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Philosophy of Law Notes – Tort Law.docx

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Western University
Philosophy 2080
James Hildebrand

** Cases & Essay Readings Philosophy of Law Notes – Tort Law General Introduction  Law: Entire body of state-enforced or legal rules (state has “power”)  Acquiesce the use of force – delegate enforcement of laws to persons empowered by the state  Democracy – voting as to who has authority & what authority they have Common Law  Judge-made law – set of principles that judges, over time, have developed collectively – based on decisions of particular cases of the past  Entails the body of legal principles that have evolved in the English common law system over 700 years  People expect a “reason” for decision over a case o First hurdle of seeing a decision as principled or with having a rational basis o Reason should be rational  Not Arbitrary o Don’t want a judge to decide a case based on amicability – treat everyone fair and equal  As body of principles (central location of all decisions judges have made) became established – courts developed a system of “case precedent” or “stare decisis” – decision stands o When a judge decides a case where facts are similar to a case that has already been decided – judge must decide in the same way o “Binding” on later judge – must follow that decision Binding Part: Ratio Decedendi  Only part of the decision that is “binding” is the reason for that decision  Example of Legal Principle  When a person is attacked & has reason to believe that he is in danger, he is allowed to take whatever steps are reasonably necessary to repel the attack – if steps are reasonable then regardless of extent of injury to the attacker – victim cannot be held responsible Not Binding Part: Obiter Dicta  Everything else in the decision that is not binding – “things said – by the way”  Not easy to distinguish between ratio decedendi and obiter dicta – takes years for later courts to decide what the ratio is  Recorded, binding decisions form the basis of the body of common law  In Canada – common law continued to 1949 – but even though decisions are not binding now they still provide persuasive arguments that courts rely on  Common law jurisdictions presently: USA, UK, Australia & New Zealand  Not statute law o Statutes are written laws that are enacted by elected legislative o Only government legislators have the power to “enact” laws o Duty of courts is to interpret and apply common law and to interpret and apply statute law o Courts interpretation on statute will be binding on future cases – courts decision as to how a statute is to be interpreted and applied also forms part of common law  Decisions only binds courts “below”  First place where a court makes a decision is “trial court” - Ontario Superior Court of Justice o Court of original jurisdiction o Judge or jury (triers of facts) hears evidence, decides facts & applies law Appeals  Case precedent or stare decisis is solely reliant on appeal decisions  Appeal: o When a party to a suit disagrees with the decision of the court & can find a mistake in law in that decision to support an appeal – Courts of Appeals  Can only appeal on a point of law – appeal courts do not hear evidence of witnesses (triers of fact – are in the best position to make decisions on credibility of evidence & witnesses)  Next level above Ontario Court of Appeals is the Supreme Court of Canada o Bind trial courts of every province & appeal courts of every province  Courts of appeals are made o 5 judges in provincial courts of appeal (many judges but max 5/case & min 3/case) o 9 judges in Supreme court of Canada (only 9 and will sit on every case)  Generally follow past decisions but are not bound to do so & occasionally reverse themselves o Reversal does not affect previous cases  Majority o Decision of the court determines the outcome of the case o Must be the opinion of majority of the judges sitting on the appeal o Ratio of the majority decision is binding on lower courts  Concurring o Sometimes judges agree or “concur” with the result but add their own reasons because they feel they have some important reasons o Help shape law in later cases  Dissent o Judges sometimes disagree with the reasons & outcome of the majority decision o Does not determine outcome of the case o Importance  Process of reasoning – reasoning should be as accessible as possible – debate is robust  Philosophy of law is understanding the debate that produces the law Public Law  Body of law where we say the state has interest  Ex. Criminal law o Crime is an act that is considered an offence against the state as well as the victim o State will prosecute accused person even if victim does not bring the case forward  State pays for investigation & prosecution Private Law  Body of laws that deals typically with resolving disputes between private individuals  In Canada – private law suit means the person injured must put the case forward or “bring the action”  Private action is funded by parties to dispute – the litigants  Person in private law suit or action must have personal stake in the suit in order to be involved o Ex. you can’t sue your neighbors contractor for injury to the neighbor  Concurrent Liability: person can be charged criminally and still be sued civilly  Ex. O.J. Simpson Case o Found “not guilty” in criminal law  State has onus of proof – standard of proof required to convict the accused “beyond a reasonable doubt” o Found civilly liable for wrongful cause of death  Plaintiff (person doing the suing) has onus of proof – standard of proof required to win case based on balance of probabilities (if it is 51% likely