6. Degrees of Negligence
- some statutes used to find liability if gross neg’ce could be proven, but now noraml neg’ce will do
7. Custom
general principle: custom is used to establish a standard of care, will only find neg’ce if there is noncompliance with this standard, excpetion where pricedure os so fraught with risk that an ordinary person could reasonably avoid
- courts unwilling to determine standard of care esp for nbew procedures heavy reliance on experts to establish
Ter Neuzen v Korn -P contracted HIV from artificial insemination in 1985 following standard practice
held: whereprocedure is medically uncertain or highly technically complex, it is not open to court to find procedure neg’t
X CAUSATION
- There can be no liabilty for neg’t cunduct unless damage is caused by it. There must be some link or connection btwn the wrongful act and the loss beign complianed of
- Even if D caused the Ps loss, s/he will not be held liable if the causal connection btwn her neg’t act and the P’s loss is too tenuous or remote to justify impsing liabilty
- The causal relationship btwn th alleged negligence and the injury must be made out by the evidence and not left to the conjecture of the jury
1. Determining the Cause in Fact
- onus: on plaintiff to prove on bop that by a preponderance of evidence that the defendants negligence was the effective casue of death
a) THE BUT FOR TEST
- looks backwards in time, asking had the defendant not acted the way he did, would the harm have befallen the plaintiff?
- requires that Ds conduct make a difference to tbe Ps status quo ante
Cork v Kirby (1959) Ont CA : epileptic painter who was under medical directive not to work at great heights doesn’t tell his employer this, and then in the course of a seizure, fell from a scaffolding that had been provided by his employer, but had not been built to code - distinguishes btwn “but for” test and proximate cause (looks forward in time asking if from the Ds act the the harm/injury to the P was forseeable) - both elements were causes, P for failing to disclose illness, and D for failing to provide proper scaffolding - so P contributorily neg’t damages reduced by 50%
Kauffman v TTC (1959) ON CA: held that absence of a handrail on escalator was not a sufficent cause of Ps injuries, to hold D liable in neg’ce - no evidence that people who caused the fall were grabbing hte handrail or if the P had that she wouldn’t have fallen
b) CAUSATION AND CORRELATION
- where it is impossible to prove but for —> must at least make a probable conn’n
- P must prove on bop that D’s neg’ce, although not exclusively resp for injury, was one of the material factors contributing to it
Rule: where a person has created a risk by a breach of duty, and injury occurs within the scope of that risk, the loss will be borne by him unless he shows some other cause —> defendant has the burden of disproving causation once the material risk is shown
McGhee v National Coal Board (1972)(HL)
Rule: the legal or ultimate burden lies withe the P, but in the absence of evidence to the contrary adduced by the D, an inference of causation may be drawn even though positive proof of causation has not been. (not really a reverse onus as the P must present some evidence that allows an inference of causation to be drawn - d has the burden of proving otherwise)
Snell v Farrell (1990 SCC)- surgeon continued to operate dutring cateract surgery, even after noticing bleeding - woman then goes blind. Neg;t act of continuing to operate is not contested, but must prove that it caused the injury.
- 2 broad principles of burden of proof:
1. onus on P
2. where subject matter of the allegation lies particularly w/n the knowledge of one party, that party may be required to prove it.
- in this case the 2nd princip. applies as it is dif’t for the patient to prove casuation (no access to med records, notes, etc.) material contrib to risk taken from McGhee, P need only bring evidence of material contrib. to risk.
Take from this: the ordinary principles of causation are adequate to the task if properly applied- relaxation of the but for test in some circumstances - use the principles of proof flexibly - causation from point of view of common sense. When facts of case lie mostly within the knowledge of the D, very little affirmative evidence on the Ps part will justify the drawing of an inference of of casution in the absence of evidence to the contrary. The adverse inference is then made a tactical burden on the doctor. where the P can show that Ds actions materially contributed to the Ps loss, D must show that he was not the cause.
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