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Law 2101 (574)
Lecture 5

tort law5

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Western University
Law 2101
Mysty Sybil Clapton

Causation, Remoteness, Defences Causation • Must have caused the accident • Two sub issues o What is the test for causation in this particular situation?  Question of law- proper test of causation o Can the plaintiff prove that defendant’s negligent act caused injury?  Question of fact • Must only prove negligent act was a cause, NOT the most important cause, or a direct cause, or an immediate cause • Multiple injuries must be analyzed separately- The “But For” Test • But for defendant’s negligence, would the plaintiff have suffered the injury? o Bolton v. Stone: person hits home run and hits old lady in the face, BUT FOR the actions of the baseball player, would she have suffered injury? No therefore he is ACAUSE o Palsgraph: person carrying dynamite, it explodes, BUT FOR actions of conductor would she have been injured? NO o Wagon Mound #2- harbour would not have burned down had chief not lit it on fire o Barnett v Kensington Hospital Management Committee: someone was a night watchman drinking tea with other workers, he didn’t feel well, laid in closet, and fell asleep, and he was found in the morning, taken to hospital, doctor wasn’t feeling well, didn’t want to check man, man dies, family sues hospital for negligence, a reasonable doctor would have asked more question, he had arsenic poisoning BUT he would have died anyway, therefore hospital not held liable because plaintiff couldn’t rove causation o Richard v CNR: plaintiff is on a ferry sitting down, gets sick and falls asleep, wakes up to someone yelling “we’re here” he put car in reverse and drove right off the boat, he sues, but court said even if there was a rope attached to the car, it would have happened anyways Material Contribution Test • Over-determination o Lambton v. Mellish: same music playing day after day for many hours, on a carousel, people living beside get fed up, and sue both owners for negligence, as music was very annoying, did the carnival owners cause the people to be upset? Their argument was that they BOTH get off, because even with one there would still be music playing, court held THEYWERE BOTH HELD LIABLE, when there is too much causation, material- contribution to injury test- whether or not carousel owner 1 and 2 made material injury o Corey v Havener: Person is riding a horse with friend on a nice little horse ride and a person comes on behind them on a motorcycle, who tries to pass, motor makes exploding noise, bolt of lightening strikes at the same time, horse gets terrified and bolts away, ride of one horse is killed, it was an innocent negligence Factual Uncertainty • Up to the plaintiff to prove that someone was cause of their injuries • Cook v. Lewis: two people out hunting, so are two other people, they see something in the bush and shoot, both groups shoot at same time, and plaintiff is shot in the eye, which one did trial is held, defendant #1 says other guy did it, defendant #2 says # did it, if BUT FOR test, plaintiff couldn’t prove on balance of probabilities who it was. WHERE plaintiff can prove that two people were negligent, they can both be held liable • Fairchild v. Glenhaven Funeral Services Ltd: plaintiff developed rare cancer, caused by inhalation of asbestos, everyone dies of this, he goes to sue the people who he thinks may have given it to it, he worked for three funeral homes over his career, problem was scientists didn’t know which fibres caused it, all they knew is that it was asbestos, and when diagnosed, more wont make it worse, he sued all three employers, BUT FOR test wouldn’t work, they will just point fingers, not case of over determination because one piece can cause, no one made it worse, cant do Cook and Lewis, because that involves two people, question: what are courts going to do? High court in England said he can sue EVERYONE (Fairchild exception), even if science can not prove, because any amount can cause • What should SCC do now? But for falls in over determination cases Resurfice v Hanke (2007); Zambonis • The but for test is the standard test, will be applied unless good reasons not to, Fairchild exception can be used • The material contribution test is strictly limited to cases in which two requirements could be met. 1. Impossible to prove (because of scientific uncertainty).- impossible to prove ordinary proof, cause scientists cannot prove 2. The plaintiff must establish that the defendant breached the standard of care, exposed him to the unreasonable risk of injury and that he actually suffered the injury- not enough to be exposed, actually have to get a cancer/ disease – material contribution to risk of injury Remoteness • After you prove he owed duty, and negligence, and injury, courts look at this • Was the type of damage suffered by the plaintiff a foreseeable consequence of the defendant’s actions? Easy to say, hard to apply. • The mother test: you ask yourself “what would your mother say if you propose to do what the plaintiff did” o The Wagon Mound (No. 1): CHEF ENGINEER REALEASED OIL INTO HARBOUR, OIL LIT ON FIRE due to wood and t-shirt, burnt down Sydney harbour, facts: no one ever heard of oil lighting on fire in water? Standard of care: reasonable person does not put oil into harbour, and it is reasonable to see oil will be dangerous, owe duty to people, did oil in water cause fire? Yes, it was factual cause. Was the damage by fire too remote? Was it reasonably foreseeable that it would cause a fire? NO, nobody had ever heard of this happening, mother would not give “lighting on fire” as an answer; mother test gives same result as reasonable- foreseeable test. Person doing welding whose dock was injured, in #2 it was all other people owning docks o Hughes v. Lord Advocate: three people from a postal company working in man hole in the sewer working on cable, they get hungry, and put a tent over the hole, with caution lamps so nobody will fall on, they go drink tea, and two boys fall in the hole, they take the lamps down with them, and it falls, and has methane, and explodes, family sues postal office. Was damage to children (severe burns +loss of limbs) nobody had ever heard of paraffin wax exploding, burning, yes but
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