← Wednesday September 11, 2002
← - Lord Ordinary: Trial Judge
← - Stare Decisis: Decision stands. The system of precedents, i.e.
← - Ratio Decedendi: Reason for the decision.
← - Obiter Dicta: Things said by the way, i.e. not binding.
← Wednesday September 18, 2002
← Introduction to Tort Law
← Tort: An actionable wrong, i.e. that you can sue for.
← Cause of Action: Lawsuit
← Plaintiff (Π): Per son doing the suing (a.k.a. Appellant)
← Defendant (Def.): Person being sued (a.k.a. Respondent)
← Unintentional Tort – Negligence: These types of torts are wrongs
because the Def. didn’t consider that he/she could harm someone with
his/her actions. This makes the actions blameworthy.
← Intentional Torts – Actionable Per Se: Proof of harm is not
necessary to succeed with these wrongs (e.g. libel/slander, trespassing,
← In a civil action, the Π has to prove the case, i.e. the onus/burden of
proof is on the Π. In order to succeed with the case the Π has to prove
his/her case based on a “balance of probabilities” (i.e. 51/49) as the
standard of proof. (Is it probable that the events did take place)
← - Pleadings – In Ontario this is a written statement of claim to
set out what the Π will be trying to prove in court. ← - The Def. lawyer doesn’t really need evidence (but sometimes
uses), he/she just tries to poke holes in the Π case.
← - Some other examples of torts are as follows:
← Assault – threat (unlike in Criminal law where assault is
← Battery - intentional application of force without consent
(e.g. in cases of surgery)
← - To prove a negligence case the following five things need to be
← 1. Duty of Care
← 2. Standard of Care – i.e. accepted standard of behaviour in
← 3. Breach of Standard of Care
← 4. Causation – i.e. the wrong done by the Def. is what caused
← 5. Damages – i.e. can’t be too remote. Harm is necessary in
negligence cases (i.e. unintentional torts)
← - The questions which are addressed in a tort case include:
← Was injury to the plaintiff foreseeable to a reasonable person in
the position of the Defendant?
← Did the Def. take appropriate care to avoid the injury of others?
← Was it the Defendant’s conduct which caused injury to the Π?
← Two Conceptions of Tort Law – by: Ernest J. Weinrib ←
← - This essay tries to show the dichotomy between the
British/Canadian system and the U.S. one.
← - There is more credibility in the Canadian system. For example,
U.S. torts are all about compensation and not enough about fault.
← - There are 2 conceptions of tort law:
← 1) U.S. Loss Spreading – Spread out the cost of the loss socially.
The problem is that it doesn’t take seriously the notion that someone did
something wrong and should pay for it.
← Aristotle pointed out “corrective justice”, i.e. loss spreading. This
shows us that the concept is ancient.
← 2) CDN Loss Fixing – Fix the blame onto one person, i.e. who did
← - Common law is a collection of cases and principles found from
them. Judges are supposed to discover principles (i.e. somewhat traditional).
So, we often make legislation to deal with things. Common law is different
than legislation, i.e. legislation I made when common law is
← - Features of tort law:
← Doing and suffering are co-relative, i.e. they only make sense in
terms of each other. There is a reciprocal relationship of duty and right
← Tort law is private, i.e. in determining cases of tort law judges
shouldn’t look at outside policies because tort is about what happens in a
specific case. Note: This claim seems artificial, as outcomes do impact
← Once insurance is stuck in (i.e. collective) to private tort law, it takes
away the principles of how tort law really should be.
← Jurisprudence (i.e. Judges deciding law) for liability when insurance
is involved, often gets coloured by availability of the insurance money. This
is not how it should be.
← American realists observe in court that Judges seem to know the
outcome of cases from the beginning and just make it look like they are
trying to discover principles. However, we cannot complain that they are
making it up because then we can look at the legal framework.
← Positivist = Black letter law????????????????????? ←
← Case: Donoghue v. Stevenson
← - The Π drank some ginger beer from an opaque bottle and when
she poured more out into her cup she discovered part of a decomposed
← Plaintiff’s Claim:
← - The Π sued the Def. claiming that she suffered from a severe
state of shock and gastro-enteritis as a result of the nauseating sight of the
snail in such circumstances, and in consequence of the impurities of the
ginger beer she had already consumed.
← Defendant: ← - The manufacturer didn’t even try to deny the claim, but rather
said argued that the claim was irrelevant and that there was no claim of
action, i.e. no tort because there was no direct relationship between the Π
and the Def., i.e. no duty of care was owed. The Def. argued that the Π
didn’t really have a contract directly with the Def., claiming that it was
impossible to know the gap of time/travel/different hands between the
manufacturer and the final consumer of the ginger beer. Prior to this case,
without a direct contract there could be no action.
