tort law midterm

what is law?

a set of rules enforceable by the state

what is common law?

judge-made law developed over time through judicial decisions and precedent

Appeals and court hierarchy

• courts follow a hierarchy: trial court/Ontario Court of Justice → Ontario Court of Appeal → Supreme Court of Canada

• higher courts can review decisions from lower courts and higher court decisions are binding

• appeals happen when a party to a lawsuit disagrees with the decision of the court and can find a mistake in law in that decision that supports an appeal

legal realism vs legal positivism

• realism: questions whether judges simply apply objective legal principles or whether personal beliefs and feelings influence their decisions

• positivism: law is the law as established or written, legal validity comes from existing legal rules rather than personal morality or preferences

what is statutory law

written law enacted by legislature

what is precedent and stare decisis?

• precedent is an earlier court decision used to guide future cases

• stare decisis is the principle that courts should follow applicable binding (only binding if made by higher court) precedents to maintain consistency and predictability

what is the difference between ratio decidendi and obiter dicta?

• ratio decidendi - the legal reasoning necessary for the decision; it’s the binding part of a judgment

• obiter dicta - additional comments made by a judge that are not necessary to decide the case; they are persuasive but not binding

what is the difference between binding and persuasive precedent?

• binding precedent: a decision that a lower court is legally required to follow

• persuasive precedent: a decision that may influence a court but doesn’t have to be followed

what is the difference between majority, dissent, and concurrence?

• majority: the opinion supported by most judges that determines the outcome

• dissent: an opinion disagreeing with the majority’s decision

• concurrence: an opinion agreeing with the outcome but using different reasoning

what is the difference between private and public law?

• private law: governs disputes between private individuals or organizations

• public law: governs matters involving the state and its relationship with individuals

what is the difference between the civil and criminal standards of proof?

• civil: balance of probabilities, meaning the claim is more likely true than not

• criminal: beyond a reasonable doubt, a much higher standard used to establish guilt

what is concurrent liability?

when the same conduct creates both civil liability and criminal responsibility

what is the difference between intentional torts and negligence?

• intentional tort: involve intentional conduct, such as assault or battery

• negligence: involves failing to exercise reasonable care, resulting in harm

what does actionable per se mean?

the wrongful act itself creates a legal claim without requiring proof of physical injury, reputational damage, or financial loss (ex: defamation, trespassing, assault/battery, false imprisonment)

what are the 5 elements of negligence?

1. duty of care - the obligation (legal relationship) to act with care to avoid foreseeable harm

2. standard of care - defines how you fulfil that obligation (degree of care required)

3. breach of the standard of care - person failed to meet standard through an action/omission

4. causation - harm was direct and reasonably foreseeable

5. damages - plaintiff suffered a measurable financial, physical, or emotional loss as a direct result

what is the difference between factual causation and legal causation?

• factual causation: whether the defendant’s conduct actually caused the injury, usually using the but-for test

• legal causation: whether the injury is sufficiently connected to the defendant’s conduct to justify legal responsibility, considering intervening events and remoteness

why is negligence considered a fault-based tort?

the defendant is at fault when they fail to exercise reasonable care, including failing to anticipate reasonably foreseeable harm

what is corrective justice?

• the principle that a defendant must correct a wrong committed against a specific plaintiff

• it focuses on the relationship between the person who caused the harm and the one who suffered it

what is distributive justice?

the fair distribution of benefits, burdens, and resources throughout society

what is correlativity

• a defendant’s duty corresponds to the plaintiff’s right

• the defendant’s wrongdoing and the plaintiff’s injury are 2 sides of the same legal relationship

what is loss spreading?

distributing the financial costs of injuries across a broader group (a large pool of people, often insurance policyholders or taxpayers)

what is loss fixing?

identifying the party legally responsible for an injury and requiring that party to compensate the victim

what is cost internalization?

making individuals or businesses that create risks bear the costs of the injuries resulting from those risks (before damage/accident can happen), encourages producers to innovate and reduce risks to lower costs

what is the neighbour principle?

people must take reasonable care to avoid acts or omissions that could reasonably foreseeably injure those closely and directly affected by their conduct

what is the objective reasonable-person standard?

a person’s conduct is compared to what a reasonable person would do in similar circumstances, rather than what the defendant personally believed was reasonable

what is foreseeability?

whether a reasonable person could anticipate the general type of harm that might result from their actions or omissions

what is proximity?

a sufficiently close and direct relationship between the plaintiff and defendant that supports recognizing a legal duty of care

what is the ordinary fortitude test?

whether psychiatric injury would be reasonably foreseeable in a person of ordinary mental strength in the plaintiff’s circumstances (requires probable consequence, not a mere probability)

what is the calculus of negligence?

