Tort Law

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

2. The Duty to Control the Conduct of Others
a) LIABILITY FOR THE INTOXICATED
Jordan House Principle: when profiting from an activity, owe a diuty of care towards visibly intoxiacted patrons
Crocker v Sundance Resorts: does a ski resort have an affirmative duty to prevent a visibly intoxicated person from competing in a dangerous tubing competion?
(TC: duty, AC: no duty, SCC: appeal allowed sent back to trial)
Duty of Care?: rel’n of proximity, competion for financial gain
Standard of Care? ski resort did fully explain risks, breach if standard to allow a drunken              person to compete
Voluntary Ass’n of Risk?- difft to argue due to intoxicated state of D, even though a               waiver was signed (D had no reasonable groinds upon which to               believe that signing of waiver was a genuine expression of intent)
Contirb Negt? 25%
*key points to decsion: commercial context (econ beinift analyisis) and part’n in creation of peril
care towards visibly intoxicated patrons

b) OTHER DUTY TO CONTROL SITUATIONS
- in the absence of legal power or authority to control, there is no legal duty to control (note list of relationships of control or supervision outlined above)
c) THE DUTY TO PREVENT CRIME AND PROTECT OTHERS
Rule: in certain circumsances private law duty of care will be imposed upon public individuals

Jane Doe v Metro Toronto Police:  did police have duty to warn P that a potential serial rapist was in the area?
- relied upon test in Kamploops City v Neilson “policy decsions made by public officials will not attract laibilty in tort so long as they are reasonably and responsibly made. On the other hand when it comes to the implementation of policy decisions, piublic officials who owe a private law duty of care will be exposed to the same liabilty as others if they fail to take reasonable care in discharging their duties”
-held: although forseeability fof risk alone is not enough to impose duty, the narrow and distinct group of potential vicitms did give rise to a special rel’n leading to implsition of duty, case allowed to proceed (note use of Anns test)
3. The Duty to Perform Gratuitous Undertakings
Rule: once D begins to perform a gratuitous undertaking, he may be held liable for negligently injuring the P but if no performance is undertaken, even if promised, no liabilty will flow
Baxter v Jones (1903)
- 3 exceptions: estoppel/injurious reliance; neg’t/fraudulent/or innocent misrep’ns  inducing reliance; recharacterization as misfeasance

Smith  v Rae: a doctor and husband made a K to deliver wifes baby, but wife was not privy to K, so even though she relied on this K to her detriment, his not showing up was charecterised as a nonfeasance and he was held not liable

Rule: where a D undertakes a task to whihc he is under no duty to undertake, that D must not omit to do anything a reasonable perosn would do in performing that task
Zelenko v Gimbel Bros: shop owner undertook to assist a P who got sick in his store, liable in neg;ce for medical aid administered, a reasonable person would have called an ambulance, not kept him away form an infirmary for 6 hours, the guy died

Rule: if a person undertakes to perform a gratuitous act, he is laible if he performs it improperly, but not if he neglects to perform it
Solsby v Toronto - gate regularly manned by a watchman, on dat of accident it was not manned, in reliance on presence of watchman, deceased P crossed tracks and was struck by oncoming train - self imposed duty by D does not relieve P of duty to care for himself. (note: pre Neg’ce Act, today would probably be approtionment

4. Was the Duty of Care Owed to the Plaintiff? The Forseeable Plaintiff Test

- Rule: in order to give rise to a duty of care, P must belong to a class of persons     considered to be foreseeably at risk
Palsgraf v Long Island Ry Co. (1928) - man jumping onto train - pulled in by one guard, pushed by other, package containing fireworks falls and explodes casueing scales at other end of platform to fall on Ps head -
held: possiblity of accident must be clear to prudent eye, and must be within radius of harm to be owed a duty - injuries to P held not be be forseebale so no neg’ce
dissent: act of P itself created forseablity of accident, therefore should be held liable in neg’ce

