Torts- Helpful Charts and Ratios

8/18/2019 Torts- Helpful Charts and Ratios

1/79

LAW 406: TORTS AND LOSS COMPENSATION

Is there a Duty of Care?

Donoghue v. StevensonYou must take reasonable care to avoid acts or omissions that you can reasonably forsee would be likely to injure

your neighbour Neighbour = a person, so closely and directly affected by my act, that should have considered them as affected

when directed my mind to the act or omission in !uestion

Dobson v. Dobson"etus injured in car accident # sued mother No duty from mother to fetus # policy reasons to profound # affect women$s rights to liberty and e!uality too

immensely b%c anything she does could be called into !uestion if this decision was allowed &faie! !ue tose"o#! $ra#"h of the %a&oo'(s test)

Do not want to place constraints on role of reproduction in society &scare women from having kids'Duval v. Seguin # must forsee pregnant women would be using the highway # child$s rights crystalli(ed if

there is a live birth &if child dies instantaneously, can still sue, only re!uirement is that the child is born alive'

)ontreal *ramways # legal fiction # assume child born at time of accident giving them legal person statusso they had power to sue

%a&oo's *+ Neise#

&+' is there a reatio#shi' of suffi"ie#t 'ro,i&ity &neighbour principle'

&-' is there a#ythi#- that can limit the relationship e-ati#- the !uty itself, or i&iti#- the"ass of 'eo'e to .ho& the !uty is o.e!'

If there is a !uty/ is it a# Affir&ati*e Duty?

+ Res"ue

ordan /ouse0conomic benefit creates an affirmative duty

Duty not to over1serve &breaching 2i!uor 3ontrol 4ct'Duty to take care # not to eject patron onto a dangerous highwaynvitor1invitee relationship was sufficiently close to create a duty &5amloops 6+'7 it was foreseeable that

he would be injured by sending him out on his own and that could result in him being hurt*hi i b% i i i hi f b i i i h h b i j d


2/79

*hi i b% it i ti hi f b i t i t i t h h b i j d

distinguished form ordan /ouse b%c there, they needed to take care to protect him from injury, and here,there were - sober people who were present

additional factors8 they discussed it in the parking loteven if establishment asked who was driving, may not have made a difference

/eld8 No duty of care

elenko v. ?imbel @ros:atio8 when you voluntarily assume a duty or undertake to assist someone, and it puts a person in a situation

of reliance &so that their survival depends on you', an affirmative duty of care is created

Statutory Duties

0mergency )edical 4id 4ct:atio8 when you undertake to save somebody you are protected up to a point of gross negligence*his differs from the creation of danger where you automatically have a duty when you create a danger and is


3/79

:atio8 no eApectation to plan for an event that is out of the ordinary # reasonable person cannot foreseeeverything, accidents can still happen

Reasonable Conduct/Unreasonable Risk

@olton v Stone

:atio8 C point analysis

Degree of :isk of /arm &how many times has it happened s it likely to occur again':isk of injury &magnitude of injury to victim'

*ersus

3ost of 4voidance &ie. putting up new fence'Balue of the risky activity % Social Balue &cricket important to society'

&i' and &ii' # make up foreseeability&iii' and &iv' # make up defendant$s response to the risk

9riestman v 3olangelo:atio8 application of the C point analysis*he pursuit of criminals has great social utility and this overrides the risk that was associated with the firing of the

weapon on a public streetEuestionable decision # shows a reluctance of the courts to find police negligent &was a dissent' violent crime

would have made the decision less !uestionable

3iti(ens have a social contract with police and police legislation is an internal standard of care &internal standardswere raised by the result of this case'

Social contract outweighed all the risks

Role of Stautes – can alter the standard of care…

: v Saskatchewan


4/79

:atio8 only common sense custom issues can be !uestioned by a jury or lay person, whereas complicatedstandards of care can only be determined by other eAperts

n this case, jury could !uestion the screening practices of the doctor &interviewing patients, checklists, etc.', butthey would not be able to !uestion the complicated issues of artificial insemination w.r.t. /B

0. Altering the Standard of Care (has to do ith Public !nterest"

+' LOWER STANDARDS

4' #mergency0mergency )edical 4id 4ct

:atio8 0)4 lowers the standard of care b%c allows protection up to point of gross negligence

@' $ental and Physical Disabilities


5/79

/ad the risk been disclosed they would not have consented

3ounter argument # what !uestions are appropriate to ask3ost1avoidance is important here8 what would it have cost the Doctor to disclose all risks &ie. it would be easy to

have a checklist that would elicit the necessary patient information'

4rndt v Smith &chicken poA'3ory # approves modified objective test

if patient asks you if they$ll lose sense of smell, then Doctor must ask why this is important to the patientignore idiosyncratic testnly reasonable fears of the plaintiff can be accounted for, and not the idiosyncrasies


6/79


7/79

*he evidential burden then switches to the defendant to disprove the circumstantial case &neutrali(e the inference&CKP''

Statutory Pro*isio#s

Statutes like the +ighay %raffic Act of ,ntario can in some cases shift the burden of proof to the defendant and reversethe common law. *his is very limited in application, where a pedestrian is injured the driver of the vehicle must provehe was not negligent. &only in pedestrian cases, not collisions'

I#ferri#- Causatio#

Snell v "arrell &eye injury':atio8 court is careful to suggest that the burden still remains with the plaintiff but there are hints within the

judgment that indicate that a real burden &not the full evidentiary burden' can shift to the defendant &tactical burden' that if the circumstantial evidence cannot be rebutted an inference of negligence can arise

4fter breach of standard of care has been proven, ultimate burden still lies with the plaintiff but in the absence ofcontrary circumstantial evidence, an inference of negligence can be made &even w%o scientific precision'depending on the weight of that circumstantial evidence7 then if the inference is drawn, the tactical burdenswitches to the defendant.

/eld8 breach of std of care, drew inference, Dr couldn$t offset it # guilty

Muti'e Causes

3ook v 2ewis &eye injury'- hunters fired simultaneously # could not tell which one was the cause of the injury both had duty to care, both had std of care, both breached std of care plaintiff could not prove which person shot him, but knew it was one of them, and w%o proof, both would have

gotten off, so inference drawn, switched burden of proof to defendants, and if they could not disprove whichone did it, then both liable # results1oriented decision making

4they v. 2eonati &pre1eAisting sore back':atio8 once you can prove a Qmaterial contributionR &something beyond de minimis +1-P', the tortfeasor, is

responsible for the entire loss despite any preeAisting injury or conditions which may have predisposed the plaintiff to the injury.

as long as the defendant is part of the cause of the injury the defendant is liable # no basis for reduction in liability


8/79

s there a duty of care


9/79

/arris v **3 # negligent intervening acts by the plaintiff do not relieve a tortfeasor of liability ifthe negligent act is a foreseeable one

:escue/orsley v )c2aren #

as long as the second rescue is not foolhardy or grossly negligent the second rescuer is owed

a duty by the first rescuer when you put yourself in a position of risk, and someone comes to rescue you, you owe that

person a duty of careSecond 4ccident


10/79

/ercules )anagement # policy reasons are8 indeterminacy of scope, class, and damages # thesemight limit the application of negligent misstatement claims

@3 3heco # tort and contract coeAist, can contract out of a tort remedy Negligent 9erformance of Service

@D3 v /ofstrand # when the defendant has no knowledge of the class of plaintiffs and there is no

reliance to create risk then there is no proAimity and no duty of care0conomic 2oss 3aused by Defective 9roducts and Structures


11/79

@asely v 3larkson # mistake is no defense in intentional torts # only need volitionSmith v Stone # must have volition*illander v ?osselin # normal Jtest$ is messed with for children they need to know Jnature and conse!uences$

2awson v


12/79

Defe#ses to Defa&atio#

Sunlife # privilege O malice = liable and privilege O no malice = not liable?lobe and )ail # !ualified privilege &not open to newspapers', fair comment &open to newspapers'3hernesky # fair comment # Dickson dissent adopted in most jurisdictions legislation2ongsdon # moral duty eAists in limited conteAt

Do analysis for the opposing side and where counter1arguments fit in3onclusion over duty, standard of care, and causationmplications of decision

9olicy considerations@ig picture commentary

Step back and draw sensible conclusions for overall assessment:eal chances of success for your client


13/79

:emember the fundamental principles of torts8*ort law is all about compensation # making injured parties whole again.9laintiff has burden to show that the defendants through their negligence caused the injuries of the plaintiff )aterial contribution test # the Qbut forR test can$t always be used.

Ratio:

7e#era Pri#"i'e: Defendant is liable for any injuries caused or contributed to by the defendant. f the defendantUs conduct is foundto be a cause of the injury, the presence of other non1tortious contributing causes does not reduce the eAtent of the defendantUsliability.

*he plaintiff must prove the defendant$s conduct caused or contributed 1 but causation need not be determined by scientific precision.4s long as the defendant is part of the cause, an inference can be drawn to say that the defendant is responsible for the injury as a

whole. 3an use the Qbut forR test to show the injury wouldn$t have happened but for the accidents.9. +FK *he applicable principles.

NOTE:

Defe#!a#ts trie! u#su""essfuy to ar-ue the foo.i#- 'ri#"i'es:Muti'e Tortious Causes: 4pportionment b%w tortious causes is eApressly permitted by provincial negligence statutes and is

consistent with the general principles of tort law. 4pportionment only between the negligent parties &and in this case, not betweenthe defendants and the plaintiff. *he plaintiff in this case was not at fault &or negligent' for having a sore back.'