← - The Def. was held liable.
← - The Court of Appeal found that before now there was a bunch of
recognized relationships where duty of care exists. They had to discover if
there was a principle of law that existed that was similar to this.
← - Lord Atkin’s “neighbour maxim”: “You must take reasonable
care to avoid acts or omissions which you can reasonably foresee would be
likely to injure your neighbour.”
← Foreseeable Π – could we predict this injury in this
← Reasonable Care – reasonable and prudent care, i.e. we would
all agree with this objective analysis.
← - Here, the Def. provided a service of making ginger beer with the
hope that people would buy it and drink it. They put it in an opaque bottle
and sealed it knowing that it couldn’t be inspected again before it arrived at
its ultimate user, who would drink it. So, it is reasonable that they should
ensure that there is no poison. It’s very easy to see that a duty of care
exists. The standard of care here is that if they were going to put it in a
sealed opaque bottle, they should have inspected it first. If we accept all of
the facts (which the Def. did) then there was an obvious breach of the
standard of care. Regarding the causation, the claim that there was not a
close enough proximity is invalid because the proximity does exist in a
causal sense, even if not in a distance/time sense. Finally, there were
damages, i.e. the shock and the gastro-enteritis.
← ← Wednesday September 25, 2002
← Case: Palsgraph v. Long Island R. Co.
← - A man was trying to get on to a train as it was moving away, so
the railway employees tried to help by pushing him on, i.e. so he wouldn’t
fall. He was holding a small package, with no indication of what was in it,
and as the employees pushed him on the train, the package fell. The
package exploded, as it had fireworks in it. The explosion made scales fall,
and they landed on the plaintiff who was standing on the platform many feet
← Plaintiff’s Claim:
← - The Π sued the railway company for the injuries which she got
after the scales fell on her.
← Original Trial:
← - At the trial and the first appeal the plaintiff won. Now, we are
dealing with the next appeal.
← - The plaintiff lost at this appeal.
← - There was no duty of care owed to this plaintiff. The employees
were able to see no foreseeable injury to the plaintiff when they tried to help
the man with the package, so that he would fall. The plaintiff was injured in
an unforeseeable manner, i.e. they didn’t even know what was in the
← - Even if we were to say that the employees were negligent in the
way that they helped the man (i.e. because they damaged his property),
they were still in no way negligent to the plaintiff.
← - “The question of liability is always anterior to the question of he
measure of the consequences that go with liability” – This means that before
we think about damages we need to figure out if there was actually a wrong,
i.e. if it was foreseeable, because if it was no, then no matter how much
damaged occurred, there is no liability on the Def. ←
← Dissent (Andrews):
← - The way that the dissenting judge sees it, is that since injury
occurred there follows liability, i.e. because we all have a right to be free
from injuries and danger. We all have a duty of care to take care fir
← - This opinion rejects the foreseeability standard.
← Ratio Decedendi:
← - The risk is relational and the injury was no foreseeable to a
reasonable and prudent person. ← Case: Bourhill v. Young
← - Bourhill, a woman 8 months pregnant, was standing on a
sidewalk, as a motorcyclist negligently got into an accident and died. She
saw the accident and went into shock and had a miscarriage.
← Plaintiff’s Claim:
← - She sued the dead motorcyclist (Young) for negligently causing
← - The question before the court is if she’s a foreseeable Π, i.e. is
the miscarriage a foreseeable consequence of witnessing the accident
← This Skull Plaintiff Rule: If you commit a wrong act, then the tort-
feasor takes the victim as you find him, i.e. if you do a wrong and injure
someone because they’re susceptible then you lose. Still, this will only occur
if you know that they were susceptible…i.e. this won’t apply here!
← - The Π lost.
← - The injuries were not foreseeable because she was particularly
susceptible to experiencing shock, which couldn’t have been known. Also,
the Def. was negligent to the driver of the other car, and not the Π. ← Case: Oke v. Wade Transportation Ltd. And Carra
← Vicarious Liability: You have done nothing wrong, but your wrong is
committed through someone else.
← - This applies in some situations, e.g. master-servant (i.e.
employer-employee). If there is a tort liability by an employee in the scope
of his/her employment, then the employer is ALSO liable.
← - In this case, Carra, the driver, and employee of Wade
Transportation is being sued, as well as the company itself.
← - Carra, the Def. truck driver, knocked over a sign on the highway.
He picked up most of the debris, but left the bent post that he couldn’t
move. Carra stopped at a gas station and asked the employee there what to
do. The gas attendant said not to worry, so Carra continued on his way. It
was determined that there was no negligence when he knocked down the
sign. Later, Oke was driving on the highway and wanted to pass a slow
moving truck, so he went on the gravel shoulder where the sign had been
knocked over. He hit the post and it speared and killed him.