Haley v London Electricity Board [1965] - blind man trips on workmans obstacle
held: reasonably forseeable that blind person would be on sidewalk, therefore duty of care towards that class owed, city negligent in breach

VII SPECIAL CATAGORIES OF NEGLIGENCE: DUTIES OF       AFFIRMATIVE ACTION

- distinguish:

misfeasance: negligence in a legally permitted act (where the Ps condition is worsened     when the D contributes to or creates a situation fo peril for the P) - “active misconduct”     (duty of care imposed)
nonfeasance: failure to confer a benifit or protect form harm “passive inaction” (no     duty, no imposed liabilty)

in general, unless there is a DUTY on a person to take positive action, ther will be no liability even if harm to another is forseeable or preventable

will recognise an affirmative duty in sit’n where the P is in a position of vulnerability vis a vis the Ds ability to control or protect them, or balance expertise of D with the reliance upon it by the P
1. The Duty to Rescue
- in general no duty to rescue unless there is a relationship of control or supervision (parent/child; teacher/pupil; employer/employee; carrier/passenger; prisons/inmates; hospitals/patients), a relationship of economic  benifit, reliance relationship, statutory duties, or one is the creator of a dangerous situation.
Rule: if you have not created a situation of danger, either through negligence or intentionally, you are not obliged to help the person in danger, especailly if it will comprimise your safety
Osterlind  v Hill- D found not negligent in renting a canoe to P who was visibly intoxicated, nor was he negligent in failing to respond to Ps calls for hel when that canoe tipped (canoes inherently tippy by nature)

Rule: there is a duty to resuce if if D has innocently or negligently created the OPS perilous situation, physically worsened the Ps position, denied the P other opportunities for aid, or induced the P to rely upon him for help …if you start soemthing you must finish it.
Horsely v MacLaren “The Ogopogo”-  D invited (no K’l rel’n) people onto his boat, one fell overboard. In attmepting to rescue th D did not follow the correct procedure, he backed up instead of circling around and coming head on twds the body, another guest then dove in to save the vicitm, and died instantaneously of shock. - was there a legal duty to rescue?
test: what would reasonable boat operator do in the circumdstances, attributing to such perosn teh reasonable skill and experience required of the master of a cabin cruiser who is resp. for safety and rescue of passengers?
held: captain did owe duty to rescue, but no negligence here, b/c death was instantaneous not result of improperly executed rescue., also owed a duty to second victim b/c he induced him to jump in.—effect of error in emerg. sit’n?

VII THE DUTY OF CARE
1. Introduction to the Concept
- in order to sustain an action in neg’ce P must establish that D had a legal obligation to take care not to cause him harm
a) THE CLASSICAL APPROACH
b) THE GENERAL DUTY OF CARE TEST
Donghue v Stephenson [1932] “theres a snail in my ginger beer!!! contents of bottle obscured by dark bottle, is bar or manufacturer liable?
- established that a duty is owed by manufacturers to ultimate consumers of products -
- effect of case was to turn negligence law into a flexible conceptual area
- Rule: you are not to injure your neighbour. One must take care to avoid acts or     ommissions that one can reasonably forsee will be likely to injure ones     neighbour. A persons neighbours are those people so directly and closely     affected by a persons act that the person ought reasonably have them in     contemplation as being so affected when a person directs his mind to the act     or ommission
- Reasonable Foreseeability Test:
1. reasonably forseeable that act/ommission will injure someone
2. neighbours are reasonably forseeable as likely to be injured by those acts and     ommissions