Di*isi$e I#8uries: 4pportionment is permitted when there negligent actors are responsible for different injuries &one to arm and oneto leg'. n this case you can$t divide the herniated disk injury, therefore this principle doesn$t apply.

A!8ust&e#t for Co#ti#-e#"ies: 2ook at things that would happen in the future. n this case the herniation wouldn$t have happenedwithout the accidents therefore this principle does not apply. Defendants wanted negative contingencies to apply to this case, butthis principle doesn$t apply because the herniation has already happened in this case. f the herniated disk hadn$t happened the plaintiff would argue for positive contingencies.

I#!e'e#!e#t I#ter*e#i#- E*e#ts: ther negligent events where you can pin the responsibility on another party. n this case theintervening event &his bad back' was not a negligent act. /is bad back was a non1negligent intervening act. /ad he donesomething irresponsible # such as doing heavy lifting # he would have been contributorily negligent.

Thi# s


14/79

*he proper test for "ausatio# in cases of negligent donor screening in whether the defendant$s negligence Qmaterially contributedR tothe occurrence of the injury. 4 contributing factor is material if it falls outside of the de minimus range.

*he plaintiff retains the burden of proof that the failure of the 3:3S to screen donors with tainted blood materially contributed to <contracting /B from tainted blood.

*rial judge should have asked whether the donor would have self1deferred or been eAcluded if the 3:3S had followed the appropriatestandard of care for a professional voluntary blood bank in North 4merica at the time, as represented by the 4:3 )arch +KF;

pamphlet.

Co&&e#ts:

t is important to resist the temptation and to assess the claims on the basis of what was or reasonably ought to have been known at thetime that the appellants attempted to screen blood donors who were infected with /B or 4DS.

Ater#ati*e *ie.8 *wo elements against the ade!uacy of donor screening measures should have been tested8 &+' the informationalcomponent, involves a consideration of the nature and eAtent of the information made available to potential donors, and &-' theawareness component, related to the measures taken to ensure that this critical information is brought to the attention of potentialdonors and fully understood by them. /ad the trial judge considered this approach, he may have concluded that the donor screening

measures implemented by the 3:3S in )ay +KFC were inade!uate and that proper screening measure would, more likely than not,have deterred the donor from donating.

S'e"ia Pro$e&s of Causatio#

There "a# $e &uti'e "auses of #e-i-e#"e:

*he defendant can be seen as the sole cause of the plaintiffUs loss.*here can be one defendant who does a bunch of different things & $c-hee' some of which are culpable and some of which are not.)ultiple causes with different defendants &Cook . eis'.4 plaintiff and multiple defendants whose actions combine to create the harm & 0ordan +ouse'11- faults both re!uired to lead to fault.3ontributory negligence &Crocker '

*he plaintiff establishes that the defendant was, on +P, a cause of the injury*he defendant has also established that they acted together &plaintiff and defendant' to create the harm

;air"hi! *+ 7e#ha*e# ;u#era Ser*i"es LTD 1001F +L+ '+ 16

Facts: 3laims were brought against employers by estates of former employees. 0mployees had been employed at different times and

for different periods by more than one employer. @oth employers had a duty to take reasonable care to prevent the employee frominhaling asbestos dust. @oth employers breached this duty and as a result the employees inhaled eAcessive !uantities of asbestos dust.0mployees contracted mesothelioma, and any cause of the conditions form other sources could be discounted.


15/79

@efore 34N the common law said that if the 9 was in any way negligent in relation to their injury they are out of luck. 34N made the playing field more level for plaintiffs.s. +&+'8 apportionment of liability based on fault &based on degree they caused the plaintiffUs harm'7 if itUs not possible to tell than it

should be e!ually apportioned between them(0udge still needs to identify 1"

s. -8 jointly and severably liable &separately or together to sue for the losses'

(sue one and you can sue them all"s. H IL8 eliminates Wlast chanceW doctrine &where the conse!uences could have been avoided'

()erson ith last clear chance of aoiding harm used to be res)onsible for the damages"

1+ Lea&a# *+ Rea 9N++S+C+/ A''ea Di*isio#) C: 1@@ ultiple de!endants " #egligence $!ault% establis&ed " Cause &idden " 'ot& e(ually liable

Facts: /ead1on collision of two cars. 0ach testified other was on wrong side of road. Gnclear how accident occurred and who was atfault. *rial judge thought both were slightly on otherUs lane. Dismissed both claims.

Issue:


16/79

As a result of 3agon $ound 8 :emoteness should be far more concerned with foreseeability than with remoteness. 9. ;-C

+ The Wa-o# Mou#! 9No+ ) 96/ PC) C: 31

Reasonable Foreseeability " +verrules )ole*is $responsible !or all direct da*ages%

Facts: Due to carelessness of the appellantUs servants, the 4ppellantUs ship spilled oil in the wharf area. *he :espondent owned theadjacent wharf. 4ppellant assured the :espondent that it was ok to continue welding, saying that oil would not burn on water. *hey

continued to work, their ship and wharf caught on fire. il and a cotton rag caught fire from a spark of the :espondentUs welding. *hewharf was severely damaged.

Holding: 3ourt overruled Polemis and replaced it with a standard tied to foreseeability # reasonable foreseeability of conse!uences #what the Defendant ought to have known. Defendant not liable, in this case the damages were too remote.

Ratio: ,est 8


17/79

a+ The Thi# S


18/79

Reaso#s: t was foreseeable that a child may put his arm out the window. *he negligent act was driving too close to the post. t wasargued by the respondent that but for the child sticking his arm out the window, he would not have been hurt and this was anintervening cause. *he courts did not accept this argument and looked at the event happening as a whole.

Ratio: If so&ethi#- is a foreseea$e "o#seue#"e of your #e-i-e#t a"tio#s the# it is #ot a# i#ter*e#i#- fa"tor+

)erely because the plaintiff$s injury is caused or contributed to by his own negligent act, or the wrongful act of a third person, does

not mean that the def is freed from liability.f the scope of the def$s duty is to protect the pl from the very injury that occurred, it is not a defense for def to say that pl$s action

was an intervening cause which should shield him from liability.

Recurring Situations

Rescue

Horsley v. ac1aren/ 9The O-o'o-o)/ 91)/ S+C+C+/ C '-+ 3@@

Facts: D &)c2aren' owned the boat. )athews fell overboard. *hey were trying to rescue him and D backed the boat up to eAecute

the rescue instead of coming head on. /e did this twice. )athews fell under the water, and /orsley jumped in after to save him andsuffered a heart attack and died. 9athologist determined that /orsley$s death was caused by shock resulting from sudden immersion inthe cold water.

Ratio: *he first rescuer can owe the second rescuer a duty of care when he is negligent in his rescue and it is reasonably foreseeablethat a second rescuer will attempt rescue. f you botch the rescue you create a new situation of risk. 4s long as the second rescue isnot foolhardy &grossly negligent' then the first rescue owed a duty to the second rescuer. *0S*8 that the second rescuer must not be foolhardy. f not foolhardy then there is a duty owned by the first rescuer to the

second. Negligent defendant had a DG*Y to a rescuer coming to aid of person. *his is an independent duty, not derivative. Doesn$t matter

if the rescuee is not injured. 4lso, if the rescue is a futile eAhibition of recklessness for which there can be no recourse, rather than brave acceptance of a

serious risk, there is no duty owed by the defendant. Ship owners have a positive duty of care to rescue passengers.

4 person can put themselves into peril, if they breach a duty of care to themselves in doing so, will be held liable to a rescuer who

comes to their aid. 4 rescuer can owe a duty of care to another subse!uent rescuer if8

a' /is attempt to rescue increases &creates new' the peril, and b' nduces the second rescuer to move in and make a rescue.

ZZ must find negligence in first attempt, will be very high standard since it is a rescue attempt.

Second 2ccident

3eiland v. Cyril 1ord Carpets 1td+/ C '-+ 36

Facts:


19/79

Facts: *he plaintiff sustained leg injuries for which the defendants were liable, and as a result, his leg would uneApectedly give way beneath him.


20/79

SCC8 4ppeal dismissed. Issue: 3hain of causation3an the manufacturer use the learned intermediary rule to discharge its legal duty to the consumer BES+ Did Dow meet the standardof care re!uired of it by using the Qlearned intermediaryR rule NO/ Do. faie! to a!euatey .ar# the !o"tor+

Reasoning: *he learned intermediary rule can only be applied if the doctor &the intermediary' had knowledge about the productwhich approAimated the knowledge of the manufacturer. n this case Dow had failed to provide Dr. @irch and others about the

likelihood of rupture. 4s such, Dow cannot rely on the learned intermediary rule. Ratio: "ollowing can break a chain of causation8 learned intermediary, doctor, and patient.*he learned intermediary rule provides a way the manufacturer can discharge its duty to give ade!uate information of the risks to the

plaintiff by informing an intermediary, but if it fails to do so it cannot raise the defense that the intermediary could have ignoredthis information.

*he learned intermediary rule Qis applicable either where a product is highly technical in nature and is intended to be used only underthe supervision of eAperts, or where the nature of the product is such that the consumer will not realistically receive a directwarning from the manufacturer before using the product.R

CLASS:

*here is a duty to warn if the 'ro!u"t is i#here#ty !a#-erous &ie. anything you put in your body' Nature of the product may make it impossible for them to warn the consumer directly, therefore can discharge their obligation to the

consumer through the learned intermediary."or Dow to succeed in its claim they had to show that the knowledge of the doctor on the breast implants approAimated that of the

manufacturer # the learned intermediary must be learned.

