VIII SPECIAL DUTIES OF CARE
1. The Duty of Care Owed to Rescuers
Rule: if a victim imperils himself, they are laiable to the person who attempts to resuce; if another preson causes someone to become imperiled, then they are liable to the victim and to the rescuer
Horsely v MacLaren- no liabilty in neg;ce found here, said death was the result of a mistake made under pressures of emergency sit’n
general principles:
- a negligent actor os liable to reimburse a rescuer for losses incurred during a rescue attempt (videan v british transport comiss,; ogopogo)
-a duty is owed ot people injured while protecting their own ppty due to your neg’ce
- rescuer will not be protected in every case, must be reasonably percieved danger, and the rescuer must not be foolhardy or rash
- the defence of voluntary ass’n of risk has been virutally eliminated from recue cases
2. Duties Owed to the Unborn
i) prenatal injuries- D negligently injures fetus and child is born injured or handicapped -ex from car crash - can P sue own parents?
ii) preconception torts- negligent injury to parent prior to conception resulting in genetic defect - pbl;m here is one of causation
iii) wrongful life- for example mopther claims doctor was negligent for failing to inform of potential handicap or other defect, and child sues for wrongful life - but for neg;ce would not have to live as a disabled person - hige issues re valuation upon the lives of the disabled
iv) wrongful birth control, sterilization and abortion- based on general medical negligence claims, courts have tended to award damges only where child is not healthy at birth
3. Nervous Shock
Rule: will be entitled to recovery for nervous shock if nervous shock was reasonably forseeable as a result of the defendants conduct
-factors taken into account:
i) relational proximity
ii) locational proximity(being at scene and observing the shocking event)
iii) temporal proximity(rel’n btwn time or event and onset of pyshc illness)
- nervous shock must be accompained by recognizable physical or pyschological illness in order to be recoverable, emotional stress is not recoverable
- ordinary bystander cannot recover for nervous shock, must be related in some way
Rule: Shock must come from hearing or seeing the actual event
Rhodes v Canadian National Railway Co. (1990 BCCA)- mother who heard through a third party of her childs death that had occured elsewhere was not able to recover for nervouse shock, relationship of proximity not deemed to be close enough
4. A Doctors Duty to Inform
general principle: doctors are under an affirmative duty of care to to disclose all material risks of proposed treatments to their patients, nonmaterial risks that they know or ought to know would be of particular importance to patient concerned, and sufficient information about proposed procedures to enable patients to make informed choices failure to do so will result in being held liable for neg’ce
- a material risk is defined as a remote risk of serious injury
Rule: in order to give informed consent patient must also be informed about consequences of leaving ailment untreated and any alternative means of treatment
Haughian v Paine (1987) Sask.CA- doctor found liable in neg’ce for failing to inform patient of risk of paralysis from proposed surgery, as well as conseq. of not treating his disc injury, or of alterate means of treatment. P who underwent surgery ended up paralysed. - basically an extension of Reibl v Hughes
Rule: a doctor is not priveleged in witholding information which he believes will unduly frighten or deter the patient
Hopp v Lepp(1980) SCC
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