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Table of ContentsNEGLIGENCE ...............................................................................................................................................................3

Mustapha v Culligan (2006) ...............................................................................................................................3

Burden of Proof..........................................................................................................................................4

1. STANDARD OF CARE: Breach of Duty .....................................................................................................................4

Unreasonable Risk......................................................................................................................................5

Bolton v Stone (1951) .........................................................................................................................................5

The Reasonable Person ..............................................................................................................................5

Vaughan v. Menlove (1837) ...............................................................................................................................5

Blyth v. Birmingham Waterworks (1856) ...........................................................................................................6

Custom ......................................................................................................................................................6

Waldick v. Malcolm ............................................................................................................................................6

Statutory Standards ...................................................................................................................................6

R v Saskatchewan Wheat Pool (1983) ................................................................................................................7

Gorris v. Scott (1874) ..........................................................................................................................................8

Ryan v Victoria (City) (1999) ...............................................................................................................................8

Exceptions to the Reasonable Person Standard.........................................................................................................9

Children .....................................................................................................................................................9

Heisler v Moke (1972).........................................................................................................................................9

Mental Disability and Physical Disability .....................................................................................................9

Fiala v Cechmanek (2001).................................................................................................................................10

Superior Skill and Knowledge (Physicians and Lawyers) .............................................................................10

Challand v Bell (1959) .......................................................................................................................................10

2. DAMAGE ...............................................................................................................................................................11

3. CAUSATION...........................................................................................................................................................11

But for Test ..............................................................................................................................................12

Kauffman v TTC (1959) .....................................................................................................................................12

Athey v Leonati (1996)......................................................................................................................................12

Thin Skull v Crumbling Skull ......................................................................................................................13

Inferring Causation...................................................................................................................................13

Snell v Farrell (1990) .........................................................................................................................................14

Material Increase in Risk...........................................................................................................................14

Clements v Clements (2012) .............................................................................................................................15

Cook v Lewis (1951) ..........................................................................................................................................15

4. DUTY OF CARE ......................................................................................................................................................16

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Donoghue v Stevenson (1932) ..........................................................................................................................16

Anns/Merton Test ....................................................................................................................................17

Anns/Cooper Test ....................................................................................................................................17

Cooper v Hobart (2001) ....................................................................................................................................18

Hill v Hamilton-Wentworth Police Services Board............................................................................................19

R v Imperial Tobacco (2011) .............................................................................................................................20

Policy Consideration:................................................................................................................................21

Dobson v Dobson (1999)...................................................................................................................................21

Unforeseeable Plaintiff.............................................................................................................................21

Hay (Bourhill) v Young (1943)...........................................................................................................................22

Rescue and Rescuers ................................................................................................................................................22

Horsely v Maclaren (1972)................................................................................................................................23

COMMERCIAL & SOCIAL HOST LIABILITY..................................................................................................................23

Jordan House ltd v. Menow (1974)...................................................................................................................24

Relationships Control or Supervision.........................................................................................................24

Childs v Desormeaux (2006) .............................................................................................................................25

LIABILITY FOR INACTION – MISFEASANCE V NONFEASANCE ...................................................................................26

Oke v Weide Transport (1963)..........................................................................................................................27

Zelenko v Gimbel Bros ......................................................................................................................................28

O’Rourke v Schacht (1972)................................................................................................................................28

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NEGLIGENCE

Negligence is conduct which falls below the standard accepted/required in the community. It is primarilya cause of action in tort liability

In order to establish a cause of negligence in tort there are 4 elements: (from Mustapha v Culligan)

1. The defendant owed a duty of care there must be reasonable foreseeability (Mustapha)2. The defendant’s behaviour breached the standard of care means you’ve failed to uphold the

standard of care3. The Plaintiff sustained damages4. The damage was caused by the defendant’s breach causation

ALSO:

5. Damage must not be too remote a result of the defendant’s conduct Proximity6. Conduct of the P should not bar or limit recovery Quantifying Damage

gotta examine the defences of contributory negligence, voluntary assumption of risk andillegality

Mustapha v Culligan (2006)

FactsM saw 1.5 dead flies in unopened water bottle from supplier he had been using for hisfamily for years. Sued C for psychiatric injury, claiming he developed major depressivedisorder, phobia and anxiety

Issue Whether M’s reaction and subsequent “injury” was reasonably foreseeable – NO, tooremote

Rule In order to make a successful claim of recover for psychiatric harm you must prove allthe necessary elements of any negligence claim, however, the damage will be seen astoo remote if the breach would not have resulted in the psychiatric harm of a reasonableperson.If the defendant knew that the plaintiff had a particular vulnerability to psychiatric harmbefore the breach, then psychiatric harm is reasonably foreseeable.

Functions of Tort: (not what it should be doing, what it is)

1. Deterrence2. Appeasement/ vengeance -> correlates to punishment and also educator/moral code3. Compensation4. Justice5. Education -> through the form of civil theatre and through a moral code6. Punishment -> has inherent value to our psyches -> reflects on deterrence

• Rational actor theory of econ **

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AnalysisWhether C owed M a duty of care? – YesWhether C’s behavior breach the standard of care? – yesDid the plaintiff sustain damages? – yes (medical evidence from trial judge)Was M’s damage caused by C’s breach? – In order to the show the damage wasn’ttoo remote, M had to show it was foreseeable that a person of ordinary fortitudewould suffer the same injuries from seeing the flies. NO, he did not show this

Judgement: The loss suffered by M was too remote to be reasonably foreseen andthat consequently, he can’t recover damaged from C

Burden of Proof• The onus is on the P to establish each element of negligence• In some circumstances previously governed by the doctrine of res ipsa loquitur (it speaks for itself, it

obviously makes sense. This doctrine rarely exists in SCC, instead there’s an inference of negligence, and theonus shifts to the D), the court may draw an “inference” of negligence from the circumstances, which the Dmay be able to rebut

• If the D wishes to have the P absorb some of the blame, the onus is on the D to show the Ps actions fellbelow the standard of care

1. STANDARD OF CARE: Breach of Duty

Basic Standard of care: An objective standard That of the reasonably prudent person in the circumstances Ask: “what ought the D reasonably have done” (that would have avoided the accident)

The “Hand Formulation” says that the Court will consider:o The likelihood of breach resulting in injury; The gravity of the injury; The cost of

precautions. The social utility of the activity (i.e. attempted rescue/emergency) There may be no obligation to guard against highly unlikely events (e.g. rare cold snap in Blyth). Custom or practice may influence the standard of care, but widespread adoption of a negligent

practice is still negligence (Waldyck v. Malcolm) (so by what standard do we establish whether thewidespread practice is ‘reasonable’, if not by its degree of acceptance?