that Simpson caused the death – plaintiff would win) o If OJ was convicted in criminal proceeding – he would not be able to defend civil action by saying he commit the act  If convicted criminally – it constitutes the crime & the tort of wrongful death  Cannot challenge conviction resulting from criminal case in collateral proceeding Tort Law  Private law of “actionable wrongs”  Actionable o Something recognized at law as something you can sue for o Action = law suit (either civil action or private)  Person injured may have “cause of action”  Title of case is called “style of cause” o Tells public who the parties to the dispute are & if it’s a public or private case  Provides compensation to the plaintiff at the cost of the defendant  In order to find liability – there must be some wrongdoing  Only finds liability where there is fault – fault means wrong or blameworthy conduct  There also must be intension to do the thing that is wrong Intentional Torts  Where tort law started  Trespass: intentionally entering on the lands of another without permission  Libel or slander: saying something to someone other than the plaintiff that, if believed, would harm the plaintiff’s reputation  Unlawful confinement: confining someone without lawful excuse or justification  Assault: threat of violence (different from criminal assault which is battery in tort law)  Battery: intentional application of force on the person of another without their consent (criminal law calls this assault)  Conversion: intentional taking of property of another without their consent (criminal law calls this theft) Actionable Per Se  Rule: intentional law are actionable per se  Actionable: conduct recognized by law as something that you can sue for  Per Se: in itself or intrinsically – plaintiff does not have to show actual harm or injury in order to succeed in law suit action o Ex. person could slander another person & even if no one believed it – plaintiff could still win o If actual harm did occur – form part of the case but is not required  Law recognizes the conduct of intentional torts as inherently wrong whether harm did actually occur Unintentional Torts  Tort law requires fault in order to impose liability  Ex. Borrowing a lawnmower from neighbor o If something happened to it while it was in your possession and it was broken & you did nothing “wrong” – law does not require you to pay for damage o Wrong requires fault or blameworthy conduct to be called “wrong” – no fault = no liability o If the description of intentional torts is accurate – then how can law impose liability?  Even though conduct is “unintentional” – law can declare it a wrong & can be sufficient to be a tort  “Fault” or wrongfulness of the conduct in question is based not on what the defendant knew about what he was doing but what he should have known o Even if the defendant could say he didn’t mean to hurt anyone or didn’t know his actions could cause harm – law says that he should have known that his actions could cause injury  Fault is based on the notion that the defendant lacked the intention to act in such a way that he would avoid injury – lacked the intention to be careful  Are not actionable per se - harm or injury is necessary for the tort Negligence  Presumes that a person was careless in their actions & by being careless caused injury/harm to others  Elements of negligence action: o Duty of care o Causation o Standard of care o Damages o Breach of standard of care Weinrib Essay  USA – loss spreading o Cost of injury is overwhelming to plaintiff – therefore law should simply make the manufacturer an insurer for consumer – should be spread among public as cost of doing business o Sees businesses and insurance companies as an efficient way to “spread” the loss among more people – liability is seen as a tax on business acitivity (cost of doing business)  UK – loss fixing o Insurance should have no impact or relevance – should be on the tortfeasor o Task of courts remains that of loss fixing not loss spreading o Finding out whose fault it is & deciding who will pay & whether compensation will be granted based on fault/responsibility  Liability insurance: comes after liability - if no blameworthy conduct of tortfeasor/defendant - no liability  Damages or loss only comes after question of liability o If insurance proceedings is a factor – cant decide that plaintiff is at fault because there is money  Emphasis on loss spreading takes away traditional emphasis of loss fixing – distorts principled basis of negligence law  Features of tort law o Doing and suffering are correlative  Begins with potential for harm in what the defendant does and is completed with the harm the plaintiff suffers  Not complete without the other in eyes of tort law o Justifications of tort law must be correlative  No individual goal of deterrence is irrelevant as it only affects the doer  No individual goal of compensation - as it leaves out the doer o Justifications yield a normative “structure”  Mirrors correlativity of doing nad suffering  Plaintiff has a right against defendant that is correlative to defendant’s duty to the plaintiff  Reciprocal o Duty violated is also a right owed to the plaintiff  Actor’s duty is owed to the potential sufferer from the action – correlated to sufferer’s right – breach of duty is a violation of sufferers right o Private right  Plaintiff can sue to have wrong set right – not for public but for plaintiff specifically o Plaintiff is only entitled to remedy that the dependent is obligated to give  Damage is not the blending of independent goals or incentives  Not due to the deterrence of carelessness  Not due to the compensation of injury o Adjudicative function  Courts task is to