c) THE DEVELOPMENT OF THE MODERN LAW OF DUTY

- effect of Donghue v Stpehnson not seen unitl 1960’s when courts begain to use it to     overturn traditional ass’ns about duty of care
- Hedley Byrne v Heller [1964] to what degree is an investor owed a duty of care by accountant?
- established prfoessional liabilty for neg’t misstatement, case decised on basis of     forseebality of harm
- Anns v London Borough of Merton [1977] -                                                                                                                                                                                                                       Test:1. is there a prima facie duty of care establishable by relationship of sufficient           proximity btwn P and D that injury upon P should have been reasonably               forseeable?
2. are there any circumstances which should negative, or limit scope of duty             owed, to whom the duty is owed, or the damages that will be recognised?
- test has been expressly overturned in UK and Australia, but still followd in Cda, although in applying 2nd portion of test take into acc’t policy (so test is somewhat modified, was rejected in UK on grounds that policy must be ignored and treated as a duty?)
d) ANNS AND THE SUPREME COURT
2. Does Negligence Law Apply?
Demarco v Ungaro [1979] - lawyers can be held liable for negligence
3. Did the Defendants Conduct Give Rise to a Duty of Care?

Rule: where D has taken precautions against all forseeable events, but accident arises out of unlikely nonforseeable event, D will not be held liable
Moule v NB Elec Power Comm. (1960) - wires running through trees - pwer co had attmepted ot clear most surrounding wires, - P climbed to an unusual height, stepped on a rotton branch whcih broke, casueing him to fall, touch wires and was electrocuted held: the company did have a duty of care towards P, but sequence of events was such that Ps injury was not reasonably forseeable

Amos v NB Elec Power Comm [1977] - by climbed a poplar tree so high that his weight casued tree to sway and hit electric wires - he was electrocuted and fell from tree and knocked unconcious
held: accident was a forseebale one, therefore D held liable in negligence for not keeping trees properly trimmed, and wires proeprly insulated (distinguish from Moule on sequence of events)

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.

2. Factors Considered in Determining Breach of the Standard of Care
- court will consider 4 factors:
1. probability of occurance
2. probability of grave/serious harm
3. cost of risk avoidance
4. socail utility of the D’s conduct
a) PROBABILITY AND SEVERITY OF THE HARM
US v Carrol Towing Co. [1947]- owners duty to prevent break away of barge is a function of three variables: the probablity that she will break away, the gravity of the resulting injury if she does, and the burden of adequete precuations - situation is  one whihc custom should control
applies Hands Theorem
P  = probability B = burden L = gravity of resulting injury
so
P *  L > B = liabilty in negligence Plaintiff wins and loss is reallocated to Defendant
P * L < B  = Plaintiff loses, risk remains with the Plaintiff, no negligence

Bolton v Stone [1951]- cricket ball hits plaintiff walking down road near cricket field
Test: whether risk of damge is so small that reasonable person in position of D would see fit to refrain from taking chances to prevent danger (balance forseeabilty of harm with seriousness of harm) test of fact
held: risk of harm so small that even in consideration of safety a reasonable man would disregard risk, therefore no neg’ce

Miller v Jackson [1977] - cricket balls form club flying into backyardinterfering w’ use and enjymennt, but Lord Denning is a cricket fan so wants to protect the cricket club
- approaches case by balancing interests of the public with those of private individuals
- cricket club hads excersissed all rasonable care, offered to settle, impt. that cricket club
was there first
- in consideration of socail utilty, cricket club and players doing what they are entitled to     do,

Paris v Stepney Borough Council [1951] - does an employer have a duty to provide a one eyed worker with goggles when they are not provided to workers who have two eyes?
- balancing the remoteness of harm occuring with potential for graver damage which     would befall a one eyed worker
- majority precaution so inexpensive and risk of blindness in event of injury so prudent     employer should provide goggles
- minority -no neg;ce, cannot say a one eyed man would have a remedy where atow eyed man would not (either neg;t for not providing at all, or say risk too remote to necessitate provision)

b) COST OF RISK AVOIDANCE

Vaughn v Halifax Dartmouth Bridge Comm.(1961) - wind causes paint to splatter from bridge being painted to car park below
held: defendant negligent, b/c although painting season is short, and damage minimal, cost of risk avoidance (ie posting sign) so low that it should have been undertaken

