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Western University
Philosophy 2080
James Hildebrand

1 Case Outcomes for Philosophy 2080 Majority and Dissenting All Levels of Court Tort Law Intro M‘Alister (Donahue) v. Stevenson – Snail in ginger beer House of Lords – Plaintiff Appealing – Appeal allowed  Lord Atkin o Must not injure your neighbor  Persons who are so closely and directly affected by my act that I ought reasonably to have them in mind as being affected when I am thinking about the acts or omissions which are in question. o Manufacturer owed a duty of care to her, which was breached, because it was reasonably foreseeable that failure to ensure the product's safety would lead to harm of consumers.  Created the modern concept of negligence, by setting out general principles whereby one person would owe another person a duty of care.  Duty of care not owed to the world at large, but only your neighbor.  Opaque bottle made the relationship between manufacturer and consumer very close or proximate. o Not possible to examine contents of bottle between manufacture and consumption.  Arguably first successful lawsuit of its kind—foreseeable plaintiff test/duty of care had not been defined by law prior.  Perfect example of common law in action.  Loss should not be too remote from the conduct that has allegedly been its cause. 2 o ―Proximity‖ taken into consideration—not necessarily in time or distance, but as such close and direct relationships that a person or property could be injured. Duty of Care Palsgraph v. Long Island Railway – Explosive package at train station Trial Decision for Plaintiff New York Court of Appeal – Defendant Appealing – Appeal allowed  Is the injury foreseeable?  Cardozo, C.J. o No way that the guard could have known that the package wrapped in newspaper was dangerous, and that pushing the passenger would thereby cause an explosion. o Without any perception that one's actions could harm someone, there could be no duty towards that person, and therefore no negligence for which to impose liability o Act did not pose foreseeable danger to any person o No duty of care between defendant‘s employee and plaintiff o Not a willful wrong towards the plaintiff o Risk reasonably to be perceived defines the duty to be obeyed o Question of liability always comes before assessment of damages; no liability, no damages. o Whether the guard had acted negligently to the passenger he pushed was irrelevant for her claim, because the only negligence that a person can sue for is a wrongful act that violates their own rights  Andrews, J. (Dissenting) o Foreseeability requires an almost prescient knowledge; one should not have to foresee exact nature of mishap. o If there is damaged cause, something wrong was done. 3 o ―Proximate cause‖ is a limitation of the practical utility of law o The conduct is wrong because the injured plaintiff is an innocent person. o Act was wrong to the world at large  This concept of foreseeability in tort law tends to limit liability to the consequences of an act that could reasonably be foreseen rather than every single consequence that follows  Landmark in tort law that helped establish the concept of proximate cause, a limitation of negligence with respect to scope of liability.  If the harm is not willful, then the plaintiff must show that the resulting injury resulted from a danger inherent to the act. o ―Wrongful‖ injury not applied to plaintiff in this case.  Traditional tort law case; no fault based on no foreseeability. o Foreseeability test used to determine where to stop defendant‘s liability.  Causation alone = insufficient; must be foreseeability. 4 Bourhill v. Young – Stillborn child after witnessing car accident House of Lords – Plaintiff Appealing – Appeal denied  Is the kind of injury foreseeable?  Lord Wright o Defendant owed no duty to plaintiff, for she was a bystander o Defendant was negligent but not in relation to plaintiff o Nervous shock suffered by plaintiff is not a foreseeable injury o Thin-skulled plaintiff rule only applies after liability is established  Qualifies the notion of foreseeability to include the ―kind‖ of harm.  Establishes important boundaries on the scope of recovery for bystanders, or those uninvolved with physical harm. Oake v. Weide Transport (Vicarious liability) – Impaled by damaged sign Trial Decision for Plaintiff Defendant, Carra, was negligent in not removing or reporting the damaged sign. Manitoba Court of Appeal – Defendant Appealed – Appeal allowed Plaintiff Cross-Appealed for increased damages – Cross Appeal denied 5  Miller, C.J.M. o No negligence when defendant hit the signpost o Surrounding signage and layout of the road indicated that an ordinary reasonable driver would not be driving on the shoulder, where the plaintiff was driving. o As plaintiff used road in a very unusual manner, the kind of accident that occurred was not foreseeable; too remote.  Plaintiff was driving negligently; defendant was not. o ―Freak accident‖; ordinary person would not reasonably foresee plaintiff attempting to pass on gravel divider and getting in the subsequent accident.  Freedman, J.A. (Dissenting) o Should not be necessary to see precise nature of accident in order to find liability. o When the defendant cleaned up debris and asked attendant about reporting the issue, it indicated that he saw foreseeable potential danger. o Negligent in leaving the sign down, and therefore negligent for the resulting accident—dissent rejects that defendant was in the position of any bystander.  