT FOR the negligent actions of D
- If 2 Ds simultaneously negligent, onus shifts to Ds to prove who actually
did it – reverse onus (Cook v Lewis – 2 hunters, not sure who hit P)
- Damages can be apportioned via Negligence Act but P can always claim
from 1 tortfeasor (usually the 1st one) (Bradley – 2 accidents, 2nd @ 80%)
o Joint & Several liability, Contributory negligence
- Can be more than 1 party if damage wouldn’t have occurred BUT FOR
D’s negligent action
Material Contribution test: All liability imposed on tortious cause
 Only if BUT FOR doesn’t work, approved not applied (Clements)
Used in circumstances of GLOBAL BUT FOR  where the test fails b/c
multiple people involved in negligent action (Athey – 2 accidents, 25%
liable)
BOP on P - balance of
probabilities
Can infer causation from
presumptive evidence 
BOP shift to D to rebut
Negligence MUST be
“necessary to have
brought about the
injury”
D liable for 100% of
damages even if other
non-negligent causes
exist
Snell –
blindness
3
potential
reasons
Clements
– driving
too fast &
nail
Athey
4. IS IT NOT TOO REMOTE? / IS THERE PROXIMATE CAUSE?
D is responsible for all the reasonably foreseeable consequences of negligent action (Cameron – rogue cow)
- Doesn’t matter how damage arose, so long as harm that ensued was foreseeable (Hughes – kid lamp hole explode)
- Must be proximate/foreseeable to be liable – if unforeseeable then unpreventable (Wagon Mound 1 –fire from
welders not foreseeable) (Assiniboine – snowmobile explode)
 Thin skull = liability  compensate for full extent of damage, incl pre-existing conditions (Bishop – club door)
 Crumbling Skull = damages  compensate to the extent D’s action worsened the position. D need not put P
in better position than original (Athey – back problems)
Intervening acts  break the causal link & aren’t reasonably foreseeable (Bradford – fire, yells gas, panic)
 Not intervening if something happens that you had a duty to avoid (Stansbie – painter leaves house unlocked)
- Manufacturer liable to consumer for practice they KNOW/OUGHT know takes place (Smith – 3rd prong removed)
Defences: Contributory negligence, voluntary assumption of risk, Illegality of P’s actions
SPECIAL DEFENDANTS
LIABILITY POSSIBLE FOR FAILURE TO PROVIDE INFORMATION
Manufacturer P needs to show that they would not have agreed to procedure/used product
Hollis –
had they been adequately informed (subjective test)
implants
Duty to ultimate consumer for dangers KNOWN/OUGHT TO HAVE KNOWN
rupture
 Includes those found at later dates, serves to correct knowledge imbalance
Smith –
 Duty varies w/ level of danger inherent in normal use
see
Duty to ultimate consumer  often through LEARNED INTERMEDIARY
remoteness
 Discharge duty when middle man’s knowledge approximates manufacturer
 When consumer not likely to receive warning from manufacturer directly
Medical
BUT FOR Negligence of duty to warn, P would NOT have consented to surgery (Martin)
Professional
 Would a reasonable patient in those circumstances have consented to the procedure
 Would ELECTIVE surgery have been postponed
- Duty to EFFECTIVELY disclose all material risks wrt proposed treatment before consent
 POLICY – value of bodily integrity; understanding of informed consent
 Incl small risk potential but catastrophic result (Reibl – stroke before pension)
 Must be understood by layman (Martin – bleeding = stroke)
 Impacted by patient concerns (Videto – scar warning)
 Higher duty when procedure is elective (Hankins / White)
Government
- True policy decisions exempt, but once policy choice made you must be non-negligent in
implementation (Just / Hill / Imperial Tobacco / Brown– see DOC )
- Policy includes considerations of factors: economic, social, political that aren’t irrational/bad
SPECIAL HARMS
PSYCHIATRIC HARM
No recovery for ordinary grief and sorrow that person of ordinary fortitude would survive
Culligan
3 proximities: (Devji – daughter car accident, identify body)
– fly in
1. P must have close ties of love and affection with the victim. Such ties may be presumed in
water
some cases (e.g. spouses, parent and child) but must otherwise be established by evidence
2. P must have been present at the accident or its immediate aftermath
3. Psychiatric injury must have been caused by direct perception of the accident or its immediate
aftermath and not upon hearing about it from someone else
PURE ECONOMIC LOSS C/OUT PERSONAL INJURY/PROPERTY DAMAGE
Other categories: Independent liability of statutory public authorities, relational economic loss (Winnipeg Condo)
1. Should D have reasonably foreseen that the P would rely on the representation? Need a
Misrepresentation
special relationship (Hedley – bank reliance letter)
2. Reasonable, in circumstances, for P to have relied on representation? Need a ‘special
relationship’ (Hercules - E&Y audit)
a. D had direct/indirect financial interest in the transaction
b. D was a professional OR had special skill/judgment/knowledge
c. Representation made in the course of the D’s business
d. Representation was given deliberately (vs. social occasion)
e. Representation given in response to specific request
3. Policy reasons to negate a prima facie DOC?
Indeterminate liability - not a problem if: (Hercules - E&Y audit)
 Foreseeable reliance involves a limited class of people
 Information was used for purpose for which it was provided
New duty: detriment and reliance don’t have to come from same place (Haskett - credit agency)
 POLICY: Deter poor management of important 3rd party services (ie. Credit reporting)
Provision of a People’s intentions should be carried out – general reliance on lawyers (Wilhelm – bad lawyer)
Service
 POLICY: no indeterminacy, if someone screws up, should be held responsible
Dangerous
Reasonably foreseeable to D that bad workmanship would cause damage to subsequent
Product
purchaser therefore builder should be liable whether or not injury caused (Winnipeg Condo)