Tort Law

MORE ON DAMAGES
Pecuniary: monetary damages which can be quantified/ can be special or general
General heads of Damages include:
1. physical injury itself, including pain and suffering at the time of trial
2. disability and loss of amenities before trial
3. loss of earning before trial
4. expenses incurred before trial
5. pain and suffering expected to be suffered after trial
6. loss of amenities after trial
7. loss of life expectancy
8. loss of earnings to be suffered after the trial
9. cost of future care and other expenses

NonPecuniary Damages Include
1.pain and suffering
2. loss of amenities
3. loss of expectaion of life
- in general cts are inclined to provide injured person w/ “reasonable solace for his/her misfortunes” but this should not be excessive , base figure= $100 000 (Andrews )

* possible to recive single lump sum payment which is not taxable, although income it generates is (this factor must be considereed in asseing damage award)

Andrews:
in assessing cost of future care ct looks at:
i) style and standard of care
ii) life expectancy
iii) contingencies and hazards of life
iv) cost of special equip.
in assessing loss of future earnings ct looks at:
i)level of earnings at time of accident
ii) length of working life (assume will work to 55)
iii)contingencies
iv) assess needs of P in post accident injured state
*remember you are assesing capacity, whcih is potential earnings, keep this distinct from     actual earnings

-accidnet victims have other sources of compensation in add’n to the tortfeasor such as OHIP, Cda Pension, Workmans Comp. and private insurance. 3 ways of dealing w/ this
1. accumulation: allows injured person to keep collateral source funds and collect from                 wrongdoer as well
2. subrogation: provides for the reimbursement of teh collateral funds by the wrongdoer                   - P would recive one payment w/ tortfeasor paying back the fund, or
3 set off or deduction: collateral payment is deducted from what the D has to pay - to                         advantage of the D as it denies P the benifits of his own insurance
- most widely used by courts is subrogation

THE USE OF STATUTES IN COMMON LAW NEGLIGENCE
R v Saskatchewan Wheat Pool (1983 SCC)- grain supplied to SWP was infested w/ rusty beetle making grain unmarketable, and casuing substanital losses to farmers who attemptes to sue SWP for neg’ce - the statute included regulatory provisions for the quality of grain, imposing fines for contamination, but was silent about civil liablty-could a tort in neg;ce be implied?-
England- recognises tort of statutory breach if the following can be shown: breach of statute; resulting damages- should ask: was statute created to protect individuals (gives rise ot a tort duty) or the public at large (no tort duty)
America-breach of staue is neg;ce so burden will shift back to D; can substitute statutory standard for reasonable person in standard neg;ce
Canada-breach of staute is evidence of neg’ce, but in this case, b/c bad grain is hard to identify, may not be laible but are still statutorialy liable EXCEPTION: where there is no duty of care at common law, a breach of nonindustrial penal legislation should not affect civil liability unless statute provides for it.

Summary:
1) Civil consequences for violating statues should be subsumed in the law of neg’ce
2) Reject the notion of  a nominate tort of statutory breach
3) Proof of a statutory breach can be evidence of negligence
4) Statutory formulation of duty = useful standard of reasonable conduct

3. THE RELATIONSHIP BETWEEN COMMON LAW AND STATUTORY      CAUSES OF ACTION
Bux v Slough Metals Ltd. (1974 CA)- - there was a statutory duty to provide worker with goggles that would have prevented the accident
-a statutory duty will not abrogate, supercede, define, or measure a common law duty
- a statutory duty will not eliminate the need for cts to decide whether or not the employer took reasonable care
- must do more than supply goggles as per statue, must also encourage workers to wear them
- where common law and statutory standards differ, must meet the highest one
4. A NOTE ON THE CHARTER
- remedies under 24(1)= express statutory action