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Unreasonable Risk

Bolton v Stone (1951)Lady gets hit in the head by a cricket ball

FactsP hit by ball from cricket club 100 yards away while walking down highway - 6occasions of balls over 17 ft fence in 30 years

Issue Whether a reasonable person would have foreseen the risk

Rule When a risk is sufficiently small, a reasonable man can disregard it. ForeseeabilityRisk of injury must be foreseeable and somewhat likely

Analysis Its not only foreseeable the ball could over, but that it had happened 6 times in 30

years Foreseeability doesn’t always mean foreseeability in torts The court didn’t want to require precaution that were so erroneous for such a small

risk that it would inhibit the sport and have economic impact/consequences

Where the risk is substantially small and the reasonable person can disregard it, then itis not a breach of the standard of care - while the harm was reasonably foreseeable,there was a remote chance of occurrence and the consequences were minimal - there isa tendency to base duty on the likelihood of damage rather than foreseeability alone -fantastic possibility - just because it is possible does not mean you have to guard againstit

The Reasonable Person• Normative standard of conduct – the reasonably careful person, a person of ordinary prudence• Its really about what the courts think a reasonable person is and would do its really about the judges view

of reasonable behavior and action. The Courts are identifying an aspiration conduct higher than the averagestandard

• There’s an economic analysis -> its possible to looks at most torts as lowest cost avoider analysis (thisperson should be liable who should bear the burden)

• In modern jurisprudence economic arguments just aren’t as strong or viably held -> instead it imposes astandard of care that is more prudent/cautious than even the ordinary or more economically rationalperson would be reasonable to follow/expect/behave by

Vaughan v. Menlove (1837)Facts: V owned 2 cottages which were burned down as a cause of a fire caused through the spontaneouscombustion of a hayrick in the neighbouring defendants land. The hay was in such a state that it gaveprobability to catching fire and he had been previously advised to take the hayrick down, but didn’t

Rule: Establishes the reasonable person standard: We ought to adhere to the rule which requires in allcases a regard to caution such as a man of ordinary prudent would observe

Analysis: Ignorance shouldn’t be considered as a defense. Be objective instead of subjective views ofreasonableness

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Blyth v. Birmingham Waterworks (1856)Facts: The defendant had installed a fireplug into the hydrant near Mr Blyth's house. That winter, duringa severe frost, the plug failed causing a flood and damage to Mr Blyth's house. Blyth sued theWaterworks for negligence.

Rule: Negligence is determined by a reasonable person standard. A person is not negligent if hisconduct and precautions conform to the standard obeyed by a prudent or reasonable person. Areasonable man would consider the usual range of temperature in recent years and act accordingly.

Analysis: D liable unintentionally for failing to act on the standards of a reasonable man, who would’veacted with reference to the average circumstances of the temp. in ordinary year -> thus not negligent bctheir precautions proved insufficient against the effects of the extreme severity of the frost that year

General principles: theres some limit to the notion of foreseeability of harm• Even if the frost is an odd event, it’s not completely unforeseeable• The question then is not IF it could happen, but HOW OFTEN it could happen• But becuz of econ efficiency you can’t force a business to take precaution against every foreseeable

risk

CustomCustom is not determinative of the standard of care

Person that claims custom has the onus of proof to show that the custom does actually exist It is not impossible to foresee that the custom of a person or an area would effect the standard of care By imposing the standard of uniformity the Court going to bring the people up to everyone else

(enforcing a higher standard) rather than reduce the law to what their standards are - therefore it is avery strict test and used in rare circumstances

Courts are reluctant to acknowledge local customs of smaller nature (Waldick v. Malcolm)

Waldick v. MalcolmCase about custom – icy driveway

Facts: plaintiff fell on the icy parking lot of D’s rented property. There was custom in the area not to salt or sandthe icy parking areas

Issue: How much custom can be applicable to the standard of care

Rule: no amount of community compliance will render negligent conduct “reasonable…in all circumstances”. Noamount of repetition of a careless practice will make it less careless.

Analysis: There can’t be diff SoC based on geography -> doesn’t differ from town to towno Occupiers Liability Act imposes a strict liability. Imposes a high standard on land owner to guard

against harms even over and above the CL standard

Statutory Standards Statutory negligence: an intentional or negligent failure to comply with a statutory duty (Sask wheat pool)

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Breach of statute is not a tort UNLESS the statute says breach of statute is a tort (civil recovery)

Effect of Statutes on Standard of Care Since Saskatchewan Wheat Pool breach of statutory standards is not a tort in itself and doesn’t give

rise to a duty of care Statutes establish the standard of care (ie. Saskatchewan Wheat Pool and most driving cases) but

they also link the duty - they give some indication of whom they are trying to protect and in what In order to use statute to establish standard of care:

i. The accident must have been the type the statute was aimed at avoiding (Gorris v. Scott);ii. The victim must have been in the class of persons whom the statute was designed to protect.

The more discretion left by statute, the more room to argue that standard should be higher thanfulfilling statutory requirements (Ryan v. Victoria City);

Conversely, the more detailed the statutory requirements, the more likely it will be held to beexhaustive of the Standard of Care.

Cannot recover for breach of statute with another purpose that results in harm (Gorris v. Scott)

R v Saskatchewan Wheat Pool (1983)ALWAYS refer to this case when statutory duty

FactsCanadian Wheat board is seeking to recover damages from the Sask Wheat Pool fordelivery of infested grain out of a terminal elevator. The wheat was loaded on to theship, under the supervision of the Board and they didn’t detect the rusty beetle larvaeinfestation through one of their tests until the ship had sailed. Board claims statutorybreach against Pool

Issue Whether there was a breach of statute - NO

Rule Breach of statute can be used as evidence of negligence but does not constitutenegligence in itself Breach of statutory duty is not a tort.

Analysis To be relevant, the stat breach must have caused the damage to which the plaintiff

complains if so, then the violation of the statute is evidence of negligence

Statutory negligence: an intentional or negligent failure to comply with a statutoryduty

o There’s no evidence that the Pool was negligent or failed to take care The pool successfully demonstrated that the loss was not the result of any

negligence on its part (they did necessary test and met all the industry standards andregulations)

court said there isn’t really evidence, because every expected precaution was taken.And if the courts did impose liability then they’d have to label it as a strict liabilitytort

Exception: some statutes do establish torts! (things can be actionable without proofof damage)

Judgement They are not liable because they took all reasonable steps to ensure that it was notinfested (it could not have been known at the time) and therefore fulfilled their duty

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Gorris v. Scott (1874)Sheep fell overboard

Facts: Gorris sued to recover damages based on Scott’s negligence in failing to tie down the animals’feet in compliance with the statute. D claimed that the statute prescribed its own penalty for violations,and that the harm suffered by P was not the sort of harm the statute was designed to prevent.