Law Estate v SImice [1994] -physicians responsiblity to individual patient must take precedence over responsibilty to keep costs of meidcare down - negligent in not ordering CAT scan

c) SOCIAL UTILITY
Watt v Hertfordshire County Council [1954] - jack needed to respond to call, truck to whcih it was fitted unavailable -became dislodged and injured P when driver braked suddenly
- claim in negligence rejected, when risk of loading jack balanced againdst end being achieved (putting out the fire)

Priestman v Colangelo [1959] - during a high speed chase cop shot at chasee who subsequently hit the curb killing 2 wome - was cop negligent in shooting?
- no neg’ce cop acting within scope of duty to protect the common good and loss was one     that should be borne by community
-dissent: b/c guy was only a theif this was not worht the loss of only two innocent lives,     cop should have forseen potential consequences of his action

1. The Concept of Negligence
-DEFINITION: i)an act or ommission which unreasonably does or may affect the rights              of others, or whcih fails to protect ones self from danger (Palsgraf v              Long Island Ry Co.)
ii) conduct which falls below a reasonable standard of care as imposed               by law (me)
iii) the ommision to do something whcih a reasonable man, guided upon               those considerations which ordinarily regulate the conduct of human               affairs, would do, or doing soemthing whcih a prudent reasonable               man would not do (Blyth v. Birmingham Waterworks Alderson J.)
2. The Elements of A Negligence Action
Necessary Elements
a) a duty of care must exist
b) must be a breach of that duty (assed with standard of care)
c) actual damge must have resulted from that breach
d) must be proximate cause and damages must not be too remote
e) must be absence of contrib. neg’ce, voluntary ass’n of risk, or illegality

1. duty of care: must be a duty recignised by law to avoid this duty
does the rel’nship btwn P and D warrent a duty on one to care for beifit of other
distinguish btwn misfeasnce (doing something badly) and nonfeaseance not doing it at all)
2. Standard of care: if behaviour falls below objectively set standard, will likely be neg’t
variety of standards depending on situation
3. Damage:can be as negligent as you want as long as you don’t casue any damage
4. Causation: conduct of D must have casued injury or harm to have befallen the P
but for test
cause in fact
5. Proximate Cause/ Remoteness of Damage: is damage to remote to be a result of D’s conduct?
generally limited to recovery of damages which are forseeable
6. Defences: contributory neg’ce
joint tortfeasors
volenti fit non injuria
ex turpi causa
********MUST ESTABLSH THAT ALL ELEMENTS EXIST BEFORE YOU HAVE A CAUSE OF ACTION********

Catagories of Loss:
a) Special Damages: immediately recognisable and quantifiable at trial
b) General Damages: subject to determination of court
i) cost of future care
ii) loss of earnings (loss of potential earnings)
iii) nonpecuniary damages (loss of amenities of life, pain and suffering,             emotional distress, loss of expectaion of life)

Dunsmore v Deshield (1977)- plaintiffs glasses broke whicle playing football and fcae hurt - D had failed to deliver proper lenses -no contrib neg’ce b/c P wouldn’t have played had he not believed the lenses to be shatter proof
casuation- injury caused by wrong lenses since Hardex wouldn’t have broken
injury- manufacturer and distributor liable for damages

6. The Defence of Legal Authority
Enables D to engage in conduct whcih would otherwise be tortiuous
Elements: 1. was Ds act that gave rise to tort specicfically authorised by statute or                     common law?
2. was the D privelaged from criminal and civil liability?
3. did the D fulfill the other obligations that were imposed upon her in this                     process?
umbrella defence covering many statutory defences and therfore not a defence in itself
note: impact of Charter has been substantial

7. The Apportionment of Fault in Intentional Torts
Can a D in an intentional tort action invoke apportinment legislation (apportions losses btwn D and P according to respective degrees of fault) and use Ps contributory negligence as a partial defence

V THE BASIC CONCEPTS OF REMEDIES IN INTENTIONAL TORTS
1. Judicial and Extrajudicial Remedies
i) Judicial:a) damages
b) injunction
c) declaration
d) specific performance
ii) extrajudical: self help remedies, recapture of chattels, reentry onto land, abatement of nuicance

