OMISSIONS

JOSHUA KRANE

The common law will direct the actions of individuals; however, the law faces problems in obliging people to act. The importance that the common law places on individual liberty speaks to the reluctance of the common law to interfere with the affairs of others. In common law, the court assesses omissions in terms of duty of care – does the defendant have a duty to act? In civil law, everyone has a duty to act. Civil Law assesses omissions using the concept of fault instead – how does the omission of the reasonable person compare to that of the defendant?

Eaton v Moore [1951] SCC on appeal from QCAFacts: Moore slips on oil after it had spilled. The clerk called maintenance

immediately but they were too late. The clerk’s duties did no include cleanup.

Issue: Should the clerk have acted to cleanup/demarcate the spill immediately? Held: No.Reasoning:Given the general duty not to harm others, would the reasonable person have acted? The court balanced the duty of the clerk as a salesman to his

merchandise and the duty of the clerk to protect the customers. The justices refer to duty to demonstrate a weighing of responsibilities. The court determines that the accident was not foreseeable nor did it constitute a concealed/immanent danger.

Would the reasonable employee have addressed the spill right away? The reasonable person is expect to take ordinary and not great precautions. The court is essentially assessing the fault of the employee using the RP test.

Even so, the employee did take reasonable precautions, by calling the maintenance staff to clean the spill immediately.

In addressing the vicarious liability of the employer, the court found that benefits from the risk-creation of the enterprise was not sufficient to attribute liability.

Rationale: In civil law, where the employee fails to act in a situation causing

injury, but does so as to correspond to the reasonable person standard, then the employee has not committed a fault.

Critique: Estey holds that the slip constituted a trap and that the employee did not

take reasonable steps to prevent customers from injury. In the course of

employment need not be based on simple instructions/list of duties, but it should have been known to the reasonable employee that customer safety is a priority.

How do we distinguish between an act and an omission? The category of omission has been criticized for drawing an artificial distinction. For example, was the fault of the manufacturer in Donoghue and act (putting the snails in the bottle) or an omission (failing to check the bottles)?

The basic principle of duty of care in common law regarding omissions assumes that no duty exists unless:1. A person undertakes to perform a service for someone and begins to

act (not necessarily contractual). For example, the doctor in Barnett, by offering medical advice to the deceased assumed a duty, even if the doctor failed to treat the deceased.

2. A person has a pre-existing relationship enumerated by precedent: employer-employee, parent-child, captain-passenger, referee-player, jailor-prisoner, hotelier-patron

3. The defendant has control over the third party, which caused the damage (often these relationships parallel those in 2). For example, a car-owner has control over a drunk driver who causes injury to another.

4. The defendant has control over land/thing that causes harm.

In assessing the duty of care regarding omissions, the court considers the following questions:

Did the relationship between the plaintiff and defendant give rise to a duty of care? What factors in that relationship evidence that duty? We look to match precedent cases and that fall within the 4 categories.

What is the ambit or the limit of that duty? What is the standard of care that the defendant owes? We are not talking about conduct, but about whether a person owes a duty because of the relationship with the plaintiff. The standard of care does not consider the reasonable behaviour of the defendant, but it recognizes what the duty involves.

Did the defendant discharge his/her duty? The court will look at the behaviour of the defendant to assess whether it corresponded to the standard of care – and whether the behaviour was reasonable. If not, then we proceed to assess fault, since fault is the breach of the standard of care.

Only after we have established that there was a duty and that it was not discharged, can we proceed to establish causation.

Jordan House stands for the general application for the determination of a duty to act. When do we have a duty to act?

Crocker v Sundance Northwest Resorts [1988] SCCFacts: Crocker paralyses himself during a tubing competition. The hotelier had

noticed him drinking before the race and during the heats. He asked if they were able to race, and Crocker stated that he was. Normally, sporting accidents lie where they fall, but:

Issue: See above test.Held: Sundance owed a duty to Crocker and breached its obligation toward him.Reasoning: With the shift back from individualism to collectivism, courts are willing

to expand duty of care.

Conditions for establishing the special relationship (to give rise to duty): The court reference Jordan House to establish the relationship between

hotelier and patron is close enough such that in the patron’s intoxicated conditions, the hotelier should have taken reasonable measure to prevent the patron from injuring himself. In this case, it was obvious that the plaintiff was drunk (and Sundance provided the liquor).

Sundance creates the conditions (risk) and benefited from them to promote its resort and therefore, it should incur the corresponding legal responsibility as well. The activity was under the full control of the defendant, the defendant benefits from the risk. The competition was also inherently dangerous

Did Sundance sufficiently discharge its duty by meeting the standard of care: The court found warnings to be insufficient of its discharging of its

responsibility toward Crocker.