Rule: One is not liable for a violation of a statute if the damage complained of is separate from thepurpose of the statute - there was no direct or indirect purpose to protect against said damage - the Actdoes not provide any provisions that deal with the dangers of loss by the perils of the sea

Analysis: if the D had done what the statute told them to do (ties down animals) they would haveavoided the harm, but not for the situation as described by the statute (purpose of infectious diseases)o the statute could be seen to impose a foreseeable standard of care on youo it’s not just the standard which the statute establishes, but the purpose of the statute in relation to the

harm caused

Ryan v Victoria (City) (1999)

Facts: R was injured when he was thrown from his motorcycle after the front tire became trapped in a“flangeway” gap running alongside the railroad tracks - suing the railway company and the city

Issue: whether the fact that the railways complied with statutory safety standards and regulationssatisfied the requirement of objective reasonableness – NO

Rule: the standard of care of the statute does not override the common law standard of care (if thestatutory standard of care is higher, then you would be forced to follow it - based on the fact that youshould be held to a higher standard) - if it is a general statute, the more the common law standard of carewill be applied b/c there is more discretion; the more specific the statute, the less there is a need for thecommon law standard of care to apply

Analysis: It was plainly foreseeable that carelessness by the Railways regarding those tracks couldcause injury to people using the street. A prima facie duty of care arose. If so, whether the Railways arenevertheless liable for failing to exercise their discretion under those regulations to minimize the hazardcreated by the wide flangeways

o What should the D have done? in addition to building this railways, the company and the city had a duty to warn people of

the hazard aheado Would it have avoided the harm? (proves/shows causation)

The purpose of signage could be to shift liability rather than avoiding the harm all together You could objectively say that a reasonable person would take the necessary precaution if a

sign was placed

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Exceptions to the Reasonable Person Standard

Children Children don’t have the same mental capacity or knowledge as adults to foresee risk and act

accordingly children will be held to a reduced standard based on age (fundamental consideration) An objective standard of care requires children to display the same degree of care as a reasonable

child of the same ageo the standard of care applicable to a child was that of a child of similar age, intelligence, and

experience as the defendant intelligence and experience are subjective If an older child is undertaking an activity normally done by adults, its likely then that the

adult standard of care will be applied Parents aren’t vicariously liable for the torts of their children -> but they have a reasonable duty to

take care of and supervise them

Adult Activity Doctrine (Exception to the Children rule): Where the child is doing somethingusually reserved for adults, then adult standard of care may apply

Heisler v Moke (1972)

Facts: Child hurt his leg while jumping and was warned not to do it again - behind the wheel of a tractorhe was engaging the leg in a different way but the clutch failed and someone was injured in the result ofthat

Rule: Subjective test to determine whether the child, with regard to his age, intelligence, experience,general knowledge, and alertness, is capable to be found negligent - if he can be found to be negligent,you can apply the test of the objective reasonable child of that age

Mental Disability and Physical Disability

Mental Disability: Doesn’t seem right to punish and hold liable those who are incapable of acting within reasonable

care Simple lack of intelligence is not taken into account ignorance or stupidity aren’t a defence The issue of a D’s mental disability operates on 2 levels in negligence cases

i. It may render the D’s actions involuntaryii. It may prevent a volitional D from complying with the normative standard of care

Physical Disability:

People with serious disabilities have standards of care compatible with their condition There’s still an obligation on their part to adjust their conduct so that to avoidable risk is

created and to refrain from activities beyond their capacity to perform safely The adjustment (lowering) of the SoC applies only to major physical disabilities -> being old,

near sighted, poorly coordinated doesn’t count There’s also obligations to take precautions to prevent foreseeable injuries to the disabled

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TEST for recognized disabilities or illnesses:1) The defendant lacked capacity to appreciate the duty owed OR2) The defendant had no meaningful control over his actions

Fiala v Cechmanek (2001)Facts: Macdonald was on a run and suffered from a severe manic episode for the first time. He thoughthe was God. He jumped on the defendant’s car, banged on the windows, and choked her. He hit the gaspedal and hit the plaintiffs car

Rule: If a person is suddenly, without warning, afflicted with mental illness to be relieved of tortliability defendant must show either of the following on a Balance of probabilities:

1) As a result of his or her own mental illness, the defendant had no capacity to understand orappreciate the duty of care owed at the relevant time or;

2) As a result of mental illness, the defendant was unable to discharge his duty of care as he had nomeaningful control over his actions at the time the relevant conduct fell below the objective SOC

Analysis: If its someone who knows of their mental illness, then there’s foreseeability and they have a duty of

care to take necessary precautions to mitigate their risk of causing harm to themselves or others The rule is that we’re aren’t just trying to modify the behaviour of the defendant, but trying to

modify the carer of the mentally ill

Superior Skill and Knowledge (Physicians and Lawyers) A higher SoC is applied to those ppl who represent themselves as having a special skill/knowledge

that allows them to perform tasks that are normally beyond the capacity of the ordinary person Elevated SoC to professionals Ex: lifeguards, doctors etc

Enhanced Standard of Care for Physicians

Standards of care is established with reference to the “average” standard for a professional in thegroup to which she belongs.

No “discount” for beginners (Challand v. Bell). No standard of perfection: doctors may make mistakes.

Standard of care for Lawyer

Protected if following the usual practice and procedure of the profession, unless the practice isinconsistent with prudent precautions against known risk (Brenner v Gregory)

Challand v Bell (1959)Medical negligence case

Facts: C suffered open fracture wound and was taken to B, a general practitioner - B cleaned the woundand reset the fracture - made periodic checks and noted some swelling - checked the next day andswelling was worse so made cuts in the cast - after still not improving B became aware of circulatorychanges in the plaintiffs hand and suggested he go to a specialist - arm was amputated b/c of gangrene -a form commonly found in soil near farm animals and commonly found on the clothes of a farmer

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Rule: apply the reasonable prudent and competent member of the particular profession or vocationstandard

Analysis: Judge rules saying an error in judgement is diff from an act of unskillfulness or carelessnessor due to lack of knowledge. A decision by the doctor had to be made w/o delay based on limited knownand unknown factors. The D’s treatment was correct and was similar to what other practitionerswould’ve done

2. DAMAGE

• Damages are the proof of negligent conduct to to give rise to cause of action• No liability can arise in negligence unless the plaintiff suffers damage as a result of the

defendants wrongful act some loss is necessary• Is any physical injury, but also may be situations of nonphysical damage that is recoverable• The main reason for tort law is to recover damages• For a while the courts did not recognize economic loss as a damage

3. CAUSATION

Liability for negligent conduct means there must be some link bw the wrongful act and the loss beingcomplained of.

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But for TestWhether the injury would have occurred “BUT FOR” the wrong of the defendant.