XV RECOVERY OF PURE ECONOMIC LOSS IN NEGLIGENCE
Hedley Byrne v Heller (1964 HL)- pure economic loss can be recoverable when they are a direct and forseeable result of of the Ps reliance on a negligent misrep. by the D.
Kamploops v Nielson (1990 SCC)- P can recover for pure economic loss from a public authority
BDC Ltd. v Hofstrand Farms Lts. (1986 SCC)- providers of commercial services can be held liable for the pure economic losses of those within sufficient legal proximity - assesment of proximity will be based upon knowledge and reliance
1. Product Quality Claims
Rivtow Marine v Washington Iron Works (1974 SCC) - leading case on recovery of economic losses suffered by nonprivity user of defective products - no need for actual damage befroe liabilty will be imposed¬ - manuf. and distributor w/held knowledge of risk, also knew dates of peak season for buisness, exposing P to risk of losing business -duty to warn commences at earliest opp’ty
2. Relational Economic Loss
CNR V Norsk Pacific Steamship CO. (1992 SCC) -P was the principal user of a bridge that was damaged when the D’s barge collied with it thru neg’ce causing closure for several weeks - P suffered huge economic loss- was it recoverable? YES by adopting the Anns test and principles of Kamploops necessary duty and proximity were est. and valid purposes were served in permitting recovery
Winnipeg Condominium Corp v Bird Cnstruction (1995 SCC)-  in the absence of a K’l reln’ship thrid party purchasers were able to recover costs of repair to defects in buiding that had been casued by builders negligence - forseeable that harm could occur b/c of defect.

3. Res Ipsa Loquitur “the thing that speaks for itself”
a) WHEN DOES RES IPSA LOQUITUR APPLY?
- a rule pertaining to circumstatnial evidence, from whcih an inference of neg;ce can     arise (takes you to the point of evidentiary burden)
- b/c it is based on circumstantial evidence, it cannot apply when there are multiple     tortfeasors
criteria for application of rule:
1. D must have sole (or at least effective) control over the thing causing harm
2. occurance would not normally happen w/o neg’ce (usually applies in product liabilty        cases)
3. there must be no evidence as to why or how hte harm occured

Kirk v McLaughlin COal (1968 ON CA)- furnace exploded two times shortly after being serviced, RIL held to apply b/c the D had sole control over the thermostat - noone else had serviced it

Clayton v JNZ Invt. Ltd. (1969 Ont CA)- burst pipe casued flooding. amd P assumed D would be resp for loss incurred- but RIL not applied b/c tere was no evidence as to whch party had casued hte harm- could have come from any number of parties

Tataryn v Co-Op Trust Co. (1975 Sask CA)- Cessna equipped w/ dual controls crashes kilong everyone on board, only pilot knew how to fly- deceased’s wife able to invoke RIL in absence of any evidence as to how or why the crash took place

b) THE PROCEDURAL EFFECTS OF RES IPSA LOQUITUR
McHugh v Reynolds (1974 ON CA) -  demonstrates how RIL shifts evidentiary burden back and forth btwn D & P -
1. P asserts calima gianst D- neg’t in munufacture of ladder - led to accident based on              appl’n of RIL
2. D calls evidence making inference of neg;ce plausible but improbable
3. RIL is rejected and onus shifts abck to P who must then prove neg;ce of D on bop

Rule: RIL doesn’t mean that there is a presumption of neg’ce, only that a prima facie case of neg;ce has been inferred
Holmes v Board of Hospital Trustees of London 1977 ONT HC)

XIV STATUTORY PROVISIONS AND TORT LIABILITY
2 ways to use statues in tort law:
1. to create an express statutory COA
2. may create an obligation or prohibit conduct in such a way that a common law duty        will flow, giving rise to an action in neg’ce
1. EXPRESS STATUTORY CAUSES OF ACTION
- examples found in Competition Act, and Trespass to Property Act
-Traschler v Halton (1955 ON HC) - P is suing municipailty for failing to keep roads in good repair, pursuant to Section 453(1) of The Municipal Act - in order to find municipality liable, must show that, mun. knew about the need and hadn’t acted, OR should’ve known and didn;t act - in response its open to the municiaplity to show that reasonable system was in place, and no other system would have resulted in quicker repair

3. Participation in a Criminal or Immoral Act
“Ex Turpi Causa Non Oritur Actio”
- cannot recover for injury sustained while involved in an illegal action - cannot recover for ones own wrongdoing
- protection of the integrity of the legal system
onus: on defendant to establish illegal/immoral conduct on part of P