4+ 7o*er#&e#t Lia$iity

9roceeding 4gainst the 3rown

?overnment liability is important because it is a growing area of the law. t is challenging because you need to have a wide area ofknowledge in many fields including constitutional law, administrative law, contract law, property law and to be integrate all thatknowledge into tort law. *here is process issues involved as well7 the nature of government$s responsibilities has to be reflected in thelegal process. f you are thinking about suing a government you must immediately turn to the Proceeding Against the Cron Act andunderstand it. You must also pull all of the statutes that may deal with your action.

Section of the Proceeding Against the Cron Act says you can sue the 3rown in tort.t becomes problematic if your claim deals with the legislative authority of the government. *herefore you must look at the

statutes # statutes may eAplicitly eAclude duties. &0.g. the /ighway traffic accident says the 3rown cannot be sued for theabsence of a sign on a highway.'

*he fault in these cases is in substandard conduct # the government failed to do what an ordinary individual in a similar situation

would have done. *he government is still subject to the rule of law7 when the government acts negligently you can pursue actionagainst the government to the same eAtent you would a normal individual.


21/79

4s long as those limitations are met by the )inister, then the )inister can eAercise that discretion in any manner he chooses. &*heseare the three criteria that you look at when you decide to sue the )inister'.

Ratio: )ust look to the act to determine the )inister$s discretion and powers and then apply the three criteria to determine if the)inister can be sued.Co**ents: *he government owes no general duty not to harm its citi(ens.

9urely economic loss is not a well protected concept in a capitalist economy.9urely economic loss O government liability O license = little chance of recovery.n this case the )inister revoked the license because of policy and political reasons7 there was concern over the impact the

eAperimental fisheries may have on the environment.

De"o"< *+ A$erta/ A$erta C+A+ 91000)/ SM '-+ 104

Facts: *he appellants filed C sets of pleadings each claiming damages suffered as a result of receiving negligent medical care,attention and treatment which resulted in injuries, and in certain cases, death.

Issue: 3an you sue the honorable :alph 5lein &9remier of 4lberta' and Shirley )aclellan &)inister of /ealth' in their personal

capacities BES+ Reasons: You can$t sue the 9remier of 4lberta because it is not a legal position created by statute. f you only sue the 3rown youmay not be allowed in discovery to call specific members of the government and that is why these two politicians were named personally.

ust *+ The Juee# i# Ri-ht of +C+/ SCC 9)/ '-+ 46

Facts: 4ppellant and his daughter set out for a day of skiing at


22/79

4dministrative 2aw3onstitutional law@ona fides%bad faith

*ort→ damages

3ontract

?overnment will be liable for any injury that could have been caused by another person 1 as liable as the general public.

?overnment liability concerns itself with the special jobs that the government has.


23/79

Does the statute eAempt government from liabilitys the decision pure policy 0conomic, social or political considerations

s the policy decision eAercised bona fidef not, go to a traditional tort analysis.s the standard of care modified by budgetary restraints, availability of !ualified personnel%e!uip.

f it is an operational decision, is the standard of care met &same as &c' above'.

;ra&e.or< for oo


24/79

?vt should have been on the winter schedule. &4rgument fails # it was a policy choice.')anner and the !uality of the road inspection system are flawed. &4n operational argument.'

De"isio#: 4ppeal dismissed7 the manner and the !uality of the inspection were operational decisions and subject to tort law scrutiny.


25/79

De"isio#: 4ppeal allowed7 city was negligent in the manner of inspection.

Reaso#s: Q*he 3ourt of 4ppeal erred in concluding that the appellant, through his own negligence, removed himself from the class of persons to whom a duty of care was owed.R

0ven though he knew he was proceeding without the re!uired permit the S33 held that he was still within the ambit of who the

city owed a duty of care to.n order to avail itself of the defense set out in :othfield, the city must show that the appellant$s conduct was such as to make him

the sole source of his loss. /is conduct must amount to a QfloutingR of the inspection scheme. *his was not the case here.

Co&&e#ts: *he court found that the city and the contractor were jointly and severally liable &liable together'. *his makes them issome aspects a single unit. *he plaintiff$s proportion of guilt is against anybody in the defendant category.

4n andendum was issued to correct the !uantum of damages. *he contractor was held FMP liable, the city was found +CP liableand the plaintiff was held HP liable.

*he city does not want to be a joint and several tortfeasor because then both defendants are each bound to pay the whole award of

damages.Damages set at [-,MMM.


26/79

;. 9olicy or operational

Wro#-fu irth

4ealey v. 'ere8ows/i SM 11

Facts: 5 went to @ for tubal ligation to prevent subse!uent pregnancy&s'. 9rocedure failed and 5 had a third child, unplanned. 5 sueddoctor for wrongful birth. 9arents were in the middle of a divorce.

Issue:


27/79

disappointment, sorrow, distress, emotional reactions b%c it$s common, not an objective criteria, reactions would differ among people, because people are going to die anyway.

Sheila says # claim that someone is gone is different from grief from a death.


28/79

Facts: *his was an appeal by the defendant from a damage award for nervous shock. *he plaintiffUs vehicle collided with themotorcycle operated by /. / and the plaintiffs were injured and / remained lying on the road.


29/79

:epresentation untrue, inaccurate, misleading:epresentation negligently made9laintiff relied on representation in a reasonable manner

Defendant must be able to foresee the reliance


30/79

Scope of public insurers duty8 not as stringent, are not specialists in insurance. )erely to inform the customer of all the options ofcoverage available. dea is that a private insurer would be more personali(ed and special, as opposed to this government insurer.

Contra )roferentem rule of construction8 ambiguous terms of a contract of insurance are resolved in favor of the insured.3ausation clear here. /ad the person bought the eAtra insurance, would not have suffered the loss.

Ratio: +. f someone who possess a special skill, undertakes, irrespective of contract, to apply that skill for the assistance of anotherwho relies on this skill, a duty of care will arise &donUt need to be a professional by degree 1 all they need to do is to hold they are

professionals even if they arenUt'. :easonable reliance is essential-. Silence can also amount to a negligent mistake;. n a private insurance company 1 have a higher duty than public insurance but public insurance still has a duty.Test:

:eliance on the info # doing or not doing an action to your detriment. :eliance determines when there is and isn$t a duty ofcare.

t was reasonable for them to do so*he speaker knew they would rely on the info

CLASS:n 4lberta, [-MM,MMM statutory minimum auto insurance limit.ptional8 3ollision on own car, medical, uninsured motorist &S0" 6CC'.9urely economic loss because " is suing for the absence of proper insurance to replace the money he can no longer collect from the

defendant in the tort action where he had physical damage.


31/79

complained of were not dealt with in the contract. *he contract did not state that the position offered during the interview might not be available. Ratio:

Special relationship includes fiduciary 1 0mployer%employee.


32/79

-. :elationship of :elianceDefendanta' "oreseen reliance by 9 and b'


33/79

3ontractors, subcontractors, architects, engineers, who take part in the design and construction of a building will owe a duty in tort tosubse!uent purchasers of the building if it can be shown that it was foreseeable that a failure to take reasonable care inconstruction of the building would create defects that pose a substantial danger to the health and safety of the occupants.

nus is on the plaintiff to show that7*here is a serious risk to safety.*he risk was caused by the contractor$s negligence.

:epairs are re!uired to alleviate the risk &only recover costs to put building in non1dangerous state'3ontractors duty8 to take reasonable care in constructing the building and to ensure that the building does not contain defects that pose

foreseeable and substantial danger to the health and safety of the occupants.n Rafuse8 2e Dain made it clear that, although duties in tort and 5 may arise concurrently, the duty in tort must arise independently of

the contractual duty.923Y arguments for establishment of the duty7

2ogically, if a contractor would be liable to person injured by defects in construction, should also make them liable for defectsthat pose a )otential , substantial danger. &why wait'

9unishes &economically' those who don$t fiA dangers by disallowing a claim in tort, whereas those who wait until someone is

injured, do &preventative function'9rivity of 5 and caeat em)tor are not arguments which work. *here is a general tort duty to construct a building safely, whichcrosses contractual boundaries. Shouldn$t be absolved of the duty just because the building is sold. 9urchase should nothave to assume all the risk of latent defective construction.

3ourt used Anns test7i' s there proAimity

• Yes. t is reasonable to foresee that the negligence of a contractors work could affect the safety of

public &see pt.- above', and it is forseeable danger even for the conse!uent purchaser that danger will materiali(e

•


34/79

Cai& for "o#tra"tua reatio#a e"o#o&i" oss

Facts: Def was the owner of a tug that negligently struck a railway bridge. *he bridge, owned by 9ublic


35/79

Statutory basis is 6atal Accidents Act .4 claim for loss of services brought forward by employer for loss of services of injured employee.