• courts assess whether reasonable precautions were required by considering:

  • probability of harm

  • seriousness of potential injury

  • burden or cost of preventing the harm

what is the but-for test?

the plaintiff must prove that their injury would not have occurred but for the defendant’s negligent conduct

what is material contribution?

the defendant’s negligent conduct made a real, non-trivial contribution to the plaintiff’s injury

what is material increase in risk?

in exceptional circumstances, significantly increasing the risk of injury may support causation when scientific evidence makes it impossible to establish the exact cause

what is novus actus interveniens?

a new intervening act or event that breaks the causal connection between the defendant’s negligence and the plaintiff’s injury

what is remoteness of loss?

a defendant is only responsible for harm that is not too remote, generally meaning the type of harm must have been reasonably foreseeable

what is the difference between causation and remoteness?

• causation: determines whether the defendant’s negligence actually caused the injury

• remoteness: determines whether the type of injury was reasonably foreseeable and sufficiently connected to the negligence

what is the purpose of damages in tort law?

to compensate the plaintiff and restore them, as much as money can, to the position they would’ve been in if the wrongful conduct had not occurred

what is the difference between pecuniary and non-pecuniary damages?

• pecuniary or special: financial losses, such as lost income and medical expenses

• non-pecuniary or general: non-financial losses, such as pain, suffering, and loss of enjoyment of life

  • recognizes that money cannot reverse an injury but can provide comfort, opportunities, and substitute experiences that improve the plaintiff’s quality of life

what are aggravated and punitive damages?

• aggravated damages: compensate the plaintiff for additional harm caused by the defendant’s particularly wrongful conduct

• punitive damages: punish the defendant and deter especially egregious conduct

what are contingencies in damage awards?

uncertainties about future events that courts consider when calculating compensation for future losses

what is a discount rate?

a rate used to calculate the present value of future financial losses as a single lump sum, accounting for expected investment returns and inflation assumptions

what is material risk?

risk that a reasonable person in the patient’s position would consider significant when deciding whether to accept or refuse a proposed treatment

what is the difference between battery and negligence in medical consent?

• battery: occurs when treatment is performed without consent or beyond the scope of the patient’s consent

• negligence: occurs when a physician fails to disclose material risks or provide sufficient information for informed consent

what is voluntary assumption of risk?

a defence requiring proof that the plaintiff freely accepted both the physical risk of an activity and the legal risk of releasing the defendant from liability

what is contributory negligence?

when the plaintiff’s own failure to exercise reasonable care contributes to their injury, potentially reducing the damages they receive

what is the rescue doctrine?

a person who creates danger through negligence may be responsible for injuries suffered by someone who reasonably attempts to rescue the person endangered

what is pure economic loss?

• financial loss that doesn’t result from physical injury to the plaintiff or physical damage to their own property

  • ex: negligent misstatement/bad advice, defective products

• traditionally viewed purely financial losses as matters better addressed through contract law rather than negligence

what is relational economic loss?

financial loss suffered because another person’s property is damaged or unavailable

what is the incremental approach to duty of care?

courts develop new duties of care gradually by comparing proposed relationships with previously recognized categories and considering proximity and policy concerns

what are collateral benefits?

benefits received by an injured plaintiff from an independent source, such as insurance, welfare, or employment benefits, that may affect the calculation of damages

Donoghue v Stevenson

• Donoghue drank ginger beer purchased by her friend and discovered a decomposed snail inside the bottle, causing her to become ill

• although she had no contract with the manufacturer, the House of Lords held that the manufacturer owed her a duty of care as the ultimate consumer

• the case established the neighbour principle: people must take reasonable care to avoid acts or omissions that could reasonably foreseeably injure those closely and directly affected by their conduct → became the foundation of modern negligence law

Escola v Coca-Cola

• a Coca-Cola bottle exploded in Escola’s hand, causing injury

• Justice Traynor argued in his concurrence that manufacturers should be held liabe for defective products → meaning an injured consumer shouldn’t have to prove negligence at all

  • manufacturers are best positioned to allocate costs of injuries as a cost of doing business by distributing through product pricing (a form of social insurance)

• his argument emphasized loss spreading and cost internalization

Palsgraf v Long Island Railroad

• Railway employees helped a passenger board a moving train, causing him to drop a package containing concealed fireworks

• the package exploded, knocking over a scale that injured Palsgraf

• the majority, written by Cardozo, held that the railroad owed Palsgraf no duty of care because she was outside the foreseeable zone of danger

  • workers may have owed a duty of care to the passanger they were helping but not to a remote bystander (Palsgraf)