specify what the normative dispute resolution requires  Court cannot impose on the relationship an independent policy of its own choosing  Court intervenes at the instance of wronged party in order to undo the wrong  Not utilitarian o Private law is defined by the relationship between the plaintiff and the defendant and the insurance company is not involved in determining liability  Invoking of insurance undermines conception of tort law – draining parties relationship of its immediacy o Attention is no longer confined to the interaction of doer & sufferer o Jurisprudence takes on social policy aspect – bad thing o Insurance availability becomes a measure of plaintiffs claim o Loss spreading, general deterrence & redistributing wealth become goals  Legislation is different from adjudication o Legislation  Public policy, specific, detailed, debated & expression of political will  Responds to and creates new situations o Adjudication  Resolution of particular dispute  Decides cases on existing, previously known legal principle  Tort law cannot pertain to a single individual – doer & sufferer  Private – governess of interaction is intelligible without recourse to legislative instrumentalism  Private law is not instrumental – works out parties’ interaction without orienting their relationship toward extrinsic purpose (not legislative – court does not direct relationship to make a policy of their choosing)  Legal realists: they say judges do what they want to further policy and pay lip service to principle by looking and cases and interpretations to rationalized a predetermined outcome  They would be wrong if pre-existing principles that determine outcomes are actualized as positive law o Judges are discovering principle not making it up o Corrective model is a moral judgment between parties involved  Positivist: black letter law o Says that people have no rights except those written by the entity with authority to write laws o Laws are only what is written and are exactly written – whether fair or not o Legal realist say that judges’ are inventing rules through rationalization o Wienrib thinks that common law is positivistic in the sense that it relies on and through application and interpretation helps to establish settled principles of law that are “written” in the judgements of the courts o Criticism of legal realists accusation – justification for maintaining a traditional UK/Canadian style conception of tort law o Wienrib sees insurance driven model as consistent with legal realist critique of law o Wiebrib calls traditional tort law positivistic because laws already exist & are disocerved – there is an existing inductive order/foundation of reason – defeats the idea that judges are just rationalizing pre-determined outcomes  Aristotole saw 2 different approaches to law o Corrective – private law – tort law o Distributive – for the greater food, public – mediated interaction & utilitarian  Kantian Notion o Private law as based on nature of humans as self-determining, responsible for their actions o If people are free-willed and self-determining – individual responsibility does not entail policy objectives  General thoughts o American Approach  Judges in the US are trying to help where conservative legislatures have failed to provide for consumers and/or injured & likely uninsured parties  Concerned with compensating injured plaintiffs & not concerned about apportioning fault  Believed that businesses or insurance companies can bear cost of compensation  Ex. Plaintiff used a lawnmower to trim a hedge  he fell backwards & was injured when the lawnmower fell on top of him  sued successfully for his injuries  Courts seem to assume insurance is available, it should be used to compensate or look after the plaintiff - availability of money for damages will determine the outcome of case  Plaintiff will lose if defendant is poor  More for the “greater good” – no individual responsibility  Leads to bigger rewards (because of lawyers taking a contingent percentages & because insurance is higher) o Canadian Approach  Legislations are more likely to assist, & courts should stay out of public policy  Ex. Plaintiff used a lawnmower to trim a hedge  he fell backwards & was injured when the lawnmower fell on top of him  plaintiff would lose  More traditional tort, more conservative, and less concerned with social implications  More the “private” dispute between the parties before the court  Has more socially minded legislation (Ex. universal health care) - makes the consequences for injured plaintiffs less severe than in the U.S Cases  Plaintiff: injured party or the individual doing the suing  Defendant: party being sued, wrongdoer, tortfeasor  Pleadings: documents setting out allegations of the parties to law suit – parties make a plea before the court  Statement of claim: plaintiff’s pleadings, setting out allegations of wrongful conduct & including prayer for relief – remedy sought  Statement of defense defendant’s pleadings, setting out why the defendant claims he did nothing wrong or plaintiff cannot prove its case or conduct is described as nothing wrong in the eyes of the law  Appellant: party appealing a decision – either plaintiff or defendant  Respondent: party who “responds” to an appeal – opposite to appellant Duty of Care  Legal duty that is owed in a negligence case  Establishes foreseeability as the test for liability & this foreseeability is based on prescient abilities of the reasonable and prudent person  Cause uses previous case law to draw out uniting principle to form a rule of law Lord ordinary: trial judge Pursuer: plaintiff M’Alister (Donaghue) v. Stevenson  Plaintiff never led any evidence  Facts were accepted by