&limited by D9Amato'. Per *uod seritium amisit ,

'ow alley Hus/y $'er*uda% 1td. v. St. 6o&n S&ipbuilding 1td+/ 9)/ S+C+C+/ C: 4@4

Z/2 and @B contracted with @B/@ Xseparate parties%legal entityZheating system = failure to warn &flammability%circuit breaker wasnUt installed' &similar to :ivtow'Zclaim8 repairs O loss of profits &pure economic loss'SCC: Denied liability for builder of SS@ = looked at contract and found the contract wins = no independent tort # found CMPliability on :aychem for failure to warn.1/2 I @B = contract prevailed = action dismissed here &parties have contemplated this loss in contract' = denied claimReaso#i#-:

+. product is highly technical

-. product is such that ultimate consumer canUt be warned directly;. intermediary must be learned &eApert supervisor' /ere = was direct contact%not highly technical%no need for eApertsupervisor'

C. 3ausation8 yes, both by subjective and objective test. "ault allocation = e!ually liable &both knew same things'H. Duty to warn to @B and /2 &here we have economic relational loss'11like in /osk and DU4mato = economic loss

relation not allowed in 0ngland but in 3anada still possible:G208 for relational losses8 joint venture = may be successfulZZvery important1 nly in special circumstances but categories are not closed8

+. possessory or proprietary interests

-. average cases;. joint ventures


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6+ Duty to .ar# to VI a#! OOL? &here we have economic relational loss'11like in /osk and DU4mato = economic loss relationnot allowed in 0ngland but in 3anada still possibleRHLE: for relational losses8 joint venture = may be successfulZZvery important, pg. CF nly in special circumstances but categories are not closed8

+. possessory or proprietary interests-. average cases

;. joint venturesZcase here doesnUt fall into any of these categories b%c8

+. contract not property-. not case of general averaging;. not joint venture

3/0358 can recover for some other reason for policy matters pg. CK &)9:*4N* S*09'

+ Metho!oo-y SHMMARB:0Aceptions to the general eAclusionary rule% categories are never closed &para CF'8 +. property interest-. general average # marine law, sinking ship, product overboard;. relational is a joint venture 1

E,"e'tio#s: +. when the deterrent effect is low and-. claimantsU opportunity to allocate risk is slight;. where there is ine!uality of power = eAceptions to recovery &can get around the rule'

)ajority says that if you can$t get something in 5, can$t sue in *2a"orest and )c2auchlin &dissent' says that just because you have contractual terms, should be able to sue in *

owners I hirers v. supplier duty to warn & +ollis" those who use their products # reasonable foreseeabilityuse public policy analysis # general eAclusionary ruledid 5 negate duty to warnlearned intermediary defence & +ollis'

product is highly technical product is such that ultimate consumer can$t be warned directlyintermediary must be learned

causation

fault allocationnly in very special circumstances will be liable but categories are never closed

possessory or proprietary interestsaverage cases


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Coo'er *+ o$art 100/ SCC

)ortgage @rokers 4ct. 0vidence of rogue mortgage broker. :egulatory body doesn$t take steps to discipline the guy or eApel himfrom the society. *he investors lose money. 4ction against the mortgage broker # your failure to regulate caused me economic loss. fyou$d done your job this never would have happened. "ailure of enforcement.

E!.ar!s *+ La. So"iety of H''er A$erta 100/ SCC 0

2egislatures give money to the law society to regulate behaviour of lawyers. 2awyer involved in fraud, no action taken against thelawyer. 9eople who invested money with the lawyer lost money because of the fraud.

@oth cases # 4ction denied # no sufficient foreseeability by the regulatory body.

WRON7;HL PRE7NANCB

:ole of proAimate cause8 when is enough enough


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*he doctor was negligent in performing the procedure # did not meet standard because failed to apply the clip properly9ublic policy reasoning could both support and deny recovery for child1rearing costs8 one the one hand, public policy favours sensible

family planning and does not impose children on people contrary to their choice. n the other hand, children are regardedundeniably by the state as benefit and it is the loss of a child &not the birth' that in law is a compensable wrong.

*his is analogous to a claim for purely economic loss because no injuries incurred*otal :ecovery and ffset%@enefits approaches are flawed because they assume that the birth of a health child can constitute an injury.

2atter is also flawed because the responsibilities and rewards cancel each other out.t is not enough that the 9l$s injury be foreseeable to get child rearing damages. Damages are awarded to compensate for an injury, not

in the abstract, but with reference to the purpose of the activity &ie8 sterilisation'. *herefore, the fact that the parents are happywith their healthy baby and can afford to raise her is an important consideration.

n this case, there is no damage caused by the Def$s negligence that prevents the baby$s parents from fulfilling their responsibilities toher. 4ccording, the child1rearing costs in this case are not a compensable loss.

Dicta: Note that this was not a case where a sterilisation was sought to protect a mother$s health and mother became ill, avoidtransmission of a hereditary condition and child was born diseased, or economic necessity and unreasonable financial burdens were

imposed.

Ratio: &2aA .'f a child is born as a result of unplanned pregnancy following a failed sterilisation, this does not, in itself, constitute a harm thatinevitably leads to damages for child1rearing costs.4n award for child rearing costs very much depends on a court finding that the birth of a healthy child in fact constitutes a harm. &0A8sterilisation is sought for economic reasons and its failure imposes an economic burden or it is sought for genetic reasons and itsfailure produces a defective child.'

Class:


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Miti-atio# of !a&a-es8 didn$t take reasonable steps to minimi(e the eAtent of your damages, mitigation is a post1damage concept

+ Co#tri$utory Ne-i-e#"e

Contributory #egligence 2ct/ SM '-+ 0

"ault of two or more persons contributed to the damage caused. 2iability is proportioned to each according to their relative fault.

4 plaintiff has a duty to themselves.

*he onus of claiming contributory negligence is on the defendant &because it is a defense'.

'utter!ield v. Forrester/ 90)/ %++ C:

Facts: Defendant left a pole across the road. 9laintiff was riding his horse very !uickly at dusk. *he horse ran into the pole and the plaintiff was injured. 2eft the tavern, but not drunk. Reasoning: 4 reasonable driver would have seen the pole and taken evasive action. 4 prudent driver would not have suffered thisdamage. *he defendant has not been prudent, the pole shouldn$t be over the public highway at dusk.

Ratio: No claim can be made against the defendant because the plaintiff was negligent and could have prevented the injury by being prudent. 4 plaintiff should use reasonable care to avoid injury due to the defendant$s actions.

4ny amount of contributory negligence on the part of the plaintiff is an absolute bar to recovery.CLASS: /arsh rule8 but the court believes that this will deter careless conduct by plaintiffs. *here is no proportionality # all ornothing.

Davies v. ann/ 941)/ E+R+ L++ C:

Facts: *he plaintiff had left his donkey, with its feet fettered, on a highway. *he defendant negligently drove his horses and wagonagainst the donkey and killed it.

Reasoning: 3ourt found that although there may have been negligence on the part of the plaintiff, unless the plaintiff might haveavoided the conse!uences of the defendantUs negligence by the eAercise of ordinary care, the plaintiff is entitled to recover. 4lso held

the jury was properly directed that the plaintiffUs negligence in leaving his fettered donkey on the highway was no answer to the action,unless the donkeyUs presence there was the immediate cause of the injury. Holding: 4 reasonable person should have avoiding running over the donkey. Ratio: 2ast clear chance doctrine. 0ven if plaintiff is contributory negligent, if the defendant had the last clear chance to avoid theloss, the defendant will be liable.Co**ents: *oday$s Contributory 'egligence Act

3ontributory Negligence 4ct 4lta$s 34 # determine degree of fault of the plaintiff on one hand and defendants on the other. *he court would then determine the

degree of fault between the defendants. f you can$t collect from D+ &bankrupt', and they are jointly and severally liable, D- is

liable for the entire proportion of the defendants. 9laintiff is not jointly and severable liable. *his is not affected by the plaintiff being contributory negligent.

3ontribution and indemnity8 when one of the defendants pays the plainitff$s damages and then seeks the re!uired amount from the

second defendant &because they are jointly and severably liable '


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:olenti will arise only where the circumstances clearly show that the ∏, knowing of the virtually certain risk of harm, in

essence bargained away his right to sue for injuries incurred as a result of any negligence on the ∆$s part.

is restrictively construed.

Showing that the ∏ Qtook a chanceR is not enough

3ome up often in QDrunk driving willingness of passenger casesR

Ha*bley v. S&epley C': >= a&$ey 9A''2P) *+ She'ey 9Res'2Def)

9Hse! his 'oi"e "ar as a roa!$o"< a#! .as i#8ure!) * 9!ro*e i#to sto''e! 'oi"e "ar)

96) O#t CA 5 C 406

No *ou#tary assu&'tio# of ris< 5 'oi"e&a# i# "ourse of his !uties

Facts: n radio instructions, the 9l used his police cruiser as a roadblock against the Def, a motorist, who was escaping arrest. *heDef$s car, then being driven at high speed and in the wrong lane, proceeded into an intersection against the traffic light and struck the

police car, before the 9l could get out.

Issue: s the 9l policeman barred from recovery under the principle of olenti non fit in;uria NDoes the principle of olenti non fit in;uria apply against a person whose injuries occur in the discharge by him of a public duty so asto absolve an otherwise negligent defendant whose conduct caused those injuries N # appeal allowed

Reasoning:

9l in this case clearly knew of the risk of harm to which he might be eAposing himself @G* it would be a reversion to the rigid old conception of volenti to hold that he thereby accepted that risk so as to absolve the

defendant of any duty of care towards him.

Ratio: &2askin .4.' # *he volenti doctrine has no application to a policeman who is aware of a risk of injury which in facts befallshim in the discharge of the duties of his office.

Class:

ne of the +st cases where start to see a shift from Qdid he freely encounter the known riskR4 person will not be taken to Qfreely encounter the riskR when it is his duty Not enough any more that you just know there$s a risk. /ave to know that the risk is coming about because of unreasonable care or

negligent conduct and you must be consenting to the negligence. Gps the ante considerably.4greement can be eApressed or implied4rgument here is by his conduct in continuing with his employment, he encountered the risks freely.2askin says this is not real test. :eal test is whether he$s consenting to allow someone to treat him negligently.