• Andrews dissented, arguing that everyone owes a general duty to act reasonably and that liability should depend on whether negligent conduct proximately caused the injury

• illustrates the difference between foreseeability in determining duty and proximate cause in determining liability

Bourhill v Young

• a pregnant woman hard a motorcycle collision and later saw blood at the accident scene

• she suffered psychiatric harm (severe nervous shock → later gave birth to a stillborn child) and alleged that the motorcyclist was responsible

• the court held that the motorcyclist owed her no duty of care since psychiatric injury to someone in her circumstances was not reasonably foreseeable

• she was outside the area of physical danger and didn’t witness the accident

• illustrates ordinary fortitude test and the importance of spatial and temporal proximity when determining liability for psychiatric harm

Oke v Weide Transport

• a transport truck struck and bent a highway signpost without the driver being negligent, however, the driver failed to report the hazard

• later, Oke illegally drove onto the highway median, encountered the damaged signpost and crashed while attempting to avoid it

• the defendant was not liable → although they didn’t report the hazard, a defendant is not liable if the resulting harm was entirely unforeseeable

• illustrates that a defendant is not responsible for every consequence of an event, particularly when an unusual and unforeseeable action contributes to the injury

Moule v New Brunswick Power Commission

• a 10-year-old boy used an unusual route involving trees and a makeshift ladder to access high-voltage power lines and was injured

• the court found the power commission wasn’t negligent because this unusual method of accessing the wires was not reasonably foreseeable

• the utility had taken reasonable precautions to keep the lines inaccessible through ordinary means

• establishes that defendants must guard against reasonably foreseeable risks, not every imaginable possibility

Amos v New Brunswick Power Commission

• a 9-year-old boy climbed a tree whose leaves concealed high-voltage power lines and suffered serious electrical injuries

• the court held the power commission liable because it was reasonably foreseeable that children might climb the tree and encounter the wires

• the utility should’ve maintained the surrounding trees and removed the danger

Bolton v Stone

• a cricket ball travelled over the boundary of a cricket ground and struck Stone while she was standing on a nearby public road

• the ball had only cleared the boundary 7 times in approximately 30 years, and no previous injuries had occurred

• the House of Lords held that the cricket club was not negligent because the probability of harm was extremely low

• the case established the calculus of negligence: courts consider the probability of harm, seriousness of potential injury, and burden of taking precautions (foreseeability alone doesn’t establish negligence)

Paris v Stepney Borough Council

• Paris was blind in one eye, and his employer knew about his vulnerability

• while working without safety goggles, a metal chip struck his remaining good eye, causing complete blindness

• the House of lords held the employer liable because it should have taken additional precautions given the seriousness of the potential harm

• establishes that standard of care can require greater precautions when the defendant knows that an individual has particular vulnerability (thin skull rule)

McGhee v National Coal Board

• McGhee worked in dusty brick kilns, and his employer failed to provide washing facilities, forcing him to cycle home covered in abrasive dust

• he developed dermatitis, but medical science couldn’t establish exactly which exposure caused it

• the House of Lords held the employer liable because its negligence materially increased the risk of injury

• important for its treatment of material increase in risk as a basis for establishing causation in an unusual situation involving scientific uncertainty

Lauritzen v Barstead

• Lauritzen was driving Barstead (his boss) home as he was intoxicated, as he was driving, Barstead wanted more beer but Lauritzen refused → Barstead grabbed the wheel and the car went off the road → causing the vehicle to become stranded

• Lauritzen eventually left to seek help in freezing weather and suffered frostbite, requiring amputations

• the court held Barstead responsible because Lauritzen’s decision to leave the vehicle was a reasonable response to the danger and didn’t break the chain of causation

• however, the loss of Lauritzen’s marriage was considered too remote

• illustrated that a reasonable response to danger created by a defendant doesn’t ordinarily constitute a novus actus interveniens

Andrews v Grand & Toy

• Andrews suffered quadriplegia in a motor vehicle accident caused partly by the defendant’s negligence and required lifelong assistance and care

• Court held that Andrews was entitled to be cared for in a home environment, rather than being institutionalized, rejecting the defendant’s argument for cheaper care → goal to provide safety, dignity, and real quality of life

• the Supreme Court of Canada addressed compensation for catastrophic injuries, emphasizing adequate future-care funding, avoiding duplication of damages, and the functional approach to non-pecuniary damages, subsequently adjusted for inflation

• set a $100,00 cap for absolute worst-case, catastrophic injuries (adjusted for inflation, now would be around $465,000)

Reibl v Hughes

• Riebl underwent carotid artery surgery without being adequately informed of the risk of stroke and paralysis

• he suffered a stroke and became permanently disabled

• the Supreme Court held the doctor liable for negligence because material risks had not been disclosed