defendant as true – defendant argued that they did not support cause of action  Facts: o Plaintiff went to a café, friend bought her ginger beer, drank some and poured rest into a glass o Rotten snail fell into glass – bottle was opaque o She was sick o Sued manufacturer for failing in its duty to ensure snails did not get into beverages and failed in the duty to inspect beverages and in failing – caused accident  Held: succeeded at trial o On appeal – overturned trial decision & dismissed the action o Sole Q before court – do pleadings disclose cause of action  House of lords – for plaintiff o Does the defendant owe a duty of care to plaintiff o Previous cases decide the particular situation to find a legal duty o “Love thy neighbor and must not injury thy neighbor”  Who is the neighbor – person so closely affected by actions (reasonable care/foresee)  Extent of duty – proximity  Not time or distance but of the direct relationship that a person could be injured  Significance of the bottle being opaque o Consumer would not be able to see the defect – makes causal relationship very proximate  No previous case law has found liability – foreseeable plaintiff test did not exist – duty of care was not clearly defined  Objective reasonable person standard o Defendant can’t simply argue that he in particular didn’t foresee potential injury o What “should” someone foresee o Controversial to decide what this person would think or know – essentially a moral judge  Subjective standard would ask the question what did this defendant actually know or foresee Palsgraf v. Long Island Railroad Company  About refining that duty & clarifying principle of duty must be owered to the plaintiff in the particular circumstance before liability will occur  Risk is relational – the plaintiff must be a foreseeable plaintiff  Law will only extract compensation for injury from the defendant when there is fault – fault in negligence is failing to recognize foreseeable harm – no duty if harm is not foreseeable  Establishes the order of questions for liability in negligence o Cant say that because someone was injured there must be liability – reasoning back from damages & causation o Majority opinion  Stays true to negligence principles – insisting on duty of care to plaintiff – insisting that without reasonable foreseeability – no duty owed  Defendant acted reasonably in circumstances o Dissenting Opinion  Holds that any time there is conduct causing damage, & no wrongful act on the part of the injured party then because there is injury the defendant must be liable  This is wrong  One cannot reason back from the injury and causation alone is also insufficient  Reasons backwards from harm & finds liability or fixes blame on whoever caused it  Rejects foreseeability as the test for duty of care – foreseeability can be used to determine the practical question of where you top paying for injury as the consequences of a single act are potentially unlimited  Facts: o Plaintiff standing on platform at beach – two men ran to catch moving train o Defendants employees pulled & pushed 2 man to help him onto train – dropped his package o Package exploded and some scales fell down, landing on plaintiff – injuring her  Held: at trial & on appeal (state level) for the plaintiff  On appeal case dismissed – Majority Opinion o No duty of care owed between the defendants employee and the plaintiff o Not wrong (not negligence) in relation to plaintiff – nothing in the situation had potential for peril o Wrong maybe with respect to holder of the package o Act did not pose foreseeable danger to any persons – employee may not have pushed if package contents were known 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 Court also stated that 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 o Risk reasonably to be perceived defines duty to be obeyed – is the risk to another within range of apprehension o Question of liability is always anterior to the question of the measure of the consequences that go with the liability – no tort liability = no measure of damages  Order in which elements of negligence action must be addressed – 1. Duty of Care  Dissenting Opinion o Feels that act was a wrong to the world – defendant accepts all consequences of his actions o If there is damage caused – obviously defendant did something wrong o Objects to proximate cause limitation – objects to foreseeability test  One should not have to foresee exact nature of the mishap – it is enough that they are affected o Sees proximate cause as a limitation of practical utility – cant make the defendant pay for everything that happens o Foreseeability applies here at this point to determine the extend or scope of how far Hay/Bourhill v. Young  Further refines notion of foreseeability  Discussing whether kind of injury is foreseeable  Plaintiff is a bystander & her injury caused simply by seeing incident  Facts o Plaintiff – woman 8 months pregnant standing 45’ from collision o Motorcyclist was killed in collision o Plaintiff suffered nervous shock as witness and baby was still-born o Sued negligent motorcyclist  Held: for the defendant, defendant owed no duty of care to plaintiff – defendant was negligible but not in relation to plaintiff o Nervous shock was not a foreseeable injury  Must be negligent to this specific plaintiff  If the wrong is established, the wrongdoer must take the victim as he finds him – thin-skilled plaintiff rule, only applies after liability is established  Question of liability is anterior to question of measure of consequences  Court held that harm to a by-stander, caused by merely witnessing the collision is not foreseeable – no duty of care – no liability to plaintiff Thin-Skulled