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Hall v. Hebert/ 93)/ S+C+C+/ C '-+ 40

Facts: *he owner of a vehicle and his passenger, both impaired, were travelling in the dark, on a gravel road, one side of whichsloped sharply away to a gravel pit. *he vehicle stalled, and the passenger asked to roll1start the car. *he owner agreed, knowing thedifficulties of handling and roll1starting the car and being aware that the passenger had consumed beer that evening. *he passengerlost control of the car and it overturned into the gravel pit. *he passenger suffered significant head injuries and sued the owner fornegligence.

*he tria 8u!-e held the owner negligent in letting the passenger drive, but found the passenger - per cent liable. *he Court ofA''ea allowed the appeal on the ground that the owner owed no duty of care to the passenger, and further, that the doctrine ofillegality applied. *he Supreme 3ourt of 3anada allowed the passengerUs appeal and found him M per cent contributorily negligent.

Reasoning: *he Supreme 3ourt of 3anada held that recovery in tort should only be barred due to the plaintiffs immoral or illegalconduct in very limited circumstances. *he power to bar recovery lies in the courtsU duty to preserve the integrity of the legal system,and thus is eAercisable only where a damages award would, in effect, allow a person to profit through a direct pecuniary reward fromillegal or wrongful conduct, or permit an evasion of a penalty prescribed by the criminal law.4s a general rule, it was eAplained, the illegality principle will not operate to deny damages for personal injury, since tort suits aregenerally based on claims for compensation. 3ompensatory damages, which compensate for personal injuries rather than for an illegalact, only put the plaintiff in the position he or she would have been in had the tort not occurred. *hese awards, the 3ourt continued,cannot be said to be the profit of, or the windfall from, an illegal act.*he Supreme 3ourt of 3anada decided that this passenger need not be denied recovery since he did not genuinely seek to profit fromhis illegal conduct, and the claimed compensation was not an evasion of a criminal sanction. nstead, the compensation sought by the passenger was for injuries suffered. t was reduced by the eAtent of his contributory negligence, but not wholly denied by reason of hisdisreputable or criminal conduct.

Ratio: 3ompensation does not come from the character of the conduct &illegal or not' but from the damage caused to him by thenegligent act of another.*o have a successful illegality defence8must have negligence

must owe a duty of caremust not profit from the crimeinjury must be separate and apartCLASS:

*he doctrine of e< tur)i causa non oritur actio is applied only to preserve the internal consistency of the law. *herefore, is appliedonly when tort law would result in plaintiff7 profiting &being rewarded financially for an act of wrongdoing' from an illegal act, or evading a penalty prescribed by criminal law. n essence, can$t have recovery for what is illegal.

3ompensation does not come from the character of the conduct &illegal or not' but from the damaged caused to ∏ by the negligent act

of another.*he principle allows the court to disallow compensation for the ∏$s own illegal conduct.

*his defence still eAists but in limited circumstances.f seeking eAemplary or punitive damages &which are in place to penali(e', then e< tur)i applies.


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participant understood the clause. participant voluntarily agreed to take part in the activity, and party seeking to rely on it did not eAert pressure &they had e!ual bargaining power'.

4ttempt to get to fundamental breach to negate the waiver did not work because covered precisely the kind of negligence whichoccurred.

4rguments for ∆8

3lause does not apply to particular situation.4n une!ual bargaining power eAisted.Gnreasonableness of the waiver.*he clause was written in form of indemnity and not release. n a true indemnity clause, Dyck was agreeing that if he caused damage

he would indemnify the association. Ratio: "undamental breach to negate the waiver won$t work if it covers precisely the kind of negligence which occurred.CLASS:

'ous actus s. mitigation=

'ous actus → a Jcommission$

)itigation → an Jomission$ or failure to perform./ow does mitigation and contributory negligence fit together

)itigation deals with post injury conduct.3ontributory negligence deals with pre1injury negligence.

1 only case of waiver to be successful

Croc/er v. Sundance/ 9)/ S+C+C+/ SM '-+ @

Reasoning: *he Supreme 3ourt of 3anada stated that the defence of *ou#tary assu&'tio# ris


43/79

*hin skull only applies if condition is pre1eAisting or caused by the accident. *he objective test of reasonableness prevails in theabsence of any pre1eAisting condition.

*he nature of the pre1eAisting condition must be considered too1 if it prevents a person from making a reasonable decision, thenirrelevant that the decision is unreasonable. /owever, normally p cannot make the d bear the burden of his unreasonable behaviour.

3onflicting medical opinions 3onsider degree of risk, gravity of conse!uences of refusing it, potential benefits arising from it.

@urden of proof is on the ∆ &balance of probabilities' to prove the unreasonableness of the ∏$s decision.njured∏ has a duty to mitigate the damages and may not be able to recover damages if his acts are unreasonable.


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CLASS: n Samms . #ccles &Gtah' 1 seAual harassment case 1 +st time distress was found to be compensable 1 looked at intentionalcauses of distress

ACCIDENT NE7LI7ENCE INTENTIONAL TORTS

9opular in criminal law, in particular seAual assaults.

4s a practical matter, suing someone in tort has much to do with the ∆$s ability to pay.

9eople are not normally insured for intentional acts.

A+ I#te#tio#a I#terfere#"e .ith the Perso#

+ I#te#tio#

istori"a Co#te,t C 33

*orts not re!uiring proof of damage8 Do not re!uire a !uantum amount for damage to be awarded. You can be awarded damages without

showing how much harm was inflicted. *hey include8*respass to person &battery, assault'*respass to land.*respass to chattels.

ntentional *orts8assault batteryfalse imprisonmenttrespass to goodstrespass to land)ust8 be direct interference with persons, ppty or chattelshave proof of damage to be actionabledefendant$s conduct must have been wrongful be intentional or negligentDirect8 an injury can be described as directly produced by the defendant$s9os&an v. 1arin #ova Scotia C2 $;% C' EG

Facts: referee, action framed in assault

Ratio: n an action for damages in trespass where the plaintiff proves that he ahs been injured by the direct act of the defendant, thedefendant must prove that his act was unintentional and without negligence to be entitled to a dismissal.

Holding: Not intentional &likely an accident but even if it was it would be ok if police used reasonable force' and no negligence.


45/79

Ratio: %ransferred intent4 t does not matter who the defendant was trying to injure, there was intention to strike an unlawful blow,and it is not essential the injury be to the one intended to receive it. ntention can be transferred to a third party.CLASS: 3ase of transferred intent. ntent is there to commit a tort%unlawful blow.Sufficient for the wife to recover because the defendant intended to do the same act to the husband.nce we have the intention it can be transferred between torts. 3an also transfer between people and torts.

'asley v. Clar/son C 4Facts: Defendant became a little carried away while moving his lawn and mowed some of the plaintiff$s. *he defendant apparentlydidn$t notice he crossed the balk &the dividing ridge' and the hade &strip of land left unploughed to act as a dividing line'.

Reasoning: 3ourt found for the plaintiff because the act of the defendant was voluntary, and his intentions and knowledge are notmaterial here because they cannot be ascertained.

Ratio: )istake is no defence in intentional torts. f one intends the result &actions were voluntary' they are liable.

S*it& v. Stone/ 964)/ %++ C 41

Facts: 9laintiff brought action against defendant for trespass. Defendant pleads he was carried onto the land by force and violence ofothers, and was not there voluntarily.

Holding: udge said it was the trespass of the parties carrying the defendant onto the land, not the defendant. Ratio: *he act of the defendant must be voluntary in the sense that it was directed by his conscious mind.Class: 4sk8 Did the defendant act intentionally Did the act by his own accord

Tia#!er *+ 7ossei# C: 43

Facts: nfant, just under three years old, removed a second infant from her carriage and dragged her over +MM$, fracturing her skull andcausing some brain damage 4ction was dismissed. *hree year old not capable of committing the battery.

3riminal test8 is the child incapable of knowing the nature or conse!uences of his conduct and able to appreciate that it was

wrong. *his is the criminal standard, not fully applied. Test a''ie!: *he court considered whether the child knew the nature and conse!uences of his conduct.

Does the child have the capacity to appreciate the motion Does the child have the mental capacity to intend the conse!uences

3ourts are reluctant to allow people to escape responsibility for their actions.

Defe#!a#t would need to prove it wasn$t intentional and they didn$t have the capacity for it to be intentional. Does he know that

he$s moving his arm Does he understand the nature of the act that he is doing. Holding : 4ppeal allowed and the matter remitted to trial. Ratio: 9rinciples8 *o constitute assault, the defendant must be capable of forming an intent to the actions. *est8 s the child considered incapable of

knowing the #ature and "o#seue#"e of his conduct and appreciate that it is wrong f yes, not liable. Defendant would nee to prove it wasn$t intentional. /ere, the three year old not liable Wtender years doctrineW. &-arratt . Dailey,

year old was liable.' *respass when there is no right to touch another person &etc'


46/79

Ratio: Not every threat needs violence to constitute an assault.

4ssault = f the defendant was advancing with intent to harm, the threat was immediate, and there were means to carry out the

assault &raised hand, physical proAimity'.

,uberville v. Savage/ 9 6)/ %++ C 4

Facts: n the course of some +Lth 3 banter, S, put his hand on his sword and said to *, Wf it were not assi(e1time, would not takesuch language from you.W 3ourt dismissed *Us action for assault.