• established the modified objective test for informed consent: whether a reasonable person in the patient’s specific circumstances would have refused or postponed treatment if properly informed

• relevant circumstances included Reibl’s age, financial situation, and proximity to receiving his pension

Matthews v MacLaren / Horsley v MacLaren

• Matthews fell overboard from MacLaren’s boat

• during the attempted rescue, Horsley voluntarily jumped into the cold water and died

• the Supreme Court of Canada dismissed the appeal against MacLaren, finding that the evidence didn’t establish that MacLaren’s negligence caused Horsley’s death

• Ritchie J emphasized that a person may owe a duty to make reasonable resue efforts but causation must still be proven

• Laskin J dissented, arguing that MacLaren owed Matthews a duty was a passanger, breached that duty through a negligent rescue, and caused Horsley to attempt a rescue

Crocker v Sundance Northwest Resorts

• Crocker became heavily intoxicated while participating in a tubing competition

• the resort knew he was intoxicated but allowed him to continue, he suffered quadriplegia during the race

• the Supreme Court held the resort liable because it failed to take reasonable steps to protect an intoxicated pariticpant from the foreseeable risk of serious injury

• the exclusion waiver didn’t establish that Crocker had voluntarily accepted the legal risk of releasing the resort from liability

• his own conduct contributed to the accident (25%), so contributory negligence reduced his damages (75%)

Norsk v Canadian National Railway

• a tug damaged a bridge owned by Public Works Canada that CNR relied on for approximately 86% of its railway operations and its only direct rail connection

• CNR suffered financial losses when he bridge became unavailable, despite not owning it

• the Supreme Court allowed recovery because CNR had a sufficiently close relationship with the bridge and its owner to establish proximity

• illustrates relational economic loss and the incremental approach to recognizing new duties of care, while limiting liability to avoid indeterminate claims

Boarelli v Flannigan

• Boarelli was injured and received welfare assistance while unable to work

• the court considered whether these independent benefits should reduce the damages owed by the defendant

• the Ontario Court of Appeal generally held that benefits such as welfare, private insurance, employment benefits, and voluntary payments should not automatically benefit the wrongdoer through a reduction in damages

• illustrates the collateral benefits principle: the treatment of independent benefits depends on their source and applicable legal rules

Jordan House v Menow & Honsberger

• Jordan House Hotel served Menow alcohol despite knowing he had a drinking problem and being instructed to serve him only when accompanied by a responsible person

• the hotel eventually ejected him while intoxicated, and he was struck by a vehicle (Honsberger) while walking along the highway

• the Supreme Court held the hotel owed him a duty of care because it knew about his vulnerability and had contributed to creating the dangerous situation

• it should’ve taken reasonable precautions, such as arranging transportation or ensuring he was accompanied

• establishes that a business may owe a positive duty to protect someone from foreseeable danger it has helped create, even when the person is intoxicated

• liability was shared among parties (1/3 each)

Dobson v Dobson

• a pregnant women negligently drove a vehicle, causing prenatal injuries (physical issues and cerebral palsy) to her unborn child, who was later born alive and sued her

• the Supreme Court majority refused to recognize a duty of care owed by a pregnant woman to her unborn child for pregnant injuries caused by her driving

• the majority emphasized maternal autonomy, privacy, quality, and the difficulty of imposing a legally enforceable standard on pregnant women’s everyday conduct

• McLachlin J concurred, while Major J dissented and argued that the child should be able to bring a claim

Mustapha v Culligan

• Mustapha discovered dead flies in a bottle of water supplied by Culligan

• although he hadn’t consumed the water, he developed a serious psychiatric condition (phobia of bottled water)

• the Supreme Court recognized that Culligan had negligently supplied contaminated water but denied compensation because psychiatric injury was not reasonably foreseeable in a person of ordinary fortitude

• established that genuine psychiatric injury is not automaticaly compensable; plaintiff must still establish reasonable foreseeability and satisfy the requirements for negligence

Nespolon v Alford et al

• group of teenagers left an intoxicated 14-year-old outside his familiar home

• he wandered onto a highway and was killed by a passing vehicle (Nespolon)

• the court considered whether the teenagers were negligent in leaving him there, taking into account their age, intelligence, and experience and also if they were subsequently responsible for the driver’s PTSD

• the majority rejected the driver’s psychiatric injury claim because the harm was not reasonably foreseeable

• Brooke J dissented, arguing the teenagers knew the boy was severely intoxicated and should’ve ensured he was taken somewhere safe

• illustrates duties arising from voluntarily accepting responsibility for someone vulnerable, the standard of care for young defendants, and foreseeability of psychiatric harm