Hall v Hebert (1993 SCC)- P is attmepting to sue D for letting him drive while drunk
Cory: tries to abolish ex turpi  saying 2nd branch of Anns test would negate duty (are            there any reasons to limit duty)
Majority (McLaughlin) disagrees: should be a defence to allow for flexibilty in application, and procedural pblms would arise form reversal of onus  - defence found not o apply to facts of this case - claim allowed, but limited by contrib neg;ce
4. Inevitable Accident
- defence is one of very narrow scope:
-onus: on defendant (evidentary)
-criteria (McIntosh v Bell)
1. no control
2. the occurance could not have been prevented w. the greatest of skill and care
Rintoul v Xray and Radium- in trying to raise defence, D was unable to meet the very narrow req’ts - demonstrates its narrow applic’n - evidence must be both clear and cogent
XIII PROOF OF NEGLIGENCE
1. The Burden of Proof in a Negligence Action
legal burden: must prove the issue bop
evidentiary: must adduce enough evidence to support position (usually carried by party w/ legal burden, so in civil suit thats the P)
1. P must est “prima facie” case of neg’ce - failure to adduce enough evidence will result      in a nonsuit
2. once prima facie case is est, (but note just b/c evidentiary burden is discharged, doesn’t mean that legal has) burden shifts to the D

Walker v London & South Western Ry Co. (1886 HL)- P was nonsuited when she was able to prove nthg more thatn that her husband had left for work saying he would take the footpath - although his body was found further down the Ry line, she had no means of knowing how the accident had occured
2. Exceptions to the General Principles Governing the Burden of Proof
a) STATUTES AND SHIFTING BURDENS OF PROOF
- statutes can work to reverse the burden of proof where its is impossible for P to know how accidnet occured
ex. Highway Traffic Act RSO 1970 c.202
s133 (1) where damage is sustained by any person by reason of a motor vehicle accident         on the highway, onus of proof that loss/damage did not arise thru neg’ce or            improper conduct of driver, rests with driver
(2)  sec does not apply where collision is btwn motor vehicles, btwn motor vehicles        and trains, nor to actions brought by a passenger in a motor vehicle in respect of        injuries sustained by him while a passenger

MacDonald v Woodward(1974 Ont CO Ct)- man boosting anothers car is run over by the one he is helping - P need only show that that accident occured on highway,a dn that injury was the result of collision (not result of drivers conduct)- burden then shifts to D to show that neg’ce was not a factor

AG ON v Keller (1978 ON CA)- s 133 held to apply to a police officer who was serously injured when his car went out of control and struck a pole during a high speed chase. Fleeing driver knew he was being pursued and was attempting to escape, but at no time did the 2 vehicles collide.
b) DIRECTLY CASUED INJURY: UNINTENDED TRESSPASS
Dahlberg v Naydiuk (1969 Man CA) - P who was on his own land, was shot by the stray bullet of a deer hunter- action frame din neg;ce and trespass
-if rely on neg’ce- onus rests on P to prove D was neg’t
- if rely on tresspass- D gets judgement only if he satisfies “onus of establishing absence of both intention and neg’ce” so  dos neg’ce in this def’n mean sthg giving rise to an aciton in neg’ce which would then shift burden to P?” -  where injury is direct burden to disprove neg’ce lies w/ D - who in this case failed to prove that he was not neg’t
c) MULTIPLE NEGLIGENT DEFENDANTS

Rule: where the Ps abilty to establish liabilty is destroyed, the burden to disprove neg’ce will rest with the D
Cook v Lewis(1951 SCC) - P hit when Ds fired simultaneously at diff;t biurds flying in direction of P

1. Contributory Negligence
a) CONDUCT CONSTITUTING THE DEFENCE

onus: on the defendant to prove that injured party did nto in his own interest take        reasonable care of himself and contrib to his own injury by want of this care

3 ways a P can be contrib neg’t
1) contribute to the accident
2) expose themselves to risk of accident
3) failure to take reasoanble precautions to minimise injury in the event of accident
* contrib neg’ce must be a cause of the loss in order for it to count against him - but for     the Ps own actions/ommissions the accident would not have happened - must also     count as proximate cause - injury must culminate from risk created by P

Walls v Mussens (1969 NB CA)- based on modified objective test “not whether the P exereciced a careful and prudent j’ment in doing what he did, but whether what he did was sthg that an ordinarily prudent man would have done under the stress of an emergency” found the P was not contrib neg;t for failing to use fire extinguisher to put out the fire in his shop stared by the D