Issue:


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Reasoning: *he judge held, properly speaking, this action should have been battery, which is the intentional infliction upon anotherof harmful or offensive contact. n 3anada, however, the distinction between assault and battery appears to have been blurred, so thatassault may include battery.t was stated that once the plaintiff proves that injury was caused by the direct act of the defendant, the defendant has the onus toestablish the absence of both intention and negligence. *he store ownerUs act of grabbing @ with both hands and shaking himconstituted the intentional tort of battery7 he obviously desired to bring about offensive or harmful contact with @ for the purpose of

eAtracting a confession from him. t ought to have been apparent to the store own grabbing and shaking @, he had created the risk ofinjury to @ resulting from some part of @Us body coming into contact with some part of the store ownerUs body.*he judge eAplained that the concept of forseeability, as defined by negligence law, ought not to be imported into the field ofintentional torts. *o do so would ignore the essential difference between the intentional infliction of harm from failure to adhere to thereasonable standard of care and would result in bonusing deliberate wrongdoers who strike more forcefully than intended. *he testwas stated to be whether the defendant is guilty of deliberate, intentional, and unlawful violence or threats of violence. f this test ismet, and more serious harm befalls the plaintiff than the defendant intended, the defendant, not the innocent plaintiff, must bearresponsibility for the unintended result. *he fact that the magnitude of the intended physical contact eAceeds all reasonable or intendedeApectations is irrelevant.

Ratio: /aving intent to bring about harmful contact with the plaintiff, it doesnUt matter that the type of injury was not foreseen or intended.

nce the plaintiff proves that he was injured by the defendant, the defendant must prove lack of intent and lack of negligence.


48/79

o 4sk whether the wrongful act is sufficiently related to conduct authori(ed by the employer to justify vicarious

liability ncidental connections to the employment enterprise &such as time and place alone' will not suffice

o n determining the sufficiency of the connection between the employer$s creation or enhancement of the risk and the

wrong complained of, the court should consider8*he opportunity that the enterprise afforded the employee to abuse his power

*he eAtent to which the wrongful act may have furthered the employer$s aims*he eAtent to which the wrongful act was related to friction, confrontation or intimacy in the employer$s

enterprise*he eAtent to which the wrongful act was conferred on the employee in relation to the victim*he vulnerability of potential victims to the wrongful eAercise of the employer$s power

Holding 8 rgani(ation is vicariously liable for the seAual misconduct of its employee. *he employer$s enterprise created and fosteredthe risk that led to the ultimate harm

a"o$i *+ 7riffiths SM: 40

3ourt endorses 3urry$s decision. *he court reiterates it isn$t enough that the association allows access to children &time, place and howthey met is not enough', they have to increase the risk. *his is where the court split. *here is not doubt these cases reflect a shift to thestrict liability &no1fault' side &from absolute liability' # doesn$t matter if in course of employment the test focuses on the nature of therisk that the association activities posed &increase in risk and reasonable connection'. n strict liability there is no due diligencedefence &no fault is not a defence'. *he lines between negligent, strict and absolute liability are not so defined in torts.

Ratio: 4ffirms 3urry. t doesn$t matter if the acts occurred in the course of employment7 the test focuses on the increase in the risk.

4+ I#te#tio#a i#fi"tio# of &e#ta sufferi#-

3il/inson v. Downton/ 9)/ J++ C: 6

Facts8 D as a practical joke, falsely represented to the plaintiff,


49/79

Ratio: "or false imprisonment need to have8 mprisonment O *hat is unlawful &no right to enforce or constrain someone else$s options'

*otal restraint or obstruction or boundary is re!uired to find false imprisonment. @oundary can be physical or psychological or

mental therefore need to look at the mind of the accused and the physical circumstances. 2osing an aspect of freedom is notsufficient.

CLASS:

Disse#t: Denning says as long as you are preventing someone from doing what they want, that constitutes restraint. *his would be atotal deprivation of liberty.

"alse imprisonment = :estraint O authority over someone who has a lawful right to be there.

*his is the current view, with the caveat that the means of escape must be reasonable.

C&aytor et al. v. 1ondon #ew Aor/ and )aris/ 96)/ S+C+ 9Ne.fou#!a#!) C: 66

Facts: 9laintiff was comparison1shopping, a common practice. 9laintiffs were recogni(ed by the Defendant who loudly accused them of spying and called police. *hey were detained in the store. *here was no touching of the plaintiffs. *here was another eAit from the store&which wasn$t known by the plaintiffs'.

Ratio: 9sychological imprisonment is the imprisonment that takes place in oneUs mind. Does not have to be physical, can restrainwithout touching and it will amount to false imprisonment. 0ven though there was an eAertion of authority. 0ven though there was theappearance of consent it did not eAist in fact.CLASS:

3ourt would have given more money if their reputation had been ruined.

"alse imprisonment can be by agreement.

Don$t need knowledge that you are being imprisoned.

Runser v. 9oug&l @;8 "alse imprisonment in helicopter. ;1C days of upset. No physical damages. 4ggravated damages are

compensatory. 9unitive damages are to punish &[L,MM'.

"alse imprisonment only lasts until your bailment hearing. *he minute you go before the justice # you are lawfully imprisoned.*herefore )ilgaard can$t get damages for false imprisonment.


50/79

t is an intentional tort where both the actual conduct and the mental state of the alleged tortfeasor must be eAamined.;. Did ennings hold some public office or statutory authority that he eAercised improperly

o ennings was a peace officer and member of :3)9. *he duties of such officers are outlined broadly in 9art of the

:oyal 3anadian )ounted 9olice 4ct. 4t the very least ennings acted improperly when he released the informationabout the search before the warrant had been eAecuted and before the :eturn to the udge had been eAecuted orfiled. 4s a result, he violated the 3ode and breached the :3)9 4ct. *his review of the :3)9 4ct, of the

obligations contained in the search provisions of the 3ode and of the authorities satisfies me that at the timesrelevant hereto ennings held a public office7 he had statutory authority7 and the manner in which he conductedhimself amounts to a failure to carry out the duties attached to his public office and constitutes a breach of hisstatutory authority. *he manual is not a regulation or standing order with any attendant force of law. @y itself, itcannot be taken either as a definition of the standard of care re!uired or as a description of statutory authority.

@.


51/79

Tar-ete! Mai"e &:oncarelli v. Duplessis'8 targeting an individual, def knows he$s doing it, directed wrong doing &forthe purpose of causing harm' directly intending to bring about a non1benevolent conse!uence.

H#tar-ete! Mai"e8 ntentional act. No intention to bring about a harmful conse!uence but there isknowledge%awareness it is likely a negative conse!uence will result.

Re"


52/79

f you can impliedly consent to physical violation # what do you need to build the case /ow do you show QconsentR vs. Qjust

going alongR Signs indicated that she knew what was going on &and she could read and understand 0nglish. *he sign bringshome what was occurring.

*here are choices to be made and conse!uences for those choices. *here was communication in the meantime and no objections

and a tendering of her arm &eAact re!uirement of what was needed'. 3onduct is e!uivocal, difficult evidence. She could arguecoercion. You need to look at the conteAt to tip the balance.

#orberg v. 3ynrib/ 91)/ S+C+C+ C 03

Facts: N became addicted to painkillers. She began seeing < and began obtaining prescriptions for painkillers from him. <confronted her about the addiction. < then offered pills for seA. She returned when desperate. N sought damages for seAual assault, negligence, and breach of fiduciary duty and breach of contract. At tria: N admitted <

never used physical force and she played on fact that he liked her. 3ourt found consent. 4ppeal dismissed. S33 allowed NUsappeal, decision solely on the basis of seAual assault.

Issue:


53/79

"ound general rules governing $attery applicable to doctor1patient relationship. 4ny intentional, nonconsensual touching harmful

or offensive to a personUs reasonable sense of dignity is actionable, unless the person chooses to waive this protection and consentto intentional invasion of this interest.

Issue: Did the 9laintiff consent to the surgery N Holding: 3oncluded facts did not constitute an Qemergency situationR eAception. )Us decision to refuse blood was communicated to Sthrough the < card &valid restriction on emergency treatment to be provided to her'. No reason on evidence not to regard card as a

valid directive, so S was liable for battery. Ratio: *he general rules governing $attery are applicable to a doctor1patient relationship.

9rivacy gives people the right to determine their treatment in cases of emergency treatment.

o 4ny intentional, nonconsensual touching harmful % offensive to a personUs reasonable sense of dignity is actionable,

unless they chooses to waive this protection and consent to intentional invasion of this interest.o 4 doctor a liable if he proceeds in the face of a decision to reject treatment notwithstanding his justifiable belief that

it was necessary to preserve the patient$s life. < card = consent &or refusal' to treatment.


54/79

Some cases create a legal obligation to withdraw.Self1defence is a complete defence as in criminal law.3ases will distinguish between provocation and responding or defending. f it is revenge then it$s not self1defence. n relation to

damages some have argued that provocation will reduce damages. Some say that it can only reduce punitive damages and somesay even compensatory damages.

)ust be proved by defendant on balance of probabilities.

Defe#"e of others8 3ourts tend to eAercise caution with this defence.


55/79

"orce not reasonable in circumstances where device cannot discern between trespasser and non1trespasser &nefarious vs non1nefarious'.

4+ Ne"essity


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20* would not be liable for the damage where life or property was menaced by any object or thing belonging to the dock owner,

the destruction of which became necessary to prevent the threatened disaster. Not a case where an act of ?od%u#a*oi!a$ea""i!e#t the injury was beyond def$s control.

Ratio:


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No evidence that alternate methods of apprehension would minimi(e risk of injury.

Ratio:

nce the plaintiff establishes a prima facie case of assault, the onus of proving justification for the assault and the use of force

which is not eAcessive, rests on the defence. *o come within s.- the defence &officers' must show that8

+. he acted on reasonable grounds

-. the force used was necessary for the purpose"orce used was reasonable in these circumstances and the officer had a duty to apprehend.