Plaintiff Rule  Until liability can be established through a duty of care owed, rule will not apply  Takes away argument that a lack of foreseeability might otherwise give a defendant  Example o Defendant strikes a person who is, unbeknownst to the defendant, a hemophiliac (bleeder) o Otherwise minor blow to someone without this disease, this strike could have fatal consequences for the hemophiliac o Injured hemophiliac might sue the defendant for her injuries  Defendant may defend on the basis that he had no knowledge of the plaintiff’s condition – he should only have to pay that would be sustained by a normal person because the injury was not foreseeable  Rule precludes this defense o Tortfeasor takes his victim as he finds her and is responsible for all injury caused by his wrongful conduct  But rule only applies after you find duty of care & a breach of said duty  You are only liable for wrongful conduct and if the conduct is wrongful – you pay for the full extent of injuries sustained  If the conduct itself is not harmful – no amount of harm is going to make it so  Example o If contact was a pat on the back – injury is not foreseeable – no liability o If contact was a punch/slap –degree of injury is foreseeable – liability for full extend of damage Oke v. Weide Transport LTD & Carra  Facts o Plaintiff (deceased) driving on gravel shoulder/median, trying to pass slow-moving truck o At the end of median was impaled by a sign post sticking up out of the ground o Defendant Carra – driving a truck in the opposite direction – knocked the sign down o Plaintiff killed when he was impaled, estate sued driver and company (vicarious liability)  Vicarious liability o Through actions of another o Does not require any fault on any partly vicariously liable o Most often seen in employer employee situation o Employers are vicariously liable for damages caused by employees, acting during and within the scope of their employment  Held: at trial for the plaintiff, defendant Carra was negligent in not removing or reporting damaged sign  On appeal: held for defendant – plaintiff was not a foreseeable plaintiff as accident was not foreseeable o No negligence when defendant hit signpost o Surrounding signage and layout of road – indicated that ordinary reasonable driver would not be driving where plaintiff was driving (on gravel that was almost an end) o As plaintiff used road in unusual manner – kind of accident that occurred was not foreseeable o Damages & injuries not foreseeable and too remote o Freak accident – could not reasonably have foreseen plaintiff would attempt to pass driver  Dissent o When defendant cleaned up debris & asked attendant about reporting – indicates he did see potential for danger o Dissents argument: if he was not negligent in knocking the sign down – he was not negligent in leaving it as it was – he was in the position of any bystander – there is no legal duty to warn generally Moule v. New Brunswick Electric Power Commission  Rule in Rylands vs. Fletcher o Rule that would find liability if there was injury – no matter now careful the defendant was in its conduct o Court did not use this rule and instead resolved the case on negligence principles  Strict liability (in the civil sense) o Referred to as the rule in Rylands v. Fletcher  Ryland filled a reservoir  Filled up his neighbor Fletcher’s coal mine with water  Anyone who accumulates something non-natural on his land is liable o No matter how careful you are to avoiding injury to others – if you do the above – you are liable o Ex. transporting hazardous waste – products liability cases  Facts o Defendant had high voltage wires on towers, clearned tree limbs at 3’2” distance from wires o Was a maple tree 5’ from wire at the bottom, 3’2” from wires at top o Branches near wires were trimmed off on wire side, at wides to 40’ but not on the other side o Branches on other side from 25’ to 40’ o Wires were 33’6” from the ground o Spruce tree near by, branches trimmed to height of 13’ o Someone put steps on tree, climbable o Platform on spruce tree leading to maple tree – more straps to allow climbing of maple tree o There was a crotch in the tree at height of wires o At trial – court held that plaintiff had climbed trees & fallen & thereby come in contact with the wires o Plaintiff’s lawyer argued that plaintiff had reached out and touched tree – therefore tree was too close to wires & was a foreseeable accident i.e boys climb trees, trees were close enough to be touched o Court held boy could not reach wires, touched them when he fell  Held: at trail for plaintiff o Trees are intriguing to boys, foreseeable that they would nail things to climb to trees o Any foreseeable child would slip & fall and even through not probable – reasonable and prudent o Person would foresee danger and remove tree all together  On appeal: judgment reversed  On appeal SCC: facts disclose so “fortuitous” a sequence of events – injury & fall were not foreseeable o Plaintiff is not a foreseeable plaintiff – defendants precautions were sufficient to avoid foreseeable accidents Amos et al. v. New Brunswick Power Commission  Facts o Defendant had power lines along highway o There were trees located in front of the plaintiff’s uncle’s house with wires passing amount top branches of the tree o Plaintiff climbed tree, tree swayed – touching wires o Boy shocked & ignited  Held: at trial for plaintiff, had duty of care, accident was foreseeable  On appeal: overturned, court considered bound by Moule  SSC: for the plaintiff, distinguished on the facts o Nothing unusual or fortuitous in this case – tree limbs were not trimmed, tree was close to wires, boy didn’t fall (simply climbed) – injury was foreseeable & defendant took no steps to prevent it o Moule case defendant had trimmed all the trees, accident and circumstances were unusual Standard of Care  Word “foreseeable” alone can’t be the complete answer  Even the most remote possibility of injury would attract liability if duty of care arose just because something was foreseeable Bolton & Others v. Stone  Facts o Defendant cricket club o Batsman hit a cricket ball, over the 7’ high fence o Ball hit plaintiff standing 100 years away from wicket o Plaintiff sued club for injuries  Held: defendant at trial  On appeal: plaintiff  Appealed to House of Lords: for the defendant o Readily foreseeable that accident might happen o Balls hit over the fence about once every three seasons o Residential roadway, not a lot of traffic o Is the question to avoid conduct with potential, however slight, to injure, or avoid conduct only if injury to others is likely or probable, on a reasonable person standard o The test - risk of damage to person on the road so small, reasonable man would have thought it right to refrain from taking steps to prevent the danger o 2 factors:  How remote the chance of injury  How serious the likely injury 4 Factor Test  What is the likelihood of injury? o Low, a ball over the fence every 3 yrs or so, not a busy street  What is the likely severity of injury? o Hard to say, would a person always be hit in the head - Lets say “average”  What is the cost of avoiding the injury? o A “net” or a higher fence, which would be a low cost o If you had to move the park, expensive  What is the “social utility” of the conduct in question o High, in England Cricket is a pretty important social event What about when people attend a hockey game or a baseball game? Should the hockey arena be liable when someone is hit in the face with an errant hockey puck? General Motors was subject to legal action for faulty brakes in the 1980’s “Citation” automobile One of General Motors’ defense arguments was that since only about 7 had died and over 2 million units had been sold, then this was an acceptable risk Paris v. Stepney Borough Council  Facts: o Garage mechanic with one good eye – struck with metal chip while hammering U-bolt on a cage o Injured good eye o Sued employer for not providing goggles  Held: at trial for plaintiff  On appeal: for defendants  Appeal to House of Lords: held for plaintiff o At trial, employer knew he had only one good eye - (goes to seriousness of injury as a factor to be considered, together with likelihood of injury) o There are two factors: seriousness of injury risked, and likelihood of injury caused o Ex. to carry lighted candle through gun powder or to carry lighted candle through a damp cellar – amount of care is proportional to degree of risk General Motors Citation case: perhaps likely severity of injury would make liability a bit more likely 4 Factor Test  What is the likelihood of injury? o High, we now know that doing this kind of work requires safety glasses  What is the likely severity of injury? o High, even without already bad eye – people think loss of an eye is a severe injury  What is the cost of avoiding the injury? o Low, safety glasses are comparatively inexpensive  What is the “social utility” of the conduct in question o Low, at least doing this work without safety glasses has a low social utility Causation  Have to show that the negligent conduct was the cause of the plaintiff’s injury  Expectations of capabilities of science & technology raise some real difficulties for proving causation  Example o Neighborhood where the incidence of brain cancer in children is 10 times the national average o It has been discovered that a toxic substance has “leached” into soil & is also present in a stream where all of the affected children are known to have played o The family of one child sued the company that had released the toxins into the environment o They lost the case, because it could not be proven on a balance of probabilities that a particular child’s sickness had been caused by the environmental toxin o Common sense intuitions may say it is likely toxin caused illness - lacks precise empirical link o Expect that precise causal explanation, and impose this burden on the plaintiff o Disease etiology is a recent enterprise, and is still not that exacting o Expectations regarding precise explanations may be too onerous a burden on the plaintiff McGhee v. National Coal Board  Facts o Plaintiff employed at defendant’s company o Job was to empty pipe kilns at the brickworks o Sent to a different job – to empty brick kilns – hotter & dusterier o Thursday – works at brick kiln – noticed abrasion on Sunday o Worked Monday & Tuesday o Tuesday went to the doctor o Off work – dermatitis – caused by heat & dust from work o Sued defendant – failed to provide adequate washing facilities at work – plaintiff cycled to & from work  Lord Reid o Causation o Dermatitis is caused by minor abrasions in the horny layer of skin o Repeat abrasions – break down outside layer & underlying skin subject to injury o Medical science cannot determine the precise nature of the injury o Only thing to help situation is to wash & get rid of dust o He had to ride home hot, sweaty & covered in dust o Longer exposure = greater risk o Plaintiff must show fault of defendant caused or materially contributed to injury o Even if 2 separate cases – good enough if each cause materially contributed to the injury o Ex. Bonnington Castings v. Wardlaw  Disease caused by accumulation of dust in lungs – came from two sources  Defendant was one of the sources  In Bonnington – 2 causes were necessary for injury o In Bonnington we have two known causes, and an apportioning between the causes