Gagnon v Beaulieu (1977 BC SC)- established that b/c P knew or ought to have known that he should be wearing a seatbelt, P was held contrib neg’t for injuries sustained in motor vehicle accident - onus on D to show that the seatbelt was not worn, and if it was that it would have prevented injuries
b) APPORTIONMENT OF LOSS
Governed by Negligence Act RSO 1990 (text of act pg 457)
- amount of damages will be reudced in proportion to degree of Ps fault
-  where apportionment cannot be determined, parties will be deeemed equally at fault

Mortimer v Cameron (1994 SCC)- 2 guys engaged in horseplay on stairs fell and crashed through an improperly constructed wall-  one is injured to point of paralysation - Neither guy found neg’t b/c accident was beyon scope of risk created by horseplay, could not have contemplated that the wall would “pop out” - liabilty apportioned btwn the City and building owners for failing to properly inspect the wall and make sure it was up to standard

To do a Contribution Assesment:
1.a)assess whether D’s are liable to the P at all in neg’ce, then calculate the gross                 damages
b)assess the degree to which the P contributed to the loss
2.assess the D’s right to contribution

2. Voluntary Assumption of Risk “volenti non fit injuria”
- complete defence, but use has been limited in recent years owing to rise of contrib.     neg’ce usually limtied to narrow circ’s, esp. sports
Onus: must be pleaded and proven by the D
General Principle: a P who has expressly or impliedly assented ot an act cannot sue another for damages of injuries sustained - s/he must bear the loss w/o the help of the law
- the risk must be a freely encountered one
- where consenbt is expressly given, the ct must determine whether there was an actual or     manifested agreement to terms
- nthg short of an agreement to waive any claim for neg;ce will suffice (Lagasse v Rural     Municipality of Ritchie)
Test to establish defence:
1) Did the P clearly know and appreciate the nature and character of risk? and
2) Was this risk voluntarily incurred?

Dube v Labar (1986 SCC)-  defence of volenti in general will be inapplicable to the majority of drunk dirver willing passenger cases, b/c the defence requires ana warenessof circs and consequences of action that are rarely present on the facts of such cases at the relevant time

3. Intervening Causes

basic issue:is it fair to hold a neg’t actor liable when the conduct of others is also involved in bringing aboutt he accident?

3 catagories of intervening acts:
1. naturally occuring/nonculpable - do not break chain of causation
2. neg;t intervening acts- will break chain of casuation
3. illegal/ deliberately wrongful intervening acts- will break cahin of casuation unless               original tortfeasor had a specific duty to prevent the act

“within the scope of risk” test: were damages caused by the act within the scope of risk created by original tortgfeasor? OR was the intervening act withint he scope of risk? (Ist is more consistent with pinciples of recovery in tort)

General Rule for Novus Actus Interveniens: the person guilty of the original neg’ce will still be the effective cause if he ought reasonably to have anticipated such interventions (canphoto Ltd.et al v Aetna Roofing )

Bradford v Kanellos (1973 SCC)- there was a grease fire in a restaurant, and upon hearing the fire extinguisher a customer shouted “gas is escaping” casuign a stampede that injured the P. held restraunts neg’ce in allowing grease to buid up on the stove was not the proximate casue of the injuries - the hysterical patron was a novus actus interveniens. “was that consequence fairly w/n the risk created by the respondents neg’ce in permitting an undue quantity of grease to accumulate on the grill?”

Rule: it is reasonably forseeable that that a neg’t diagnosis by a first doctor will be relied upon by subsequent treating doctors
Price v Milawski (1977 Ont CA)- P broke his ankle , but emerg. physician ordered foot Xrays not ankle so extent of injury wasn;t uncovered - orthopoeadic surgeon then put ankle in a cast w/o ordering further Xrays that worsened damage - by time fracture was uncovered permanent damge was done. held- orthopoaedic surgeon not found to be a novus actus interviniens both doctords heldjoint and severally laible

Some general principles:
Papp v Leclerc (1977 CA)- “every tortfeasor causing injury to another person placing him in the position of seeking medical or hospital help, must assume the inherent risks of complicatoins, bona fide medical error or misadventure, if they are reasonably forseeable or not too remote… It is for the D to prove that some new act rendering another person liable has broken the chain of casuation.”

