Class 5 Answers
Answers to Class 5 Questions:
1. Why is expert evidence given in a hypothetical manner, and not directly and
particularly about the plaintiff?
If the expert were to give its opinion specifically about the plaintiff, then this
opinion would likely determine the outcome of the trial, and the expert is not the
“trier of fact”. The expert gives opinion evidence, and the judge or jury decides,
based on all the evidence, what the facts are. Think about it this way: If the
expert gave evidence about the standard of care of a surgical procedure, then
the jury must determine if that standard would be appropriate in the case before
it; whether they accepted the evidence to establish that is what the standard
actually is; whether there are special circumstances to raise or lower that
standard, etc.. If the expert evidence was too particular, the temptation of the
trier of fact is to accept an expert’s account of things and just allow that to
determine the outcome of the case. Experts are there to educate when there is a
high degree of specialized evidence and information, they are not there to
decide the case.
2. Why is it unusual to be thinking about the state of mind of the plaintiff?
We are usually thinking about the state of mind of the defendant. And even
though in negligence law we apply an objective standard – i.e. the defendant’s
intention to harm is not particularly relevant – we are still making that
determination about the defendant’s conduct. In Reibl v Hughes we have to
decide what the plaintiff is thinking or should be thinking because it relates to the
issue of causation. Did the failure to provide information cause the plaintiff to
decide to have an operation?
3. In Reibl v Hughes, why does the court reject the use of a subjective account
of the plaintiff’s state of mind?
The court says that if you used a subjective account of the plaintiff’s state of
mind, then every plaintiff, after an unsuccessful operation, would always say he
would not have had the operation, and the court would be obliged to grant
judgment for the plaintiff in every case. 4. In the same case, in my comments, I stated that I disagreed with the Court of
Appeal’s dismissal of battery as a cause of action. Can you figure out why?
Battery is an intentional tort, and is therefore actionable per se. The plaintiff
would not have to prove actual harm to succeed in his case. In a battery action,
the question really is whether the defendant applied force on the person of
another without their consent. One could easily imagine that it may be hard to
prove a person is better off without an operation, but it still seems wrong, to me,
that the defendant would suffer no liability even though he did not give the
plaintiff the proper opportunity to consent. The removal of “harm” as a necessary
element of the tort, in my opinion, allows the plaintiff to litigate the wrongful
action of the defendant. Additionally, it is certainly no stretch of the definition of
battery to allow such an action: i.e. the intentional application of force on the
person of another without their consent.
5. In the Crocker v Sundance case, why did the court determine that the waivers
signed by the plaintiff didn’t protect the defendant?
The waiver on the seasons pass lift ticket did not cover the kind of activity the
pass was for. The seasons pass was for skiing, not tubing and there were no
specific words to exclude all liability, or negligence specifically. As far as the
waiver signed to enter into the contest was concerned, this was not binding
because the waiver was not drawn to the attention of the plaintiff, nor was it
6. In the same case, do you