o In Mghee - don’t know exactly what causes dermatitis, so can’t tell if there is material contribution, can only tell if there is increase in risk - no precise empirical causative link o Could be  Accumulation of minor abrasions  Disease starting at one abrasion and spreading o Take a broader view of causation o Riding home without washing added materially to risk of injury o Plaintiff leaving the job did not mean leaving the risk or cause behind o Reject argument that materially increasing the risk is different from material contribution o For the plaintiff – really an allowable inference of fact  Lord Wilberforce o Defendant was at fault in not providing showers – but no causation (like trial judge said)  Couldn’t show breach caused or materially contributed to injury o Fault was found because – washing is only preventative method – defendant knew this o Washing is standard practice in the industry o Showers should have been provided – provides foreseeable increase in risk of injury o Normal formula – breach of duty caused or materially contributed to cause o 2 problems for plaintiff  Experts don’t know how much dust or how much time needed to cause dermatitis – don’t know precise cause  Injury was a result of 2 causes  A) Accumulation or exposure to dust  B) Failure to wash o Cause B) – fault of defendants – could not say B) was the cause of injury o Expert could only say B) materially increased risk of injury o I agree – but not enough to just show increase in risk – open to defendants to prove actions didn’t cause injury o Onus on defendants to prove lack of causation – if plaintiff can show material increase in risk & precise injury did occur o Further considerations  A person, by breach of duty, creates a risk and injury occurs within field of risk – loss borne by him unless proven otherwise  Evidentiary point of view: plaintiff proves employer should have taken precautions – without which there is a risk and exact injury occurs – plaintiff has proved enough o A policy and justice – creator of risk, should have foreseen – should bear the consequences  Material increase in risk was treated as equivalent to a material contribution to damage  Lord Reid says o If plaintiff can prove there is material increase in risk, due to negligent conduct of defendant, and injury does occur, then this will be treated as if the plaintiff had proved causation o Allows an inference of fact if risk and injury are proved o Rejects any difference between material contribution and material increase in the risk of injury  Lord Wilberforce says o If a plaintiff proves a material risk of injury due to the negligent conduct of the defendant, and the injury does occur, then there will be a presumption of causation that can then be rebutted by the defendant proving it did not cause the injury  Plaintiff proved his case & wins in Reid analysis, with no ability for defendant to prove lack of causation  If Wilberforce is correct, burden of proof becomes defendant’s, with ability to prove lack of causation  In reality is appears that the practical effect of each Law Lord’s decision is the same  These principles apply only if the causation issue is beyond empirical proof 4 Factor Test  What is the likelihood of injury? o Given the heat and the dust, likely high  What is the likely severity of injury? o Uncertain o Case does not refer to a lot of people getting dermatitis and having to leave work as a result o How severe is dermatitis - probably depends on the case  What is the cost of avoiding the injury? o Low, give the guy a shower  What is the “social utility” of the conduct in question o Foundaries and brickworks are important Lauritzen v. Barstead Remoteness of Loss  Thin-skulled plaintiff rule – defendant will have to pay for all injuries or damage o Not always the rule – law is willing to recognize that not every event or injury is comprehensible  Another rule – injury is too remote from tortious act & compensation is not awarded  Test is foreseeability – as the consequences of an act spread out father removed from the original act – question to decided when it is no longer proper to attribute causation of damages to the defendant  Point in this case where one consequence is not foreseeable and legally not described as caused by defendants tortious conduct  Novus Actus Interveniens (new intervening act) o Often raised by defendant to allege that some other intervening act or event interrupted chain of causation & caused injury to plaintiff o Ex. in Stevenson vs. Donahue – someone else other than manufacturer put snail in bottle  Facts o Plaintiff and defendant worked together o Dec 16 – plaintiff & defendant (boss) and 2 guys drove to down o Defendant got drunk – stayed in the bars until closing time o Came out with 2 more cases of beer o Defendant put beer in the car and asked plaintiff to drive o Got a few miles & told plaintiff he wanted more beer o Plaintiff refused & fight ensued o Defendant grabbed the wheel and car went off the road o Had to drive into the deep ditch o Plaintiff went to sleep in the back seat o Defendant drove the car to the river – got more stuck & in the middle of no where o Bad weather – plaintiff could not get help & had to keep coming back to the car o Stuck in the car until Monday – plaintiff walked down river & found farmer who took him to hospital o Lost front part of one foot & some toes on the other – frostbite to face, nose & hands o Defendant lost both feet  Held o Defendant was negligent in grabbing the wheel, in driving further along the river, in drinking, in backing the car up so that it had to be driven to the bottom of the ditch o Rejects argument that plaintiff interrupted the chain of events by getting out