- an original tortrfeasor will be absolved of liabilty for injuries sustained by the P during recuperation, if the P was contributorily neg’t, but if there is no contrib neg’ce there will be liabilty

Rule: where the actions of a third party are reasonably forseeable and therefore preventable, the actions of that party will not be considered novus actus interviniens
Hewson v Red Deer (1976 Alta. TD)- city found liable when after leaving tractor door open with keys in ignition, a youth climbed in caused the tractor to be set in motion, resulting in it rolling down a hill and into a house - held that this could have been easily prevented by taking certain precautions (ie not leaving keys in ignition)

XII DEFENCES TO NEGLIGENCE LIABILITY
There are 5 defences to neg’ce, but they will not begin to operate until the P has proven all elements.
1) Limition Periods
2) Voluntary Ass’n of Risk (limited in applic’n but a full defence)
3) Ex Turpi Causa non oritur acta ( limted in applic’n but a full defence)
4) Contributory Neg’ce (partial defence only..watch for statutory lim’ns)
5) Inevitable Accident (not recog. by all academics, often taken as a consequence of    neg’ce Rintout v Xray)

XI REMOTENESS OF DAMAGE
- concern is with the realtionsip btwn the D’s neg’t act and the specific damages sought by the P
1. Directness Versus Foreseeability
a) THE DIRECTNESS TEST
- if it can be found that the D’s act was neg’t. s/he will be held liable for all damages flowing as a direct consequence of that breach. (Re Polemis and Furness, Withy & CO. 1921 KB) -
- test has since been rejected as unfair, illogical, unworkable, too propolaintiff anf theoretically unsound - fails to relate teh degree of defendants fault to the extent of his liabilty
b) THE FORSEEABILTY TEST
Wagon Mound No. 1 (1961 PC)- oil flowing into Sydney Harbour causes a massive fire, owners knew oil has spilled but didn’t do anythingabout it - rejection of Polemis test, liability for a consequence will be imposed where that consequence is reasonably forseeable, natural, or necessary or probable
2. Modifications to the Forseeability Test
a) THE KIND OF INJURY

Rule: it is only necessary that a kind/type of injury is forseeable, do not have to forsee the full extent of the njury or the manner in which it occured to recover damages
Hughes v Lord Advocate (163 HL)- liablitly found for workmen who left an openmanhole surrouned by burning oil lamps unattended - one lamp fell in, exploded casuing boy passing by to fall in and be burned - held that even though nature of accident was unforseeable, forseeable that someone could be burned by unattended lamps
b) THE THIN SKULLED PLAINTIFF RULE
Rule: take you victim as you find him, to incur liabilty need only forsee intial harm done, not consequences that flow as aresult of Ps “thin skull”
Smith v Leech Brain & Co. (1962 QB)- D found libale for full extent of damages claimed by P wich flowed from his cancer, the development of which was promoted as a consequence of a burn (which was reasonably foseeable)to the lip where there was an already existing premalignant growth “the test is not whether these employers could reasonably have forseen that a burn would casue cancer and that he would die. The ques’m is whether these employers could reasonbly forsee the type of injury he suffered, anmely, the burn. What, in the particular case, is the amount of damages whihc he suffers as a result fo the burn, depends upon the characteristics and conditions of the vicitm”
Marconato v Franklin (1974 BC SC)- damages awarded to a woman who underwent a sever ppersonality change as a result of minor injuries sustained in a motor vehicle accident. Although this was highly unusual and not forseebale, it was a result of her physical makeup.
*note: do not confuse this with the negligent infliction of nervouse shock - liabilty for that is assesed under special duty of care principles!
THE POSSIBILTY OF INJURY

Rule: if it is clear that a reasonable man would have reaslixed or forseen and prevented the risk defendant will be liable for damages
Wagon Mound No. 2 - D held liable for damage to small boats even though risk was small a prudent engineer would have forseen it.

Rule: Liabilty will flow if one can forsee the consequences of an action in a general way. The extent of the damage and its manner of incidence need not be forseeable if physical damage of the kind which in fact ensues is forseeable
Assinaboine V Winnipeg Gas (1971 Man CA) - toboggan struck a gas riser causeing an explosion- foiund laibilty where damages arising from impact of tobboggan were forseen even though the damages of the fire were not.