Kauffman v TTC (1959)Facts: Plaintiff injured on subway escalator after children ran into a man who fell backwards on her.Suing TCC for lack of/insufficient handrailing

Issue: Would presence of better hand rail have prevented the accident? Would presence of an attendanthave avoided the accident? – NO to both

Rule: If there negligence, but for the negligence would the accident have occurred? (Burden/Onus ofproof on the plaintiff though this makes it difficult and has been often critiqued for it)

Analysis: There was no evidence the man or the kids had tried to grasp the handrail. AND no evidencethat she wouldn’t have fallen if she was holding the handrail. No evidence to say the railway was acontributing cause of the P’s injuries. Negligence action failing bc the P was unable to establish on thebalance of probabilities that her injuries wouldn’t have occurred BUT FOR the D’s negligence

Athey v Leonati (1996)

Facts: A suffered a disc herniation after two car accidents pre-existing disposition. this is a case ofcumulative causation. Both accidents were a necessary preconditions for the accident to occur

Issue: whether the loss should be apportioned bw tortious and non-tortious causes where both werenecessary to create the injury

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Rule: “But for” test does not require D’s negligence to be the sole causal factor for injury; need only toestablish that D’s conduct “materially contributed” to the injury - when pre-existing conditions wouldnot have caused the injury but for the defendant's actions, then it is the "thin skull" rule that applies andthe defendant will be totally liable for the plaintiff's losses (non-tortious)

Analysis: It’s a material contribution to the harm even if you didn’t have both of the auto accidentD’s in court, should can easily get remedy from either of them. Bc its proven that the Ps injury is theresult fo these two things. The law doesn’t excuse the D from liability just bc other causal factors for which they’re responsible

also helped produce the harm P has burden to prove that the injuries sustained in the accidents caused/contributed to the disc

herniation. Once burden of proof is met, causation is accepted as a certainty The diff bw the P’s “original position” and “injured position” is the P’s loss. In this case, the pre-

existing disposition is part of the “original position”.

Inferring CausationProof vs. Inferences

• The “but for” question need not be answered to a degree of scientific certainty (or perhaps evenprobability).

• The Court may use a “robust inference of causation”: i.e. Snell v. Farrell.o Robust inference is the first thing that courts use to get past problems of the ordinary but for test

• Is this just an invitation to hindsight bias? Maybe. Humans have a built-in tendency to read causalconnections into events that happen successively in proximity.

Thin Skull v Crumbling SkullThink Skull Rule: Pre-existing condition of a plaintiff can’t be raised as the defense as to say thatthese conditions made the P vulnerable to the Ds actions In MUSTAPHA it want applied bc it was he Ds duty to foresee such a remote/extreme

condition/reaction) Basically you take the victim as you find them unless it’s a really unforeseeable/unlikely condition makes tortfeasor liable for the Ps injuries even if the injuries are unexpectedly sever owing to a pre-

existing condition

Crumbling skull: pre-existing condition was inherent in the P’s “original position”. The D need notput the P in a position better than their original position, only liable for injuries caused, not the effectsof pre-existing condition Shouldn’t be liable for harm that would have resulted in any event. Notion is that even if you

accidently whack someone on the head and they got to the hospital & 10 k damages, turns out theyhave a condition where they would’ve had to go to the hospital and incur 10k, would you still beliable for it? NO

In these diff worlds (accident happen and not), is there an actual loss to the D tht would stillhappen? ~ [Athey v Leonati]

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Snell v Farrell (1990)

Facts: D left blind in one eye after cataract surgery. Doctor found negligent for continuing operationeven after noticing bleeding in Ps eye. Burden was on D to disprove cause

Issue: Can causation be established? - YES, robust inference/reverse onus

Rule: The court was able to deviate from the “but for” test b/c causation in malpractice cases areinherently difficult - the defendants, who are the doctors and physicians, are in a better position to arguecausation - rational to require evidence to rebut the inference but there was no evidence to rebut in thiscase (reverse onus = robustInference)

Analysis: Proof of causation in medical malpractice cases are hard for the P to prove, the D (doctor) ismore knowledgeable of what caused the injury Res ipsa loquitur: a piece of circumstantial evidence which doesn’t shift the burden of proof. possiblistic liability if you create a risk in someone, makes you liable if that risk manifests itself

Material Increase in Risk

Material Contribution to Harm Beyond de Minimus

In cases of multiple cumulative causes (tortious or non-tortious), the defendant will be liable if hecontributed to the harm in a significant way – i.e. beyond de minimis (above a trivial). (Reibl v. Hughes)o when harm has multiple cumulative causes, you just have to show the level of harm was above de minimus

(trivial)

Material Contribution to Risko when theres more than one D or torto courts are reluctant to resort to this operative

• In cases of alternative tortious causes, the defendants may be liable if :

(a) the loss was probably caused by one or the other of the defendants, each of whom created orcontributed to a “risk”,(b) that the type of harm that manifest was within the ambit of the risk (Fairchild), and

(c) where it is impossible (scientifically or factually) to prove which of the defendants was theactual cause. This is particularly so if it could be said that the negligent act itself deprived theplaintiff of the opportunity to attribute harm (Cook v. Lewis).

When is the Material Contribution to Risk Approach Available? (Clements v Clements) Where its “impossible” for the P to prove causation on the “but for” test and where its clear that the D

breaches its duty of care (acted negligently) in a way that exposed the P to an unreasonable risk of injury

Where Only One Tortfeasor

However, where the injury may have been caused by either

(a) the defendant’s wrong or

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(b) some other, non-tortious cause, the defendant will have to show on a “but for” basis that thedefendant’s wrong was probably the cause. (as in Clements v. Clements)

Clements decision was that they wouldn’t apply MCR unless there 1+ tortfeasor

What is “Causation in Law”?• Under the “material contribution to risk” analysis, a wrong may be found to have caused something

in law that it did not cause in fact.• Conversely, in some cases something that did in fact cause or contribute to the harm in fact will be

found not to have caused the injury in law.

Clements v Clements (2012)Exception to But For test: Material Contribution test – rare and limited

Facts: Husbands motorcycle got punctured and crashes causing severe traumatic brain injury to wifewho was passenger. Wife sued husband for negligence.