of the car when it got stuck – leaving keys in ignition for the defendant to grab when plaintiff knew he was drunk o Plaintiff only did what he could to fix things  Legal issues o Has been argued that whatever injury is directly caused is responsibility of the defendant o This places emphasis on causation to determine liability o This has been rejected – liability is determined by foreseeability o Defendants are liable for probable consequences of their actions o As a reasonable man he should have foreseen consequences o On these facts – defendant should have been able to foresee consequences of his actions on a cold night & on a slippery road o Wagon Mound Case: cause does not mean foreseeability of particular harm & precise manner or sequence of events o Plaintiff entitled to damages  But o No claim for loss of his wife – she went back to Norway because she didn’t want a crippled man o They were married 26 years – not foreseeable result – too remote 4 Factor Test  What is the likelihood of injury? o Pretty high, drunk driving in a blizzard  What is the likely severity of injury? o Pretty high, easy to die of exposure in that situation  What is the cost of avoiding the injury? o Low, don’t drink or get a room  What is the “social utility” of the conduct in question o Low, obviously Breach of standard  Standard of care was not the issue in the last 2 cases, but the analysis is always a useful exercise  If you find a breach of the standard of care and can’t prove causation or the damages are too remote, you still lose the case Quantum of Damages (Not Solace)  This is the case on damages in Canada  You will read that the damages awards in Canada prior to this case were usually extremely low  Damages for pain & suffering were traditionally < $10,000.00 even where wrongful death was at issue  Coffee spill case - plaintiff was awarded millions of dollars for something that seems fairly minor (American case) & “compensation” wasn’t reason that award was so high  Huge monetary damages awards are to pay for medical expenses & special needs occasioned by long- term injuries sustained by the plaintiff  Andrews - Alberta Court of Appeal was unjustifiably frugal when considering damages for cost of future care for a young man that would now be disabled for the rest of his life  Courts grant some things you ask for & not others, so general rule is ask for everything, within reason Rules & Definitions  Damages: monetary award, damages always refer to money  Purpose of damages: o Restore the plaintiff to his or her original condition, not improve that condition o If plaintiff was in motor vehicle accident, & despite severity, was shown to have suffered, prior to accident, every medical condition alleged to have been caused by accident - no damages award  Kinds of Damages in Tort law: o General Damages: monetary award for things not easily quantified, includes both non- pecuniary and pecuniary loss  Pecuniary: monetary losses, lost wages, devalued property, lost pension benefits, etc.  Non-Pecuniary: non-monetary losses, ex. loss of care and companionship, pain & suffering etc., difficult to quantify  **Both general and special are based on compensation, to pay for injury or loss o Punitive: to punish, where defendant’s conduct is considered high-handed or outrageous, the purpose of a punitive damages award is to deter that person from committing that behaviour o Exemplary: to make an example, where conduct is outrageous, judgment is to show disapproval of defendant’s conduct, to deter the public o Nominal: small, not compensatory, can be a little as one dollar, *remember, even a monetary award of $1,000.00 can be classed as nominal damages  Awarded when the case has been won, but no loss or injury, generally applies to intentional torts, may be a way of court showing disapproval for a law suit, i.e. trivial matter etc. Punitive, exemplary, and nominal, are not compensatory  Court has to decide case now, once and for all, & must make monetary award that they feel is justified on the evidence as it appears in the trial  No way to predict what is going to happen in future, person may need more care, they may need less  That care may be more expensive, or less expensive  There might be a cure for spinal injuries in the next few years  If personal injury case dragged on long enough, out of desperation, plaintiff might seek & find other employment  This would likely reduce a claim for anticipated lost wages  Plaintiff might die sooner than expected, and this would also reduce many of the claims for damages  Court compelled to make determination of unknowable, & grant damage based on plausible predictions  You will notice a reference to contingencies, and the court’s discussion of this thorny problem o Contingencies is a general heading that is always used to reduce a damages award o Not clear why this always results in reduction, since contingencies of life may just as easily make a plaintiff more needy in the future  One of objectives of Ontario no-fault insurance scheme for automobile insurance was to provide injured people with the things they needed for recovery and treatment without waiting until the end of a law suit  Not uncommon for cases taking 7-10 years to get to trial, & injured plaintiff was without money until case was resolved  While it is not settled that this legislation has been a resounding success, despite some of its other problems at least it appears legislators were attempting to deal with this problem  Note the court reference to this as a problem crying out for legislative reform Andrews v. Grand & Toy  Facts: o Plaintiff was injured in a motor vehicle accident at age 21
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