← Plaintiff’s Claim:
← - Carra and Wade Transportation Ltd. Were sued for negligently
leaving the sign in that manner.
← Original Trial:
← - The Def. was held liable for leaving the sign.
← - The Π lost
← - It was determined that it was not foreseeable, i.e. because the Π
shouldn’t have been driving on the gravel shoulder. It’s unusual, i.e. an
ordinary and prudent driver would not be driving where the Π was, when he
was killed. According to the majority, the Π used the road in an
unforeseeable manner and thus the injuries were too remote to hold the Def.
liable. ← - It was also said that if the truck hit the sign without negligence,
then Carra was in a position no different than any regular bystander who is
not obliged to report unsafe conditions. This point was not really argued by
the majority because the case was finished without this idea.
← - It is not necessary to foresee the precise accident, just enough
to realize that something could happen. Someone could have needed to pull
over (i.e. in an emergency) and then this could have easily happened.
Carra’s truck was there, so why wouldn’t it be reasonably to assume that
others would be there too?! Also, by the fact that Carra cleaned up the
debris and asked the gas attendant what to do, shows that he recognized
potential danger. ← Case: Moule v. New Brunswick Electric Power Commission
← Strict Liability Rule from Rylands v. Fletcher: In this case a guy
filled up a reservoir with water and it ruined the coal mine next door. The
guy with the reservoir argued that it was his land, so he is not liable,
however it was found that since he was doing something unnatural with his
land he was responsible for every consequence without having to go through
negligence reasoning. This is called strict liability. No matter how careful one
is, if the act is inherently dangerous the person is at fault.
← - This doesn’t apply in our case.
← - The Def. is a power company who has high voltage wires in
towers. There is a tree nearby to a tower and the company took care to clear
the branches near the wires to 25 ft. Another tree even farther away was
also cleared to 13 ft. Local children nailed boards to build a bridge
connecting the two trees so that they could walk up high on the closer maple
tree. A boy stepped on a dead branch and fell, so he grabbed the wires and
was electrically shocked.
← Original Trial:ol
← - It was said that the sequence of events were foreseeable so
damages were granted to the Π. The judge said that since trees are alluring
to children, the power co. should have removed the whole tree. The power
co. had obviously recognized that they had a duty of care, since they cut
down the branches in the first place.
← - On appeal the judgment was reversed, so the Def. was not held
← - The majority didn’t agree that the sequence of events could have
been foreseen. They said that the Def. took sufficient precautions to protect
against foreseeable problems.
← ← Case: Amos et. al. v. New Brunswick Electric Power
← - There was a tree next to a man’s house and wires above it. The
man’s nephews were having a contest to see who could climb the highest
and the fastest, and the youngest kid made it to the top. Since the tree was
in full bloom the wires were not visible, and as the kid climbed the tree
swayed and touched the wires, and the boy was electrically shocked and
← Original Trial:
← - The Π succeeded because the tree was an easily climbable one,
so it was determined that the power co. did not take proper care, since we
know that kinds climb trees.
← First Appeal:
← - On the first appeal the judgment was overturned and the Def.
won because it was said that the judges felt bound by the Moule case and
thus could not hold the power co. liable.
← Final Ruling:
← - The appeal judgment was reversed again, and the Π succeeded.
← - In the end it was decided that the facts were in fact different
than the case of Moule, and thus based on the original reasoning that the
power co. did not take reasonable care, the Def. lost. ← Wednesday October 2, 2002
← Case: Bolton and Others v. Stone
← - A batsman at a cricket club hit a ball over the fence, which hit
the Π standing 100 yards away on the highway.
← Original Trial:
← - The Def. was held liable
← - On appeal, the judgment was reversed and the Π lost (i.e.
← - Is foreseeability the only issue, or can we also consider how
likely the chance of the occurrence?
← - A cricket ball went over the fence only 6 times in 30 years (i.e.
once every 5 years) and since it was not such a busy highway there are only
periodically people on the road. Based on this, do we have to say that since
there is a possibility of injury then the Def. is liable, or o we get to think
about the likelihood and the likely severity of the injury?
← - Since the damage is so slight (i.e. barely foreseeable) it is
reasonable that the Def. did not do something to prevent against the
← - Note: This does not mean that this would be the same judgment
in every case, but only here, based on the height of the fence, the distance
to the road, the amount of traffic, etc.
← ← Case: Paris v. Stepney Borough Council
← - A labourer with one good eye was injured when a metal chip flew
from a rusted U-Bold as he hammered it, attempting to remove it from the
rear axle of a car. The labourer was struck in his one good eye.
← - Was there an onus on the employer (Def.) to make the
employee wear safety goggles?