Issue: Whether the “but for” test applied or the “material contribution” test – Material Contribution

Rule: Circumstances did not give rise to a situation where the test could be applied (it is a very limitedand rare exception) - test has never been dealt with by the SCC (and even then, can only be applied incases of multi-tortfeasers)

Analysis:When is the Material Contribution to Risk Approach Available?: Where its “impossible” for the P toprove causation on the “but for” test and where it’s clear that the D breaches its duty of care (actednegligently) in a way that exposed the P to an unreasonable risk of injurySCC judge said TJ erred in applying a material contribution to the risk approach and ordered a new trial.There were dissenting judges

Cook v Lewis (1951)

Facts: C was part of a hunting group and L part of another - shortly after seeing each others party in thesame hunting area, Lewis was injured by a gun shot from C’s party (2 shots happened simultaneouslyfrom different people)

Rule: When there are multiple tort feasers, and negligence and causation has been established, bothparties do not escape liability because both of them were negligent - rather, the burden of proof must beshifted to the appellants to prove which one of them did it - if neither has proof then they are bothequally liable (the onus is on each appellant to prove that the other is the guilty party)

Analysis: If the P has proved that he was injured by either D but is unable to establish which one of thetwo caused the injury, his action must fail against both unless there are special circumstances whichrender the rule inapplicable

In this case, Judge says that bc P can’t determine which shot at him, both Ds should be heldliable for negligently shooting in his direction

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4. DUTY OF CARE

Courts use “neighbour principle” as the main criterion for the establishment of a new duty of care(Donoghue v Stevenson) If someone could reasonably foresee causing harm to ones neighbour, they owed a duty to used

reasonable care to avoid that harm Prima facie duty of care doctrine

The Anns/Cooper two stage analysis is only in cases where the creation of a new duty of care is beingconsidered by the court

But usually proximity can be inferred if risk of injury is reasonably foreseeable, prima facie duty ofcare arises

“General Duty”

Some activities appear to give rise to “general duties” which will be applied whenever someone is hurt as aresult: e.g. driving a motor vehicle.

These duties might be viewed as “transferable” where harm is of a type that is foreseeable, even if theparticular victim is not.

What role does insurance play? drives the idea that liability can more easily be imposed?

Donoghue v Stevenson (1932)

FactsMrs Donoghue drinking a bottle of ginger beer in a café. A dead snail was in the bottle. She fellill, and she sued the ginger beer manufacturer, Mr Stevenson. The House of Lords held thatthe manufacturer owed a duty of care to her, which was breached, because it was reasonablyforeseeable that failure to ensure the product's safety would lead to harm of consumers.

Issue Whether manufacturers owe a duty of care to consumers - YES

Rule Neighbour Principle: Duty of negligence is owed if its reasonably foreseeable that theactions of the alleged wrong doer could cause harm to the victim

“You must take reasonable care to avoid acts or omissions which you can reasonablyforesee would be likely to injure your neighbour.”

Your neighbours are “persons who are so closely and directly affected by my act that Iought reasonably to have them in contemplation as being so affected…”

Analysis Neighbours are: person who are so closely and directly affected by your actions that you

ought to reasonably have them in mind as when performing your act Developed the field of product liability duty was owed by negligent manufacturers of all

types of products to all foreseeable plaintiffs Duty of care owed in negligence actions is an open - ended and general concept of a

relationship of proximity which is capable of extension to new situations Gave negligence a formula, universal principle, which would apply to future situations

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Anns/Merton Test

• Anns provides a method for determining if there’s a standard of care• Anns/Cooper test is only used when there’s a novel duty of care being established (usually govt liability

Two stage test:1) “as between the alleged wrongdoer and the person who has suffered damage there is a sufficient

relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former,carelessness on his part may be likely to cause damage to the latter, in which case a prima facie duty ofcare arises.”

2) “Whether there are any considerations which ought to negative, or to reduce or limit the scope of theduty or the class of person to whom it is owed or to which a breach of it must give rise.”

Foreseeability determined by proximity Proximity established through:

i. Legal Relationship of parties in this case it’s a commercial relationship Ex of relationships: contractual, fiduciary etc

ii. Geographical proximity• Proximity analysis involves examining factors of the relationship: expectations, representations,

reliance, and property

• Courts look to the statutes to determine the duty bc it shows to whom the duty is owed.o Whether this specific duty is to indivs (investors) or to the world/public at large

Anns Kamloops Test (From Kamloops v Neilson)

Elaborated on the second stage of Anns as follows: “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 might give rise?”

Anns/Cooper Test

Cooper said of Donoghue: “foreseeability alone was not enough; there must also be a close and directrelationship of proximity or neighbourhood.” “Reasonable foreseeability of the harm must besupplemented by proximity”

Proximity in fact: a relationship where a reasonable person would foresee the harm caused to theplaintiff.

Proximity in law: where, in the words of Hercules Management (cited in Cooper): “the circumstances ofthe relationship between the plaintiff and defendant are of such a nature that the defendant may besaid to be under an obligation to be mindful…”

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Cooper v Hobart (2001)

FactsThe Plaintiff represented a group of investors who brought a class action seekingdamages for losses suffered after advancing money to a mortgage broker. The moneywas allegedly used for unauthorized purposes. The defendant (Registrar of MortgageBrokers) suspended the Broker’s licence in October 1997 for serious violations of theBC Mortgage brokers Act. The plaintiff claimed that the Registrar was aware of theviolations in August 1996 and should have acted earlier to suspend the license andnotify investors that the broker was under investigation. According to the plaintiff, if theRegistrar has acted more promptly, the losses suffered by the class would have beenavoidable to dismissed

Issue Is there a duty owed by the oversight body? And to whom is that duty owed mainquestion asked in public authority liability cases

Rule The rule set out in Anns v Merton, which continues to the be the appropriate test toapply where the question of whether a duty of care should be imposed in a newsituation, requires a 2 stage assessment

Mere foreseeability isn’t enough to establish prima facie duty of care. P mustalso show proximity – that the D was in a close and direct relationships tothem such that it is just to impose a duty of care in the circumstances

TEST:Step 1: 1(a): Was the harm foreseeable in fact, i.e. would a reasonable person have been able to

foresee it? This is usually a given; when this stage is analysed it is usually in order to limit liability (i.e.

Palsgraf, Mustafa)

1(b): Did the defendant have an obligation to take care, in the particular circumstances or therelationship between him/herself and the plaintiff? This subsumes a further inquiry: Are therepolicy reasons to support either extending or restricting the liability in the context of thatrelationship? The question of “legal proximity” will usually be established through precedent. It is only in

the case of novel contexts where the matter need be considered in light of policy.

Step 2: 2: If ‘yes’ to the first two questions, are there policy considerations outside the relationship of

the parties that should operate to restrict or negative the liability? How would recognizing aduty of care affect other legal relationships, the legal system, or society more generally?

Examples of policy considerations:o The spectre of indeterminate liability;o Other means of recourse;o Whether interferes with legislative authority (policy vs. operational distinction).