2. Independant Tortfeasors and Multiple Causes

2 types of injury:
1. divisible: can be divided into distinct losses, and each loss can be attributed to a                   particular tortfeasor, giving P separate COAs against each of them
2. indivisible: each tortfeasor is held jointly and severally liable for all of the Ps losses,         regardless of whether s/he was a major or minor contributor

Lambton v Mellish (1894 3 ch163)- 2 refreshment vendors with organs producing noise, nearby homeowner alleges nuicance- noise made by each organ alone is a nuicance, so hold each liable separately

Arneil v Paterson (1931 HL)- 2 dogs attacked a flock of sheep, each dog is responsible for 100% of damage caused - impossible to apportion hrm btwn owners, therfore hold them joint a severally liable- D can collect entire judgement form either of them ( Neg’ce Act contains provisions allowing 1 tortfeasor to claim from the other)

Principle: “where there are concurrent torts, breaches of K, or a breach of K and a concurrent tort both contributing to the same damage, whether or not the damage would have occured in the absence of either cause, the liabilty is a joint and several liabilty and either party causing or contributing to the damage is libale for the whole damge to the perosn aggreived” Thompson v London County Council

Nowlan v Brunswick Const. Ltee. (1972 NB CA) - rot leak in the structure of a newly built house b/c of defect in architects design, and poor workmanship and inferior materials supplied by D - harm was considered indivisible, held severally liable to the owners of the building and jointly liable to each other
3. Joint Tortfeasors
- joint tortfeasors are held jointly and severally libale for torts committed by fellow     tortfeasors, even if they have not casued or contributed to the Ps loss in any way -
- legal liabilty stems from tortfeasors relationship with each other, not from playing a     causal role in the Ps loss
- relationship will be such that each is responsible for the actions of the other (?)

Cook v Lewis (1951 SCC)- P shot and injured by one of two hunters but its impossible to say which one- b/c defendants were engaged in a lawful pursuit w/ no reason to believe that the other would act negligently, and b/c neither had the right nor the oppty to control the other cannot be held as joint tortfeasors (catagory definable by relationship not cause)

- a realtionship of joint tortfeasors will often be found where, damage is casued by the pursuit of a common wrongful intention Newcastle(town) v Mattatall (1987 NBQB)

4. Problems in Evaluating the Plaintiffs Loss
a) DEVALUING THE PLAINTIFFS LOSS
Dillon v Twin State Gas and Electric Co (1932 New Hampshire SC)- deceased D was leaning over girder of bridge and fell, grabbed exposed wires and just prior to plunging to his death was elctrocuted- what is the measure of damages considering that he was bound to die as a result of the fall, the only effect of the electrocution was to decrease his life span by a few short seconds- unless it can be found that but for the current he would have fallen and suffered serious injury (in whcih case he would be entitled to the differcne btwn lost earnings of invalid and a corpse) as opposed to death there will be no award of damages, as there will be no finding of negligence

b) SUCCESSIVE INJURIES PRIOR TO TRIAL
Rule: people are compensated for loss sufferd, not physical injury, therefore if a later injury reduces disabilities from the first injury, it shortens the period for which the D must pay damages
Penner v Mitchell - P was awarded 13 months salary for an injury, but it was later uncovered that she would not have been able to work for three of those months due to a preexisting heart condition - D therefore did not have to pay for those 3 months

- in assesing damages in cases of successive injuries use the proximate casue test of reasonable forseeability of harm -
- if both injuries are culpable- there will be apportionment of liabilty
- if one injury is culpable and the other innocent - damages awarded for culpable harm will be reduced by impact of innocently casued damage (i think?)]

4. An Economic Analysis of the Standard of Care
- Hands Theorem: jury should attmept to measure three things: the magnitude of loss if an accident occurs, the probability of the accident occuring; and the burden of taking precautions that would avert it. If the product of th first two terms exceeds the burden of precautions, the failure to take those precautions is negligence.
5. Special Standards of Care
a) THE DISABLED

general principle: must be a capacity to understand nature of duty owed in order to be held liable - in order to be released from liabilty inabilty to understaind and appreciate must be due to disabilty

Buckley and TTC v Smith TPT Ltd [1946] - syphillitic truck drivver goes insane w/o warning and crashes into transport unit
test: not whether delusion existed, but whether delusion prevented D from understanding and appreciating duty which he was under

- note: physically handicapped are required to meet the standard of care of a reasonable person with a similar handicap

- what happens when nature of duty is understood, but but there is an inablity to act (ex undergoing an epileptic seizure)
b) CHILDREN

general principle: standard of care of child of like age, intelligence, and experience, however much heed is paid to peculiarities of childs experience