← Original Trial:
← - Since the employer knew that the employee had only one good
eye, the foreseeable severity of an injury was so high that he should have
provided and insisted on safety goggles. The employer should have had a
higher standard of care in this circumstance.
← - Two factors to be considered were established here:
← 1. Likely severity
← 2. Likelihood of injury
← First Appeal:
← - The judgment was set aside and the Π lost.
← Second Appeal:
← - The judgment was restored from the original trial, and the Def.
was held liable for damages.
← ← Case: McGhee v. Nat. Coal Bd.
← Joint tortfeasor (i.e. wrongdoer) – This is a principle of law that if
more than one party caused the damage they are jointly liable. For example,
if two people shot at someone and he was killed, it doesn’t matter which
bullet actually hit and killed him.
← Novus Actus Intervenus – An intervening act that caused injury,
which interrupts the chain of events. This can be raised by the Def. to say
that what he/she did didn’t cause the injury directly.
← - A man who was normally a labourer in the pipe kilns was
transferred to the hotter and dustier brick kilns. He eventually got severe
← Plaintiff’s Claim:
← - The Π alleged that he contracted the dermatitis because of the
dusty and sweaty conditions, for which the employer did not take proper
care to avoid by providing showers so that he could clean himself right away
after work (i.e. before biking home all sweaty and dusty).
← - Dermatitis can be caused by irritation to the skin, etc. but
medically they don’t really know the cause.
← - Did the Def. know that a shower would help? Yes, evidence
shows that a nearby factory had showers.
← Original Trial:
← - The Π lost. Thdermatitis could have been caused by 2 things:
getting dusty, and/or cycling home. We can’t really know which one caused
it, i.e. so we can’t really prove causation. Based on this, we can only show a
material increase in risk caused by the Def., but not a material
← Appeal Ruling:
← - The appeal was allowed and the Def. was held liable. ←
← Rationale (Lord Reid):
← - We need to take a broader view of causation, i.e. since the Def.
materially increased the risk of injury we can equate that the materially
contributing and thus hold them liable.
← Rationale (Lord Wilberforce):
← - For his proof, the Π just has to prove that the Def. was wrong
and thus materially increased the Π risk, thus causing the injury. Once the Π
proved this the burden of proof can be shifted to the Def. to prove that this
was not true (i.e. which he could not do).
← - Basically, Lord Wilberforce makes a distinction (unlike Lord Reid)
between materially increasing the risk and materially contributing to the
injury, but in the end the appeal is still allowed by changing the burden. ← Case: Lauritzen v. Barstead; Wawanesa Mutual Insurance Co.,
← - The Π asked the Def. (i.e. his foreman) to drive him to make a
call. The foreman got really drunk and asked the Π to drive. The Def. wanted
more beer and told the Π to go get more, but the Π said no, to which the
Def. responded by punching him. The Def. continued by trying to make the
Π turn the car and the car spun out off the road. The Π got out of the car
and the Def. put the car into reverse, causing it to fall into a ditch. The two
decided to sleep in the car for the night (with the keys in the ignition so the
heat could stay on) and look for help in the morning. Meanwhile the Def.
woke up and tried to drive down the river, but bumped into something,
waking up the Π. The Π hiked in search of help and was found by a farmer
who brought him to a hospital where he had to get some amputations
because of severe frostbite.
← Plaintiff’s Claim:cN
← - The Π wanted damages for his injuries of the amputations and
well as for the fact that his wife left him, i.e. because she did not want to be
with a crippled man.
← Defendant’s Claim:
← - The resulting injuries to the Π were the Π’s own fault because he
shouldn’t have left the keys in the ignition and he shouldn’t have walked
outside in the freezing cold weather. The Def. used a claim of Novus Actus
← - The Π wins for the damages of the amputations, but not for the
claim about the wife.
← - The Def. claim of novus actus intervenus does not work because
in truth, everything that the Π did was what he had to do to save them from
the situation that the Def. put them in. Based on this, everything he did was
reasonable and it was all one long chain of events. ← - The Π was not awarded damages for the unforeseeable event of
his wife leaving him because this damage was too remote.
← ← Wednesday October 9, 2002
← Damages – monetary reward
← Compensatory damages – to replace what was lost, i.e. to put
the Π in the position that he/she would have been in had the tort not
← General damages
← - Pecuniary damages – money, which needs to be estimated
(e.g. potential lost wages)
← - Non-pecuniary damages – hard to put a price on (e.g. pain
← Special damages – easily quantifiable, i.e. with receipts
← Punitive damages – to punish for outrageous conduct
← Exemplary damages – given to make an example for
outrageous conduct. These are big in the U.S. (e.g. McDonald’s coffee case).