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Analysis Cnd courts have not thus far recognized the duty of care that the plaintiffs allege in

this case. The case doesn’t fall within, and isn’t analogous to, a category of cases inwhich a duty of care has previously been recognized

This is not a situations in which a new duty of care should recognized. The Act must be source of the duty. The Mortgage Brokers Act doesn’t impose on

the Registrar a duty of care to investors. The Registrar’s duty is to the public as awhole and any duty to indiv investors would conflict with this

o In Cooper the duty was owed to the public, not the indivs bc if there was aduty to the indivs it would mean they have to act too much

Outcome on the question of proximity and duty was that there wasn’t sufficientproximity established by the statute

o The court was sure that but for the statute there would be no duty diff fromanybody else

Even if the Registrar could have foreseen the losses, there was insufficientproximity between the registrar and the investors to found a prima facie dutyof care

The application of stage 2 isn’t necessary in this case

Hill v Hamilton-Wentworth Police Services BoardPolice Liability Case

FactsHill, aboriginal male, was suspected by officers of commiting 10 robberies. When hewas in custody though, 2 similar robberies still occurred. Despite that, he was stillcharged with 10 counts of robbery, BUT 9 were withdrawn before the trial. FoundGuilty at trial, appealed and new trial acquitted him. But bc he had been imprisoned for20 month he brought a civil action against the police claiming negligent investigation

Issue Whether law recognizes a duty of care on investigating police officers to a suspect inthe course of investigation

Rule

Analysis• Police aren’t immune from liability under law of negligence• Police owe a DoC in negligence to suspects being investigated• Their conduct during the course of an investigation should be measured against the

standard of how a reasonable officer in like circumstances would’ve acted

Test for DoC: Anns Test1. Does the relationship bw P& D disclose sufficient foreseeability and proximity to

establish prima facie DoC

The PO and suspect had a close and direct relationship bc the PO had identified himand began to investigate him he was specifically singled out

o Also as according to Anns test, there were high interests at stake whichsupport a finding of a proximate relationship giving rise to a duty of care

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an investigating PO and suspect are close proximate enough such that a prima facieDoC should be recognized

2. If so, are there any residual policy consideration which ought to negate/limit thatDoC?

The police put some forth like, but the judge dismissed them as convincing reasons

What is the Appropriate Standard of Care for the Tort of Negligent Investigation Reasonable officer in like circumstances Statutory standards imposed by Police Services Act Police work demands that society impose an enforce high standards on police

conduct

R v Imperial Tobacco (2011)

FactsImperial alleges that Canada negligently misrepped the health attributes of low-tarcigarettes to consumers, and its therefore liable for contribution and indemnity on thebasis of the Negligence Act if the class members are successful in this suit. Say Canada isliable for any losses the tobacco companies incur to the plaintiffs in either case

Issue Whether Canada had a duty of care to the Tobacco Companies

Rule

AnalysisStage 1 of Anns test: Tobacco comps. Argue that the facts pleaded establish a proximate relationship bw

Canada and the consumers and bw Canada and the T cos. To support a DoC withrespect to govt statements about light & mild cigs. Canada should have reasonablyforeseen that consumers would rely on its statements abt cigs

“Special Relationship” will be established when:1. D ought reasonably to foresee that the P will rely on their rep2. Reliance by the P would reasonable in the circumstances of the case Where such a relationship is established, the D may be liable for losses suffered by the

P as a result of negligent misstatement

Judge says: Canada DID NOT owe a prima facie DoC to consumers, but did owe aprima facie DoC to tobacco companies (T cos)

All that’s necessary is that Canada could have foreseen that its negligent misrep wouldresult in a harm of some sort to the T cos

GeneralNotes

1. Canada didn’t owe a duty to the consumers bc there was no statute which met theCooper requirement of establishing a duty. If anything there was a public duty toregulate harmful products but it wasn’t enough

2. Govt did owe a duty to the manufacturers tho bc it established a personal interactionwith them and thus brings them within the proximity and makes the foreseeability allthe more relevant

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• In the end, there was no liability bc these were policy decisions and in public authorityliability cases, policy decisions are immune

Policy Consideration:

In novel cases, “Policy” can come into play either with respect to the first branch of Anns/Cooper/Kamloopstest (focusing on relationship between parties) or second branch (overarching policy considerations)

o Anns cooper/Kamloops told us policy has a wider scope

Dobson v Dobson (1999)Unforeseeable Plaintiff – Unborn Children

Issue: Whether to immunise a mother from liability for prenatal injuries caused to her unborn child byher negligently driving a car while she was pregnant

Rule: A prego woman cant owe a DoC to her fetus any more than she can owe a DoC to herself. The DoC isowed to the born alive child

Dobson v. Dobson: Mothers immune from general rule that duty of care is owed to born-alive childrenfor negligence causing harm in utero. Stated policy considerations focused on impact of such suits upon mothers’ autonomy. Possible unstated concerns of ‘floodgates’ litigation as insured mothers admit to negligence in order

to obtain compensation for children.

policy can be used not simply to gauge liability it novel situations but in situations where therearguably is a prima facie legal duty to argue that there is a general duty to those beyond proximity.

There 2 kinds of policy consideration:1. Stated and apparent from the case decision question of autonomy Judge Major said that autonomy wouldn’t be affected if you only extended liability in cases

where there wasn’t this general duty from Dobson, Mustapha and Culligan an underlying concern from the courts is that factually

it’s just too difficult to monitor this type of liability bc how much can u rly know how much aperson is honestly affected by seeing a fly in a bottle etc

this fear that even if in evidence it shows that everyone is acting in good faith and honesty, it justtoo difficult to show total reliability in that

Unforeseeable PlaintiffA. Remoteness

Remoteness can be part of the analysis of causation (i.e. no ‘causation in law’) or in duty(plaintiff not ‘reasonably foreseeable’): Mustapha v. Culligan.

reasonable foreseeability allows us to see remoteness in the context of duty Farrugia v. Great Western Ry.: Where harm is of a type that could have been suffered by anyone

in vicinity, the unforeseeability of particular plaintiff’s circumstances (or even presence) may notmatter.

o the case where a sack of flour falls off a truck and hits the person running after the truck

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Hay (Bourhill) v. Young: no duty to foresee a plaintiff who was affected by sight of blood afteraccident. Type of harm might be foreseeable, but circle is narrowly drawn (see also Palsgraf).