2. Classifications of Damages
- for either pecuniary or nonpecuniary losses
-Special damages those which are capable of exact quantification at the time of trial (require pleading and proof on part of P)
-General damages those which are incapable of such quantification

3. Nominal Damages
Traditionally awarded for those tort actions which are actionable w/o proof of loss - redress a violation of a legal right that the law deems worthy of prot’n in the abdsence of real harm.This right to claim in absence of harm est in The Mediana[1900](HL)

4. Compensatory Damages
Place P in situation he would have been in if it were not for wrong sufferred by means of monetary award
Damages are assesed at time injury occurs. Measure: make P whole, return to pos’n before commission of tort. Distinguish from K, where place P in pos’n would’ve been in if it were not for breach, Measure: what was reasonably forseeable at time K was made

5. Punitive Damages
Purpose is to punish D, avaiable when “conduct is reprehensible, unduly harsh, vindictive, malicious, fully deserving of condemnation and offensive to common standards of decency” (Norberg v Wynrib, B(P) v B(W)) extends Rookes v Barnard which limits awards of punitve damages to 1)abuses of power by gov’t
2)torts committed for profit (Claiborne Industries, Collins v Lussier)
Vorvis v insurance Corp. of British Columbia
Wallace v United Grain Growers

IV DEFENCES RELATED TO THE PROTECTION OF PERSON AND PROPERTY

1. Self Defence
Onus on defendant to est. on bop that:
i) he reasonably beleieved that he was about to be attacked
ii)the amount of force used was reasonable in hte circumstances
a) must retreeat if ness
b) includes honest, but mistaken belief that threat exists (objective reasonable                  person test)
c) not liable for nonnegligent injuries to innocent persons who get in the way, but              cannot use another to protect yourself
d) relevant factors are immediacy of harm, relative size, harm to be prevented and         urgency of sit’n - Right to invoke defense ceases as soon as danger passes
iii)force used must be reasonable and not excessive - distinguish btwn amnt of force              (under Ds control) and result of force (not under Ds control) not req to measure blows        w/ legal nicety

Wackett v Calder[1965](BC CA)- question as to whether the blows by appellant were more than was reasonably necessary, find that they were not. Dissent on the point that appeallant should have and could have walked away

2. Defence of Third Parties
Defence may be raised by anyone as long as intervention is necessary
same requirements as self defence

Gambriell v Caparelli[1974}(ON Co Ct)-mother able to raise this defence after striking P several times while under mistaken apprehension that he was harming her son, force used determined to be reasonable in circumstances

3. Discipline
defence can be invoked by parents and guardians to privelege the use of force in dealing w/ children (Criminal Code s 43 authorises use of force "by way of corrction"  therefore it is a justification)
Requirements:
1. force must be for corective purposes
2. force used must be reasonable under the circumstances (both objectively and                subjectively) use of social standards rather than those of the accused
3. educators are granted broad authority under defence, but cannot be used to discipline         the mentally ill
R v Dupperon[1984](Sask CA)- held that while strapping of thirteen year old son was done for corrective purposes only, force used was unreasonable, esp w/ regard to empotionally disturbed state of boy

5. Public and Private Necessity
- Arises in situations of great and imminent danger to life / property that can be averted        by P’s lesser inerests- is defendant privelaged to invade P’s ppty & if so who             should pay for losses?
- onus to prove necessity rests upon defendant
- Distinguishable from self defence b/c tort is committed against innocent pty not             aggressor, from negligence b/c reasonable means must be taken to protect other                interest and form duress b/c of mental element fear of imminent harm

a) PUBLIC NECESSITY
Alows the intentional invasion of the property rights of another in order to save lives or to protect the public interest from external force (usually threats of nature, reason defence could not be invoked in London Bourough of Southwark v Williams)
Complete defense no compensation is payable
Elements:1. honest and reasonable belief in necessity of action (mistaken belief will                   suffice)
2. must be proportionality btwn harm incurred to innocent persons interest                     and public benefit (no unnessesary damage)
3. defence restircted to property interests (failure in R v Dudley and Stephens)
4. an individual who negligently caused or contributed to emergency sit’n will               not be allowed to benefit from defence
Surrocco v Geary[1853](Cal SC) “individual rights of ppty give way to the higher laws of impending necessity” blowing up of Ps house necessary in order ot prevent spred of fire, house would’ve been consumed by fire anyway, losses not recoverable.