Torts Mini CANS Winter Term 2004


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Torts Mini-CANS - Winter Term 2004

Proximate Cause – “Remoteness”General Principles

Case Brief Issue and Reasons Comments/RatioThe Rule

Wagon

Mound 1(1961) PC

oat negligentl!dumped a largeamount o" oil

o#er$oard – %or&ing%elding on doc& –"oreman stopped %or& and t'en proceededagain a"ter deeming itsa"e – a moulderingrag under t'e doc&ignited t'e oil and$urnt do%n t'e doc&

s t'e s'ip lia$le "or t'e damage*

+ Polemis, o#erruled in t'is case- allo%ed "ordirect conse.uences o" an action to $e t'e test "orremoteness+ eac' occurrence %as impro$a$le- and 'eapedimpro$a$ilit! on eac' ot'er- %as t'is a good test"or directness – $etter %it' reasona$le+ !ou must $e a$le to foresee a probable result

/02, 2oc& o%ner lost its claim "or damages$ased on t'e ruling t'at t'e 3re on t'e doc& %asnot a "oreseea$le conse.uence o" t'e negligent oilspilling

4est, 2 is lia$le onl! "ordamage t'at %as a"oreseea$le conse.uence o"

its negligent act

Kind of Harm

/ug'es #

ord 5d#ocate(196) /7

Wor&men lea#elig'ted lamps arounda man'ole co#er and

go on a $rea&C'ildren snea& in to'ole- and %'enlea#ing- oneaccidentall! &ic&s alamp into 'ole- itexplodes- 'e "alls inand is $urned in t'eprocess

5re t'e %or&men lia$le "or t'e in8ur! to t'e c'ild*

+ argued t'at t'e t!pe o" damage recei#ed $! t'e

appellant %as not a$le to $e "oreseen – “t'eexplosion %as t'e real cause and %'ile t'edanger o" someone "alling in %as "oreseea$le- it%as not”+ t'e accident %as caused $! a known source o"danger- in a way that was not foreseeable – t'isis not a de"ence- and satis3es t'e re.uirement "orremoteness

/02, 4'e %or&men are lia$le (cit!) "or t'ein8ur!

4est, " a &ind o" 'arm is"oreseea$le- t'en it is notremote ou are not

re.uired to "oresee t'emec'anics o" t'e 'arm

Real Risk ofDamae

WagonMound :(1966) PC

;ame case as $e"ore$ut o%ners o" a s'ipin t'e 'ar$our t'at$urned do%n are no%see&ing damages

s t'e s'ip lia$le "or t'e damage to t'e ot'ers'ip*

+ trial 8udge "ound t'e lig'ting o" t'e "uel %asun"oreseea$le+ in 3rst case- t'e doc& %as un%illing to pus' "or

foreseeability $ecause t'e! mig't $e "oundlia$le under contri$utor! neg+ "acts point to c'ie" engineer &no%ing it %as apossibility versus a probability + a reasona$le man %ould %eig't t'e ris& againstt'e dis must $e lia$le”

!inkae ?ailure to start

sno%mo$ile properl!

+ a series o" e#ents lead to a damage not too

remote

4est, n a series o" e#ents-

i" !ou can lin& t'em $!

5ssini$oine caused 3re t'roug' "orseea$ilit! t'ere is an


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5ssini$oine;out' ;c'ool2i# # GreaterWinnipegGas

caused 3re t'roug'series o" e#ents

"orseea$ilit!- t'ere is anargument t'e 'arms arenot remote

"lasti#it$ of%orseea&ilit$

4re#ison #;pringman

Parent negligentl! lets'er son steal 'er &e!s– 'e is &no%n to steal

4'is time 'e steals and $urns t'e 'ouse do%n?orseea$ilit! ma! $e argued "or stealing- $ut not"or t'e $urning do%n

@ueries, s "orseea$ilit!relati#e*s t'e scope o" "orseea$ilit!a #alue 8udgement*

Retreat "rom Wagon Mound (Ao 1)The Thin-Skull'lainti(

;mit' #eec' rainCo(196:) @

5 piece o" moltenmetal $urned t'e lipo" P>s 'us$and /edied o" cancer due tot'e $urn

“Retreat "rom Wagon Mound 1”Was t'e compan! lia$le "or P>s 'us$and deat'*

+ thin skull rule) a tortfeasor takes his *i#timas he +nds him+ it is no ans%er 'e %ould 'a#e sus neg – !es – t'isties to t'e .uestion o" remoteness $elo%s t'is too remote "or damages*

4est, 5 secon# in$urythat was cause# by the

%rst in$ury can be linke#

Weiland # result o" 'er in8ur! + it does not depend on t'e "orseea$ilit! test "rom to t'e original cause o"


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Weiland #C!ril ordCarpets td(1969)@- 5ll 0R

result o" 'er in8ur!-s'e needed to %ear acollar- %'ic' made itimpossi$le to ad8ust'er $i"ocals 2ue tot'is- s'e "ell do%n astair and 'urt 'eran&les ;'e isincluding t'is in8ur! in

t'e compensationclaim

p !Wagon Mound + i" t'is in8ur! as a$ilit! to cope%it' li"e>s acts – t'en t'is is sus 'ad duties and %ere negligent – t'eAegligence 5ct applies and apportions damages$et%een $ot' 2>s – e.uall! in t'is case+ in old cases- i" t'e intermediate inspection could$e seen as t'e proximate cause- t'e inspectionma! relie#e t'e original 2 "rom lia$ilit!

4est, W'ere t'ere areduties on t%o or moreparties and negligence $!eac' causing orcontri$uting to t'e cause o"

damage – t'e Aegligence 5ct is applied and notremoteness

!earned,ntermediar$

/ollis # 2o%Corning Corp(199) ;CC

Ms /ollis recei#es a$reast implant in19H n 19Hdisco#ers a lump anda rupture t'at is

corrected $! later

+ learned intermediar! – manu"acturer o%es dut!to consumer – t'ere is a dut! to %arn o" an! ris&s+ 0IC0P4 – %'en %arning is posted $! learnedintermediar! – t'e! %ill satis"! t'eir standard o"care+ 'ere 22C did not tell t'e doctor a$out t'e ris&sassociated %it' t'e implants

4est, 'earne# nter&e#iary 5 manu"acturer can "ul3llits dut! o" passing%arnings to ultimate

consumers t'roug' a

surger! 2o% + t'e issue t'at arises 'ere is t'at o" a “learned learned intermediar!


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surger! 2o%manu"actured t'eimplants and ga#einade.uate %arningsto 2r irc' regardingt'e implants ot'are sued- along %it' at'ird doctor

intermediar!”+ t'e general rule is t'at a manu"acturer 'as ageneral dut! to %arn consumers o" an! in'erentris&s %it' a product+ an exception to t'is is t'e “learned intermediar!rule” – it is applica$le %'ere (1) a product is'ig'l! tec'nical and onl! to $e used in expertsuper#ision (:) nature o" t'e product is suc' t'att'e consumer %ill not realisticall! get t'e direct%arning+ t'e manu"acturer can onl! disc'arge 'is dut! i"t'e 'as &no%ledge %'ic' approximates t'at o"t'e manu"acturer+ $reast implants are "ound to appl! under t'isrule and 2r irc' %as t'e learned intermediar! –'e %as not properl! in"ormed+ a de"ence t'at t'e 2r ne#er %ould 'a#e passedt'e in"o on to t'e patient e#en i" told cannot $eused

learned intermediar!4'is applies %'en aproduct is too tec'nical ordirect %arning is not li&el!to occur $e"ore use o" t'eproduct

Res#ue

/orsel! #Macaren(19:) ;CC

Macaren (2) %'o%as o%ner o" t'e$oat- $ac&ed t'e $oatup in an attemptedrescue o" Matt'e%s

4'is %as not properrescue procedure –$o% 3rst is 4'e"ailed rescue attemptinduced /orsel! todi#e in to rescue/orsel! died "rom t'es'oc& o" t'e cold%ater – 'eart attac&Matt'e%s died and%as not grantedcompensation on

Matt'e%s allegednegligence – no causalrelations'ip $et%een'is deat' andMacaren>s conduct/orsle! succeeded attrial $ut %aso#erturned on appealand at ;CC

Ma8orit!+ i" a person $! 'is "ault creates a situation o"peril- 'e must ans%er "or it to an! person %'oattempts to rescue t'e person %'o is in danger(ord 2enning .uote in case – p 6)+ an! dut! "rom Macaren to /orsle! must stem

"rom a ne% situation o" peril caused $!Macaren>s negligence+ no causal issues "rom t'e alco'ol+ t'e “$ac&ing o" t'e $oat” %as seen as a mereerror in 8udgement and not a negligent act+ appeal dismissed as 'is act did not $reac' t'estandard o" care

4est, " a person $! 'is"ault creates a situation o"peril- 'e must ans%er "or itto an! person %'o attemptsto rescue t'e person in

danger

Case Stud$).o*ernment!ia&ilit$ - A#t

5ct allo%s t'e Cro%nto $e sued as anindi#idual in tort

Go#ernmental negligence 5 7ld la% – Cro%n %as immune Proceedings against t'e Cro%n 5ct – s (1),su$8ect to all tort lia$ilit! as i" an indi#idual+ under t'e common la% – emplo!ees action on

Purpose, Re#erses old la%o" “&ing can do no %rong” –su$8ects t'e Cro%n to a tort

as i" it %ere a person

Proceedings $e'al" o" t'e Cro%n are immune – Cro%n is


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oceed gs 5gainst t'eCro%n 5ct(5l$erta)

su$8ect to tort la% as i" it %ere a person under t'ene% statute+ statuator! interpretation – Ri==o – 2riedger –interpret $! reading entire 5ct- loo& at entirecontext- plain meaning- purpose- and intention o"parliament

2eacoc& # 5l$erta(:JJJ) 5lta

C5

Flein and t'e Ministero" /ealt' %ere namedin a suit and t'e!