Hay (Bourhill) v Young (1943)

FactsP was getting off the bus when she witnessed a car crash and after seeing the blood andvictims body was suffered shock and trauma. As a result of the shock, P claimed to havesustained a “wrenched back” and a month later her child was stillborn. P sued themotorcyclist in the accident

Issue Whether the D was negligent vis a vis the appellant? Are people who suffer shock after an accident reasonably foreseeable? - NO

Rule The qualifying language from D&S was that we owe a duty to those we reasonablyforesee No duty to unforeseeable plaintiff

If no hazard is apparent to the eyes of ordinary vigilance, an act innocents andharmless, at least outward seeming, does not become a tort bc it happened to bewrong,

Analysis It can be hard to determine not only if an act was negligent but also whether the act

was negligent vis a vis the P crucial point In the case of nervous shock P can’t build on a wrong to someone else as a cause of action Her interest, her own bodily security was diff than the interest of the victims car D couldn’t have reasonably foreseen (not even the reasonable hypothetical observer)

the likelihood that anyone like the appellant/P could be affected the way that she was

There’s no such thing in civil action as negligence in the abstract

If no hazard is apparent to the eyes of ordinary vigilance, an act innocents andharmless, at least outward seeming, does not become a tort bc it happened to bewrong, through apparently not one involving the risk of bodily insecurity, withreference to someone else

GeneralNotes

It’s like Mustapha, a special case, where the harm isn’t foreseeable like a psychologicalinjury

Rescue and Rescuers

Duty owed to Rescuers

Liability to rescuer arises where the Def A negligently placed B or themselves in a position ofdanger and Plaintiff C is injured/killed in the course of a rescue attempt

Courts encourage altruistic conduct and protects rescuers from virtually all losses arising from therescue

Action brought by a rescuer rarely fails Rescuers are held to be foreseeable A person who, as a consequence of their own negligence, places themselves in positions of peril owe

a DoC to their rescuers

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Futility of a rescue is not a defense Reasonable perception of the rescuer is important Contributory negligence is hard to establish bc rescue is usually spontaneous and without much

deliberation, a risk to one’s own safety is unavoidable

The general rule was that the negligent party was liable to the person foreseeability injured and alsoliable to the rescuer

Ordinary rules of foreseeability don’t apply hereo Bc tort law is perceiving this idea that any limitation on the web of duties with respect to

rescuers, is only going to prevent and punish ppl from being rescuers and good Samaritans.We want a system of law which encourages ppl to help one another bc they want to

o But only want to encourage it to a point rescuer should be reasonably prudento But the rescuer should be reckless, fool hardly, wanton, overly riskyo You are deemed to foresee that whenever you see a victim there may also be a rescuer

Theres a general rule that there no obligation/duty to rescueo Bc this duty could restrict self - autonomy and liberty

Theres a duty to rescue if/relationships requiring rescue : (p. 391)o you are somehow responsible for creating the risk in the first placeo professional/statutory obligation firefighter, lifeguard, bar owner (in childs v desmereaux)o paternal relationship & relationships of control/supervisiono economic benefit

once you attempt a rescue, you have established a duty to make sure they don’t end up in a worseposition by your aborted attempt of rescue

Horsely v Maclaren (1972)

Facts: Matthew is a passenger on Maclaren’s boat, he slips and falls into cold water. Maclaren tries to rescuehim and fails. Mrs. Jones tries and fails too. Horsley tries too and ends up dying as well. No one was negligentreally and no one was really drunk though they had consumed alcohol there was no original negligent act

The negligence being alleged against M isn’t that he didn’t turn the boat around. Bc even if he had,maybe Horsley would still have jumped in cant establish but for

We have duty, breach of standard of care, damage, causation The original act of negligence was the response to the emergency

COMMERCIAL & SOCIAL HOST LIABILITY

Commercial liability/ neighbour principle: Foreseeability extends to anyone to whom you could bepotentially liable Donoghue v Stevenson

Note on Statutory Duty: No automatic tort for breach of statute: but it is not irrelevant and can beevidence of a standard of care. In this case it is not to serve drunk people more alcohol (LiquorControl Act). The statute effects both proximity and standard of care. If you were arguing for JordanHouse, you would work the statute: the state did not create duties of care to protect drunk peoplefrom getting hit, but it is to protect the public generally. If they were really trying to establish firm

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duties through the legislation then they would have been more strict in defining intoxication andsuch.

Jordan House ltd v. Menow (1974)Commercial Host Liability

FactsMenow was a frequent patron of the hotel bar an was well-known to the hotelowner/operator. He had a tendency to drink recklessly which the bar employees knewabt. before he had even been banned from the bar bc of this. Thereafter, the employeeswere instructed not to serve him unless he was accompanied by a responsible person.On the day of the incident, M came with his employer, who then left earlier than him.He eventually got drunk and kicked out of the hotel. Hotel employees probably knew hewould have to walk home along the hwy. There he was hit by a car

Issue Whether the operator of a hotel may be charged with a duty of care to a patron of thehotel beverage room who becomes intoxicated there.

Rule

Analysis There’s a statutory DoC on bar owners and employees according to the Liquor

Licence Acto which makes it reasonable to conclude that the injuring person owes a duty

to the injured not to expose him to an unreasonable risk/harm Sask wheat pool Rule just having a statutory standard itself doesn’t establish

negligence But statutory standard used as evidence to establish a standard of care

There was a probable risk of personal injury to Menow to turn him out onto abusy hwy at night while drunk duh

Its not unreasonable then to expect the hotel to have taken care to see that M wasn’texposed to injury bc of being drunk

Judgement Taking in all the evidence (that the hotel knew about how much M usually drank, theyknew he was drunk, the hwy is obvs dangerous, they have past preventative practices ofcalling cabs etc.) the hotel came under a DUTY to M to see that he got home safely

o SO there was a BREACH of this dutyo The HARM which ensued was REASONABLY FORESEEABLE

bar was liable bc he was a long-time patron of the bar (the bar had knowledge ofthat person and his personal history, drinking habits

Relationships Control or Supervision Relationships of control/supervisions which require dominant parties to take affirmative step to either

prevent injury or assist other in vulnerable positions, and to protect other from being injured by them Ex of relationships of control/supervision : parent/child’s, teacher/ pupil, employer /employee, carrier

/passenger, prisons/ inmates, landlords/ tenantso In all of these the freedom of actions of the subservient party is limited by the dominant party

Regarding situations of supervision and controlo Ex: hospitals and patient, prisoners and guards

The idea is that once youre able to restrict someones options you have a duty to take care of them

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o Ex: once you attempt a rescue you take on the duty of following through with the rescue tocomplete it

The point of the Good Samaritan Act is to encourage people to assist and provide aid to others inemergencies while protecting them from liability

Childs v Desormeaux (2006)

FactsAfter leaving a private New Years Eve party, D was impaired and drove his vehicle intooncoming traffic and collided head on with another vehicle carrying the appellant -Child’s spine was severed and as a result she is now paralyzed from the waist down -the party, hosted by Courrier and Zimmerman in their home, was a BYOB event, andthe only alcohol served by them was three quarters a bottle of champagne in smallglasses at midnight - although D was known to be a heavy drinker, they made no pointto monitor his drinking over the night

Issue

Rule Social Host Liability: A social host at a party where alcohol is served is not under a dutyof care to members at the public who may be injured by a guest's actions, unless thehost’s conduct implicates him or her in the creation or exacerbation of the risk

“A person who accepts an invitation to attend a private party does not park hisautonomy at the door. The guest remains responsible for his or her conduct. Short ofactive implication in the creation or enhancement of the risk, a host is entitled to respectthe autonomy of a guest…absent the special considerations that may apply in thecommercial context, when such a choice is made by an adult, there is no reason whyothers should be made to bear its costs.”