Even if you are under a legal duty to take responsibility of your negligent actions, a failure to act to prevent future harm is not negligent if the type of harm that occurred was not foreseeable. 6 Moule v. New Brunswick Electric Power Commission – Precautions taken Trial Decision for Plaintiff Trees are alluring to boys, foreseeable they would climb, and possibly fall. Reasonable person would foresee danger and remove tree altogether. On Appeal – Judgment Reversed Supreme Court of Canada – Plaintiff Appealed – Appeal denied  Ritchie, J. o Facts disclose an unexpected sequence of events; the injury and fall were not foreseeable. o Defendant took precautions to avoid foreseeable accidents that were sufficient. 7 o Because child had to fall in order to touch the electrical wire, the precautions taken were sufficient enough to protect anyone standing in the tree from the wires. Amos v. New Brunswick Electric Power Commission – Precautions not taken Supreme Court of Canada – Plaintiff Appealed – Appeal allowed Defendant Appellant allowed in Court of Appeal - Considered bound by Moule case  Spence, J. o In Moule, defendant had trimmed all the trees, making the accident and circumstances unusual and not foreseeable. o In this case, the tree limbs were not trimmed, the tree was close to the wires, the boy did not have to fall in order to touch the wires, and simply had to climb in order to reach them. o Injury to plaintiff was foreseeable, and the defendant took no steps to prevent. Standard of Care Bolton et al. v. Stone – Cricket ball hits passerby Trial Decision for Defendant, Appeal Decision for Plaintiff House of Lords – Defendant Appealed – Appeal allowed  Lord Reid o Balls hit over the fence once every three seasons. o Residential roadway; not a lot of traffic. o Foreseeable that the accident might happen, but the risk of damage to the person on the road was so small that a reasonable man 8 would have thought it right to refrain from taking costly steps to prevent the danger. o The likelihood of the injury was quite small, and the social utility and cost to avoid the injury were quite large.  Therefore, the defendant did what any reasonable person would do. o A reasonable person must not create a risk that is substantial; this was not a substantial risk.  Established that a defendant is not negligent if the damage to the plaintiff was not a reasonably foreseeable consequence of his conduct.  When a risk is sufficiently small, a reasonable man can disregard it.  Foreseeability is not the only answer—even the most remote possibility of an injury would attract liability: *Standard of Care Test 1. What is the likelihood of injury? 2. What is the likely severity of injury? 3. What is the cost of avoiding the injury? 4. What is the ―social utility‖ of the conduct in question? Paris v. Stepney Borough Council – Workman loses good eye Trial Decision for Plaintiff, Appeal Decision for Defendant House of Lords – Plaintiff Appealed – Appeal allowed Court or Appeal set aside original judgment; negligence not established  Lord Normand 9 o Employer knew that plaintiff had only one good eye; seriousness of the injury was a factor that should have been considered. o Seriousness/likelihood of injury (large) v. cost to avoid injury (small) o Failure to supply protective goggles constituted a breach of his duty of care to owed to his employees.  Affected the concept of ‗standard of care‘ in common law. Causation 10 McGhee v. National Coal Board – Dermatitis on coal worker House of Lords – Plaintiff Appealed – Appeal allowed  Was the defendant‘s negligent conduct the cause of the plaintiff‘s injury?  Expectations regarding precise explanations may be too onerous a burden on the plaintiff; this case deals with this exact issue.  Lord Reid o Although medical science cannot determine the precise nature of the injury, it is known that washing will help to prevent it. o Longer exposure = greater risk of injury. o Riding home without washing added materially to the risk of injury. o Rejects the argument that materially increasing a risk is different from materially contributing to it. o If a plaintiff can prove there is a material increase in risk due to the negligent conduct of the defendant, and the injury actually occurs, then this will be treated as if the plaintiff has showed causation.  Lord Wilberforce (Concurring) o Defendants at fault for not providing showers.  Washing is the only preventative measure and the defendant‘s knew about this. o Washing is standard practice in the industry. o Accumulation/exposure to dust and failure to wash are the only two known causes; defendant is at fault for the latter. o If plaintiff shows causation, it should be up to the defendants to prove that their actions did not cause injury. o Creator of risk should have foreseen consequences, and because they did not, should bear the consequences. 11  In cases where there are two or more contributing factors to an injury— one of which is a breach of duty and one of which is not—then a plaintiff can recover as long as he can show on a balance of probabilities that the defendant‘s negligence materially contributed to the risk of injury.  