%ere remo#ed $! trialcourt – t'e appeal %asto reinstate t'eirname on t'e suit

– Flein named in a ci#il action– claimed t'at it %as inappropriate to name 'im– court uses t'e concept o" stri&ing t'e name– an os tort is 3rst and "oremost a pri#ate-personal %rong and t'e person can $e sued as anindi#idual+ lia$ilit! o" t'e go#t comes t'roug' t'e acts o"t'e indi#idual+ is t'e Premier a sua$le entit!* – does t'is personactuall! 'a#e standing to sue (%'o is suing) andt'e person $eing sued a sua$le entit!* 4'ePremier is a creature o" con#ention and not la% orstatute – t'e courts and leg>s 'a#e nottrans"ormed t'is entit! into la%+ is t'e Minister o" /ealt' a legal entit!* – !es –recogni=ed o" la%

Ratio, t is permissi$le tosue pu$lic ot

+ does go#>t o%e a dut! o" care to a motorist*+ trial+ neg in pre#enting ice "ormation- $ut immune dueto polic!

+ decision o" 'a#ing t'e emplo!ee on call- also

Kust is applied, not 'a#ingt'e p'one o" t'eemplo!ee is an operational

issue so dut! o" care arises-

ta&en seen as polic! $eing on summer sc'edule


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/eld, 2ut! existed ont'e operational issueo" no p'one num$er

+ lengt' o" time to sand t'e road a"ter accidents-not negligent- $ut again polic!+ contact missing "or emplo!ee>s 'ome %asnegligent and %as operational – in t'e end- nocausation %as s'o%n $et%een t'is and t'eaccident so no lia$ilit! "ound+ ro%n, sa!s polic! i" patentl! un"air can $e dut!

gdue to $udget is a polic!issue and no dut! existsNltimatel! no lia$ilit! "orlac& o" causation

ngles #4ut&alu&Construction

(:JJJ) ;CC

5pppelant 'ired acontractor to reno#atet'e $asement – %as

con#inced no permitneeded –underpinnings %eredone improperl! – cit!later inspected $utunderpinnings %ereco#ered and inspector%ent on contractor>s%ord

/eld, mproperinspection isoperational and cit!%as "ound partl! at"ault

+ Oooding later caused damage to t'e propert! in.uestion+ polic! %as t'e inspection regime+ operational %as t'e actual acts o" t'e inspectorin t'e course o" 'is 8o$+ issue o" 5 deciding against permit %as a $ar to"ull reco#er! and added in contri$utor!negligence

Kust is applied, t'e "ault!inspection %as operationaland a dut! %as "ound- and

ultimatel! some lia$ilit!%as "ound

ConstitutionalTorts

Kane 2oe #oard o"PoliceCommissioners(199H) 7C o"

Kustice

5 %oman %as raped$! &ni"e+point in 'erapartment 4'e police&ne% o" t'e dangers'e "aced in 'erspeci3cneig'$our'ood

+ t'ere %as a statutor! dut! under t'e Police 5ctand a common la% dut! to protect+ t'e issues (1) s'e %as not %arned (:) ina$sence o" t'is- %as not protected+ test, police %ere a%are o" a speci3c t'reat anddid not'ing to %arn t'em – t'e! 'ad a dut! to dot'is – $ut $ecause o" a stereot!pical $elie" t'at%omen %ould get '!sterical – t'e! did not+ on negligence and $ased on C'arter #iolations –t'e P is a%areded negligence

/ill case, police did not o%e a dut! o" care –insu


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p pa Was t'ere reliance*$ Was t'e reliance reasona$le*c Was t'e reliance "oreseea$le*

c) :nd part o" Famloops (polic! reasons)(:) ;tandard o" care

a) Representation untrue- inaccurate- misleading$) Representation negligentl! made

() Represent(ee) relied on misrep to 'is detriment

(L) 0conomic loss results() Ao $ars to reco#er! li&e a disclaimer

?actors to consider,+ &no%ledge o" rep(tor)+ seriousness o" occasion+ in"o pro#ided to intial re.uest+ 3nancial interest in pro#iding in"o+ nature o" stmt – "orecasts* ;peculati#e*+ 2isclaimers

Polic! reasons against economic loss,

+ less %ort'! o" compensation t'an in8ur!+ indeterminate lia$ilit!+ $urden s'ould $e on t'e #ictim ($u!er $e%are)+ multiplicit!

/edle! !rne B Co #/eller B Partners(196L) /

Credit o"0asipo%er is #ouc'ed"or $utt'en t'e!go$an&rupt

+ no reliance $et%een spea&er andlistener $ecause t'e in.uir! %as made"or pri#ate use+ can $e lia$ilit! i",(1) dut! – special rel – &no%s&ills8udgement is trusted or relied(:) neg in stmt at time it is made() reliance – reasona$le – social or$usiness* 4!pe o" people*(L) actual loss – $! reliance – s'o% di<result "or di< in"o

Aegligent misstatement is reco#era$le in tortla%

?letc'er # Manito$aPu$lic ns Corp(199J) ;CC

5s&ed "ormaxinsurancein autopolic! –$ut notgi#enuninsuredmotoristco#erageAot tolda$out it

5ccident

2id 2 'a#e a dut! to tell P o" all t'eoptions*+ dut! o" care arises %'en someone %it'a special s&ill underta&es to appl! t'ats&ill "or t'e assistance o" anot'er+ silence can amount to negligence+ 'ig'er dut! o" care in pri#ate compan!

" a special relations'ip and dut! exists –silence can amount to a negligentmisstatement

occurs


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%it'uninsuredmotoristand P%as notco#ered;uedinsurance

compan!@ueen # Cognos(199) ;CC

Ko$inter#ie%misstatement –position%asterminated muc'soonert'anpromised

Was t'ere a negligent misstatementcouple %it' detrimental reliance*+ t'e mgr &ne% t'e appellant %ouldreasona$l! rel! on t'e in"o in lea#ing 'is

8o$ and mo#ing and made careless rep>s+ special rel includes 3duciar!+ not enoug' to $e 'onest- must usereasona$le care in statements

W'ere s'ould %e consider t'ese in t'e test*+ nature o" t'e occasion+ purpose o" statement+ "oreseea$le use o" stmt+ pro$a$le damage o" error+ status o" ad#isor+ le#el o" competence

/ercules Mgmt # 0rnstB oung(199) ;CC

P %eres'are'olders %'orelied onauditedstatements $! 2>saccountants

s t'ere a dut! o%ed* Ao – "or polic!reasons+ 5nns test used+ special rel constitutes "orseea$ilit! o"reasona$le reliance test, !es t'is exists+ polic!, must &no% identit! o" P orlimited class or intended uses o" t'ein"ormation – indeterminate lia$ilit!polic!

;pecial relations'ip – "oreseea$le andreasona$le reliance

ndeterminate lia$ilit! polic! – 2 must &no%identit! o" P>s or o" t'e limited class orintended uses

G C'eco ntl # C/!dro(199) ;CC

Contractor %aspromised

t'e %a!%ascleared-$ut it %asnot- andneeded toclear'imsel" atcostsextra;ued

+ tort claims can exist out o" a contract+ anal!=e contract to see i" tort claims areexcluded

Claims in tort and contract can operateconcurrentl!

0conomic oss Caused $! Aegligent Per"ormance o" ;er#ices

4est 1 – dut! + assumption o" responsi$ilit! $! 2 in pro#iding a ser#ice (Famloops)

: – t'ere must $e "oreseea$le reliance


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– negligenceL – causation – damageW'! are t'ese elements di


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7t'er, Wrong"ul irt' – /o% do !ou approac' t'is* 5 Prenatal n8uries

Aotes 1) 5n un$orn in"ant 'as no tort rig'ts a#aila$le:) 7nce $orn- an! in8uries sut $e decisi#e– $ut relational is &e!

Qane& #Great

5tlantic

Fid 'ad a rotten 8uice – no p'!sical

'arm Parents

Parents did not %itness e#ent0#ent %as ruled not traumaticP must su


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s'oc&

4'e Rele#ance o" a Plaintis ConductContri$utor! Aegligence

Case Facts Discussion Ratio.eneral

Contri$utor! Aegligence 5ctR;7 199J – H6R;5 19HJ – ;1

Re#ie% o" act and loo&at last c'ance doctrine

s(1)+ t'e court s'all determine to %'at eac'person is at "ault

+ t'e use o" t'e %ords “"ault or negligence”'as $een interpreted to appl! to intentionaltorts and e#en $reac'es o" contract cases(9)+ “8ointl! and se#erall! lia$le” "or $ot' partiesin#ol#ed

5l$erta s 6 and s+ last clear c'ance doctrine %as still includedand gi#en to discretion o" t'e 8udge – no% in:JJJ out o" t'e 5ct

%ault in#ludes nelien#eand #an in#lude

intentional torts or$reac'es o" contract

utter3eld # ?orrester(1HJ9) F

Man "alls o#er pole %it''is 'orse t %asclaimed t'at in additionto t'e man la!ing t'e

pole $eing negligent-t'e rider %as negligent"or riding too "ast andnot a#oiding t'e pole

/eld, P %as at "ault "orcareless riding despite2>s negligence

+ 4'e de"ence o" contri$utor! negligence %asa complete de"ence in t'is case+ Called t'e stalemate rule – $ot' %erenegligent and no %a! to proceed "or P+ rationale "or t'is

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