Joyal v Barsby (1965) - 6 year old runs onto busy road and is struck by semi- issue at appeal was child contributorily neg’t in stepping onto busyt highway?
- child 40% c.neg’t : trained in highway safety and had she looked wouldn’t have stepped onto road

- a child involved in a normally adult activity such as driving a car, hunting, or snowmobiling will be required to meet the standard of care excpected of a reasonable adult Ryan v Hicksson (1974) - waving snowmobile kids who got air

- a parent, guardsian or other supervisor will not be held vicariously liable when child commits a tort, but will be held liable if they have failed to control ormointor childs conduct - held to standard of reasonably parent of ordinary prudence LaPlante (Guardian ad litem of) v LaPlante -father held liable for letting 16 yr old son who just got his liscence drive in icy conditions with traffic at highway speed (Dennis and Emily’s Moot)
c) PROFFESSIONALS
- general principle: an error in judgement is not neg’ce, neg’ce will only be found where performance is not found to comply with ordianry procedure, or is such that reasonable practioner in simialr circs would find perofrmance to be substandard
White v Turner (1981) - ruching plasitc surgeon does a bad breast reduction that leads to deformity

-general practioners are excpected to excersie the standard of care of a reasonable, cmpetent general practioner. this includes knowing their limits and when to refer patients to a specialist Layden v Cope (1984)

- standard of care required of an intern is that of the reasonable intern, but residents are held to standard of qualified physician ( Fraser v Vancouver General Hospital)

-volunteers are expected to have skill and training required to perform their tasks adequately, this includes knowing when to refer

- individuals may be held to proffessional standard of care if they implicitly or explicity hold themselves out as having the skills of a proffessional

- lawyers will be held to the standard of a reasonably competent and diligent lawyer (Brenner v Gregory)

5. A Manufacturer’s and Supplier’s Duty to Warn
Rule: a manufacturer has a duty to warn of any dangers inherent in the use of its products that are known or ought to be known  at the time of sale- warning must be reasonably communicated and clearly describe the danger
Lamber v Lastoplex Chemicals (1971) SCC

Rule: manufacturers duty to warn extends to dangers discovered after the product has been sold and delivered
Rivtow Marine v Washington Iron Works
- note: duty to warn is traceable to “neighbour principle” in Donoughue v Stephenson
Rule: where consumer is relying upon a “learned intermediary” whose knowledge canbe said to approximate that of manufacturer, a warning to the ultimate consumer may not be necessary, and manufactureres duty to warn may be met by informing the intermediary
Hollis v Dow Corning Corp (1995)SCC- in failing to warn surgeon of risk of post surgical ruputre of silicone breast implants, manufacturer was held liable to recipient (test applied: would a reasonable person in Ms. Hollis’ circumstances have consented to the surgery if she had known the risks?)

Rule: suppliers are required to warn of risks which they know or ought to know
Lem v Borotto Sports Ltd. (1976) Alta. CA
- in considering whether concumers have been adequetly informed, the totlity of a muanufacturers marketing and promotional activities will be considered - a manufactuere may be held liable despite providing adequate warning if that warning has been obscured or undermined (Buchanan v Ortho Pharmeceutical)

- duty to warn re: dangers of misuse also exists, duty increases as degree of danger resulting form misuse increases (Lem)
IX THE STANDARD OF CARE

- 2 stages of analysis
1. what is the standard of care that the defendant is required to meet, and what factors         should be considered in determining if it was breached? (ques’n of law)
2. on the facts of the case has the P provent hat the D breached the required standard of         care?

1. The Common Law Standard : The Reasonable Person Test

Arland v Taylor [1955] - the standard of care by which a jury is to judge the conduct of parties in the care that would have been taken in the circumstances by “a reasonable and prudent man”
- note: standard is an objeective one
- takes into account knowledge, training, and experience that D or class of reasonable       persons would know or have in like circumstances
- definition of reasonable man -mythical creature of the law whose conduct is the standard by which the courts measure the conduct of all other people. Not an extraordinary or superhuman creature, normal intelligence who makes prudence a guide to his conducr. Does nothing that a prudent person would not do, acts in accord with general and approved practice. Conduct is the standard adopted in the community by persons of ordinary intelligence and prudence.