Analysis• Courts want to protect social hosts from 3rdpary liability bc of preserving ppls self-

autonomy• “perverse incentive” theres no detrminent to a bar, bc they get an economic

benefit to serve someone more alcohol. But this doesn’t apply to social hosts bc theyget no econ benefit from serving alcohol

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• The preservation of non-econ autonomy• Comes down to insurance principles how the risk and losses will be spread

Anns Test:

Necessary proximity has not been established, and even if foreseeability can beestablished, no duty would arise because the wrong alleged is a failure to act(nonfeasance) in circumstances where there is no positive duty to act - Courrieraccompanied Desormeaux to his car but there is no evidence which suggests that heshowed signs of intoxication during this short encounter - the injury was not reasonablyforeseeable on the facts established in this case

LIABILITY FOR INACTION – MISFEASANCE VNONFEASANCE

Klar Identifies five categories in which a positive duty to act or intervene might be imposed:

1) Relationships of Economic Benefit Jordan House, Childs2) Relationships of Control of Supervision3) Creation of Dangerous Situations Oke v Weide4) Reliance Relationships and Undertakings Zelenko5) Statutory Duties O’Rourke (police)

Relationships of Economic Benefit

• This is what determines the diff bw commercial host liability and social host liability• Social host liability introduces us to the fact that there might have to be some positive act to

trigger liability• The social host cases seem to suggest that some unusual positive act is necessary to trigger

liability• The test of duty/remoteness is that is it foreseeable that the harm could happen, is there any

remote chance at all that it could occuro This is a lower threshold than balance of probabilitieso Because the probability of its occurring can be less than 50% for it in law to be

foreseeable

Relationship of Control or Supervision

• The “hallmark” of these cases is that the Defendant must have entered into the supervisory orcontrolling position freely and willingly.

Creation of Dangerous Situations

Is this really nonfeasance or does the failure, for instance, to clean up the site of an accident insteadtransform a non-negligent act into a negligent one (e.g. it is negligent to hit a sign without making itsafe, or to put it another way, ‘going halfway’ to clean up the detritus of your accident is a wrongful actin itself)?

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Is it really nonfeasance that’s being alleged or is it a negligent doing of something Oke: you could say that Oke did not do all that was required to do as a driver, so hitting the sign

could be viewed as a sign that he didn’t do everything he was required by duty as a driver to do

Reliance Relationships and Undertakings Seen in the liability of public authorities more commonly than liability of indivs The key preliminary question must be causation. What would have happened if the reliance not

been established and then betrayed?

Statutory Duties (Police Officer)

Treat police cases as sui generis (something of their own kinds)o Courts could be reluctant to impose a certain duty based on just the text of empowerment

in a statuteo POs almost have strict liability that when they don’t take positive action when the court

has estblished to be, then they are liable Is it a negligent doing of something (misfeasance) or an absence of doing something/a duty

(nonfeasance)

Duty to Warn (Not doing it is Nonfeasance)

• Many of the nonfeasance cases deal with failure to provide adequate warning to the plaintiff.• In each case, ask yourself whether it is the misfeasance of doing something without warning (i.e.

Ryan v. Victoria (City)) or is truly a case of not doing something at all, or stopping a practice thathad been relied on in the past.

Oke v Weide Transport (1963)Creation of Dangerous Situations

Facts: The defendant truck driver, without negligence, knocked down a traffic sign in the middle of a gravel stripdividing a highway. He stopped and removed the debris, but left the cut off metal post in the ground. Hethought of calling the police to report the accident, but decided not to. Oke, while driving the next day, droveinto the metal post which came through the floor of his car and killed him. D and this employer were held liablefor the death on ground of negligence in failing to notify the police

Analysis: The court held there was no foreseeability. The dissent said the created the hazard though D was under legal duty to take active steps to control the situation D participated in the creation of the hazard. Even though he recognized his obligation he didn’t go far

enough in his duty (all he did was remove debris)

o Perhaps he wouldn’t have cleared the debris, it would have been more visible than just asingle pipe and then the accident wouldn’t have happened

The P had to prove that it was more likely than not that but for the clearing of the debris, the accidentwould have been minimized

The dissent from Oke became the RULE: that you do have a positive obligation when you create aroad hazard even if its created non-negligentlyRULE: If you create the hazard you have a positive duty to warn others of it

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Zelenko v Gimbel BrosReliance Relationships and Undertakings; Rescue

Facts: Plaintiff fell ill in the defendants store - the defendant owed the plaintiff no duty at all and couldhave let her die - but the plaintiff attempted to render her medical aid and kept her in an infirmary withno medical care for 6 hours

Issue: Whether the store owner owed a duty if care to the plaintiff – YES

Rule: Exception to the general proposition that if a defendant owes a plaintiff no duty, then nonfeasanceis not negligence - there are times when a defendant’s

Analysis: This case invokes the idea that inaction isn’t a bar to recover if you bring yourself intolegal proximity. And you can be put in legal proximity if you becomes a barrier to someone elseintervening and helping (and maybe saving her)

Is this actively negligent rescue?

The foreseeability aspect of duty can establish whether or not you have a duty to act if youraction created the harm, then yes you defs have a duty

o Taking someone and moving them away from somewhere where they could be rescuedmeans you’ve created a new situation of harm and have a duty now (in this case)

O’Rourke v Schacht (1972)

Facts: A barrier that marked a detour around hwy construction was knocked over by a car at night. Popoinvestigates the accident but failed to warn traffic abt the danger on the rd. P injured when he drove hiscar into the unmarked excavation. PO had a statutory duty to direct traffic to prevent injury/damage

Issue: Whether police have a legal duty of care

Analysis: The Pos were under a statutory duty to maintain a traffic patrol of the hwy in question. Mainpurpose is to prevent accidents and the preservation of the safety of rd used. Their duty obligates them toadopt reasonable means of ensuring adequate warning was given abt the danger on a hwy

Negligence - includes both acts and omissions which involve an unreasonable risk injury

Judge says that bc of the PO’s legal obligation (not social obligation as for the ordinary person), thiswas nonfeasance amounting to misfeasance

PO’s duties come from statute and CL established a constabulary as an arm of the State to protectthe life, limb and property of the subject

After O’Rourke

If the police have a positive duty to prevent crime, then doesn't any victim of a crime have a caseagainst the

police?• No immunity of police officers• Even in a non-negligent accident there is duties that “pop up” - one will be imposed on the driver if

they caused another accident and another on the police if they could have prevented it• Must differentiate these from other statutory duties

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• There is now precedent establishing the police within these parameters - so the issue would bedealing with standard of care

• Cannot say this falls on every government actor but you can look at this case as reference