Where a breach of duty has a material effect on the likelihood of injury then the subsequent injury will be said to have been caused by the breach.  Bonnington Castings Case o Two known material causes o Source of each cause liable for the injury. o Different from McGhee case because we don‘t know the cause of dermatitis.  Advances in technology have since raised the standards for plaintiffs to prove their case, especially those based on causation. 12 Remoteness of Loss Lauritzen v. Barstead – Drunken foreman‘s car gets stuck Alberta Supreme Court - Judgment for plaintiff  Was the injury too remote from the action for the defendant to be held liable?  Kirby, J. o Defendant was negligent in:  Grabbing the wheel from the plaintiff  Driving further from safety  Drinking before driving  Backing the car up improperly, resulting in car rolling into ditch. o In response to the argument that plaintiff‘s actions interrupted original chain of events:  Plaintiff was only doing what he could to fix things and help the situation. o In the case of causation, defendants aren‘t liable for ALL CONSEQUENCES, but are liable for PROBABLE CONSEQUENCES of their actions; a reasonable man would have foreseen consequences stemming from defendant‘s actions.  Cold night, slippery roads. o Liability determined by foreseeability. 13  No claim for loss of consortium with plaintiff‘s wife, who moved away after 26 years of marriage because she didn‘t want to live with a crippled man. o Not a foreseeable consequence. o Too remote from the act originally complained of. Quantum of Damages Andrews v. Grand & Toy – Car crash leaves young man quadriplegic Trial Decision for Plaintiff Will require constant care for his entire life; only 21. Still has normal mental functions; is aware of the injury he has sustained. Defendant wholly liable; plaintiff‘s evidence accepted regarding damages. Appeal Decision for Defendant Court of Appeal reduced award, and said homecare was the most expensive alternative; should not be awarded. Said plaintiff wanted homecare solely because it was the most expensive. Should live with his mom or in government hospital; an almost free alternative. May spend all his money on something else. Defendant‘s ability to pay plaintiff was considered in the C.A.‘s assessment of reduced damages. It is unjust to expect the defendant to pay for the next 45+ years of the plaintiff‘s life. 14 Supreme Court of Canada – Plaintiff Appealed – Appeal allowed in part – 75%  Pain and suffering damages were notoriously low in Canada before this case, in which a cap was set for non-pecuniary losses.  Dickson, J. o Homecare is not a luxury; Andrews should be awarded homecare, as justice requires that he should be returned to the condition he would be in had the accident not occurred. o Andrews would care for himself at home had there been no accident—would not be living with his mother. o Court of Appeal perspective is entirely from defendant‘s point of view. o Defendant‘s ability to pay has never been regarded as a relevant consideration in assessment of damages. o What Andrews chooses to do with the money is not the court‘s business, nor can the courts do anything about it (would not have been limited in spending his earnings had he been able to work). o Sets $100,000.00 as the upper-limit of non-pecuniary loss in cases like this for the reason that it is constantly rising and needs a cap.  Uses United States as an example of what could happen is a cap is not set.  Full compensation is the court‘s primary concern in cases of severely injured victims.  Damage awards should serve a useful function.  Test to determine non-pecuniary loss—amount of money that will provide the plaintiff with some solace or comfort in replacement of his loss of happiness. 15 Duty to Rescuers Matthews et al. v. McLaren—Horsely et al. v. McLaren Ontario Court of Justice – Judgment for plaintiff  Lacourciere, J. o Defendant was negligent in attempting the rescue; bow on method was the proper way. o Wrongful rescue caused Horsely to dive in and attempt the rescue. o Wrong that imperils a life is also a wrong to the attempted rescuer of that life. o Horsely‘s conduct was reasonable in the circumstances—he was a foreseeable plaintiff; not futile attempt or wanton exposure to danger. 16 o McLaren‘s conduct was negligent, caused a situation of peril, and thus caused Horsely to dive in and die. Matthews et al. v. McLaren—Horsely et al. v. McLaren Ontario Court of Appeal – Defendant Appealed – Appeal allowed  Schroeder, J.A. o Captain or master of vessel has a duty in common law to ensure the safety of his passengers. o Defendant was not negligent and did not cause Matthew‘s original difficulty. o Experts said nobody should ever jump in the water—Horsely negligent in this regard. o Standard of ―bow on‖ textbook protection required by hindsight was too high.  Defendant‘s conduct was a reasonable attempt to rescue in this case of emergency. o Defendant did not make Matthew‘s situation any worse, and therefore is not liable. o Defendant‘s actions did not cause situation of peril to begin with. o Not foreseeable that rescue attempt would cause others to jump into fatally cold waters. o Error of judgment on defendant‘s part, not negligence.  Jessup, J.A. (Concurring for different reasons) o Reference to Shipping Act; says it must extend to common law. o Duty to McLaren to effect Matt
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