b) PRIVATE NECESSITY
Defence arises when emergency causes invasion of Ps interests for the benefit of a private individual
Partial defence only, may only intrude w/ no liabilty where no damage is casued, compensation will be ordered for any harm caused
Resistance to excersice of necessity is culpable
Law will order restitution where benifit is gained at anothers expense

Vincent v Lake Erie Tpt. CO.[1910](Minnesota SC)-shipowner was right in helping himself to to use of dockowners ppty during a storm, thus invoking defence of necessity to charge of tresspass to the dock - were liable for compensatory damages to be paid to dock owner (excused from fault but held liable for losses)

4. Consent to Treatment and Counselling

a) GENERAL PRINCIPLES
- consent required prior to performing any procedure
- consent must be full, related to immediate procedure and related issues
- if patient is competent only her consent alone is needed
- must be voluntary and based upon a full and frank disclosure of nature and risks of     procedure
- consent may be explicit or implicit, may be limited
- health care proffessional may refuse treatment, but cannot not ignore requested     limitations
Health Care Consent Act 1996 has supplanted much common law

b) EXCEPTIONS TO THE GENERAL PRINCIPLES OF CONSENT
1. unforseen medical emergency where it is impossible to obtain consent
2. in cases of consent to a course of counselling, treatment or operation, patient will be         viewed as having given implied consent to subsequent procedures which are                     necessarily incidental to agreed treatment, unless consent is expressly negated
3. proffessional has right to withold info if its disclosure would undermine patients              morale and prevent her from seeking further treatment (limited application today)

Marshall v Curry[1933](NS SC)- removal of gangrenous testicle w/o express consent during course of hernia operation- no need for consent in cases of emergency, conditin could not have been reasonably forseen, and emerg. arose during the course of the operation, physician has a higher duty to save the life of the patient

Scope of Consent:
Mallette v Shulman[1987](ON HC)- dr administered a blood transfusion to a JW despite the knowledge that she carried a card stating she did not want any blood, this was confirmed by her daughter but he continued anyway..is he liable in battery? - drs concern about validity of card although honest was not foundedin the evidence before him- question whether informed consent extend to informed refusal, no b/c to be valid consent must be informed & dr must treat w/n bounds of htat consent, but dsame laibilty considerations do not apply to refusal, right to refuse treatment is founded upon supremecy over ones body, not understading of risks of refusal.

c) THE BURDEN OF PROOF AND CONSENT FORMS
Onus of proof lies w/ health care workers on BOP
consent forms are of only limited value

d) COMPETENCE TO CONSENT
Test: is the patient able to understand the nature of the proposed treatment and its risks,   not is the patient able to amke a reasoned and prudent descion

i) MINORS
Statutory minimum is 16, but no recog min age at common law, same test as adults
ii)ADULTS
Case by case basis-most often arises w/ respect to mentally ill, but what about an alcoholic, a sedated patient, or a patient in severe shock?

e) SUBSTITUTE CONSENT
- dealt w/ under ss 22-24 of Health Care Consent Act, pric=nciples easy to state in theory, but diff’t to apply

f) INFORMED CONSENT: BATTERY OR NEGLIGENCE?
Definition: in order for consent to be valid a victim must be aware of the possible harmful consequences of his or her actions.
Riebl v Hughes[1980]-if a patient has not been informed about risks of treatment, may bring about claim in battery, but if patient has been informed can bring only claim in negligence