Lecture 3 – Tort and Contract Law
Thursday, January 23, 14
only the cases on the table of contents you will be responsible for
Nichols vs. WalMart
• British Columbia Supreme Court – trial court – but this is an appeal
• We have a trial court hearing an appeal – because it’s a small claims court
decision at trial (which are at the lowest of the spectrum when it comes to the
• When that decision is appealed it gets appealed to a regular trial court
• Them hearing this appeal – doesn’t elevate their status at court level
• The judge in the appeal – identified the correct legal principle – is it a lawful
citizen arrest? Then it is not unlawful imprisonment
1. They have to believe the crime is committed, (subjective part) and
2. The belief must be reasonable based on the facts
• In this case – was that two part test satisfied? No, the second part is, but the first
part is not. He didn’t believe the guy committed the crime, in his own testimony
he said he didn’t think the guy did it, he was just detaining him for investigation.
It was a reasonable belief, but the test was not satisfied.
• It was unlawful imprisonment
o Raises a point for us – judges apply the law to the facts, they do not make
their decisions based on whether they like someone
Donoghue v. Stevenson
• It’s a House of Lords decision
• Highest court in England
• Back in 1932 – it was the highest court of law in Canada – you could appeal a
court all the way up to this level in England at the time
• The decisions of the House of Lords are no longer binding on Canada – however,
it is very persuasive – where all our law originated. The principle it stands for is,
because it has been consisted. Represents the state of binding authority in Canada,
although it is not binding itself.
John v. Flynn
• Drinking and driving and injures John (plaintiff)
• John also sues Flynns employer, makes an argument of vicarious liability
• When does vicarious liability apply – when he is performing his job – but he
wasn’t performing his job • But he says it doesn’t matter you owe me a duty directly, you could stopped this
o What a reasonable person would have done – a reasonable person would
have foreseen danger, and should have stopped it
• Court says there is no duty of beyond the point of Flynn getting home safe,
so if there was a duty of care, it certaintly ended when he got home safe
• Statement by the court that the result might have been different – if he had injured
John on the way home instead of when he went back home – IF THE FACTS
WERE DIFFERENT – we could have come to a different conclusion. But that’s
not this case.
• The law regarding drinking and driving are changing – people are becoming less
tolerable – they are becoming less approving of the injuries in the outcome
• We see judges posing more liability in civil cases
• Slowly changing to reflect social norms
Arndt v. Smith
• Mother had chicken pox – sued doctor for negligence, namely, failure to warn her
of the risks to the fetus from her chicken pox
• SUED FOR : negligence. Claimed for the costs of rearing the disabled child.
• Supreme Court of Canada said the baby would have been had anyways
o The outcome would have been the same
Mortimer v. Cameron
• Kids were play fighting
• But the plaintiff sued, the building, the city, and his friend
• His sues his friend, the court says there was a duty of care, unreasonable
behaviour but in order for their to be causation, the injuries sustained must have
• The distinction here is subtle, a reasonable person would see broken bones as the
result of a play fight, the type of injury here is defined by the judge by
catastrophic injuries because the landing didn’t give way
o The judge says that is not unreasonably forseeable
Poirier et al. v. Murphy et al.
• Young man who is performing something to impress female
• One is going to hang from rafters and the other is going to drive at him – using
1. Does the maxim of volenti non fit injuria apply to the circumstances of
2. If not, was there contributory negligence?
3. Damages • Volenti non fit injuria – the defendants submits the plaintiff knew, or ought to
have known the real risk involved in carrying out the stunt and that when he
agreed to do it, he impliedly exempted the defendant from liability
• However, the Plaintiff did not give such approval of the second run
• Thus Poirier had not assumed the physical risk of the second stunt and the defence
of volens does not succeed.
• In the books opinion, they were equally negligent in the first run, but in the
second run twothirds blame for Murphy and onethird blame for Poirer.
• We apply an objective standard
• Gives us more predictive ability
• Once a lease is signed, its binding. More certainty, order your affairs better
• Objective standard gives you accuracy
Campbell v. Sooter Studios Ltd
• Offer and Acceptance Offe
• In this case they didn’t have an objective standard
• Is it really reasonable to read what you sign?
o Three common agreements including phone contract – haven’t read it
o How reasonable is it to believe they have read them?
o The normal test for determining whether the parties have reached an
agreement is to ask whether an offer has been made by one party and
accepted by the other.
o Subjectively, there was no true meeting of minds, but objectively, there
was and that is the test…
o The judge awarded the plaintiffs an amount for a share of the taxes and the
cost of repairs to a plate glass window
o The plaintiffs has been partially successful but the greater victor has been
Mlodzinska et al. v. Malicki et al.
• Offer and Acceptance – Revocation of Offer
• Trial court – but this is appeal
• In this case, it is an appeal of an order not judgment
o A motion is a request for procedural remedy – made in the context of a
lawsuit in a trial
o One part says I make this motion and ask you for