Sundance could have disqualified Crocker, could have refused to give him a new tube when his escaped down the hill because of his intoxication, or they could have really made clear the danger of participating intoxicated. None of these precautions was burdensome, yet Sundance took none of them, and therefore failed to me its standard of care. These acts are not overly burdensome (seems like a cost-benefit analysis of precautions vs. probability/gravity of harm).

The breach of the standard led the court to analyse the other conditions for liability. It found that Sundance did not take reasonable steps to prevent Crocker from participating in the competition while he was intoxicated.

Rationale: In cases of omission where the defendant and plaintiff are in a

special relationship, the defendant owes a duty on the defendant not to place the plaintiff at an unreasonable risk of harm.

Murphy v Little Memphis Cabaret [1996] OCJFacts: Murphy and friends arrive at the bar, gets drunk, and encounter another

group at the bar (who were not drunk). A conflict erupted and both groups were thrown out of the bar at the same time (one out front and one out back). Murphy was injured by the group.

Issue: Did the tavern owe a duty to Murphy and did it fail to meet the standard of care (did it discharge its duty)?Held: No.Reasoning:To create the duty of care based on a special relationship: The bar had a duty not to place its patron in an unreasonable risk of

harm – based on its patron-retailer relationship. Foreseeability of injury is insufficient.

Given the duty of care, what is the extent of that duty?: The danger had originated within the tavern and therefore the duty

extends to all of the patrons within the bar, and it is not confined to intoxicated persons – but the patron must be awaited by imminent danger.

Did the tavern discharge of its duty? To discharge its duty, the bar could have called their customers a taxi,

called the police, made other arrangements to ensure that the conflict would not continue on the premises, etc. As Memphis took no steps to ensure the safety of its customers, the defendant has not demonstrated that it used reasonable care to fulfill its duty to the plaintiff.

Rationale: In cases of omission where the defendant and plaintiff are in a

special relationship, the defendant owes a duty on the defendant not to place the plaintiff at an unreasonable risk of harm.

The principle established in Jordan House is confined to cases of extreme intoxication, but applies to all situations in which an occupier exposes a visitor to imminent danger to which he has somehow contributed.

It seems, however, that these conditions/criteria are linked more to fault and causation. Unlike the civil law, duty of care is the entry point into assessment of liability in common law. For policy reasons, the court will determine whether some relationships are more/less worthy of legal protection, based on policy and philosophical reasons.

Duty to RescueIf someone undertakes a rescue, he is under an obligation to fulfill that obligation. The reason being that others would assume that help has

arrived and therefore not attempt to provide assistance. The law will protect people from civil liability if they undertake a rescue. The rescuer would have to be the author of gross fault to be held liability. The requirements to hold the rescuer at fault are very heavy (a.1471).

In common law, a potential rescuer does not need act, unless that person is in a special relationship as enumerated for omission.

In civil law, a.2 of the Charter states that there is a general duty to rescue, unless there is danger to the rescuer’s well-being, to that of another, victim’s life is not in peril, or another valid reason. How can we tell if the victim’s life is not in peril? No case law on duty to rescue to assess “validity” of reason. As civil law has no problem with omissions, the civil law could simply apply a.1457, although it does not have the exceptions and would apply the reasonable personal standard.

We assume in ECO that liability rules can regulate human behaviour, but this claim is hard to prove. It seems more likely that our moral obligation to rescue will guide our behaviour and that the discussion regarding duty to rescue involves issues of assessing liability.

Additional Notes:

Legal duties arise from: a choice to act and choice to omit.

Is the duty to act the same as the duty to rescue? No. The duty to rescue is a subcategory of the duty to act. Nothing forces a person to take a positive action unless that person falls within the categories. In cases of rescue, the action is already in progress and the rescue involves saving someone.

DUTY OF CARE

Common law will use the duty of care to limit liability1. In common law, the loss will lie where it falls – and the loss will be transferred only if there is a special relationship between the parties giving rise to an obligation to act with care. Duty of care is a tool that we use to define this legal relationship. Based on policy considerations, the court will assess whether the relationship is worthy of judicial assessment (is it in the interest of society that the court can intervene?).

Courts have a problem defining what is a close enough relationship to warrant transferring the loss.

In civil law, policy-based justifications are developed by the legislature (to which the courts will defer), whereas in common law, the courts have a tradition of taking decisions – and the courts are the primary developer of the law.

Can we distinguish between these two conceptions of duty? a.1457 – duty not to cause harm to “another” by one’s fault Donoghue – duty not to cause harm to your “neighbour” (so closely and

directly affected) by one’s fault

Different societies have different conceptions of “neighbour” and if the conception of neighbour in a society. By looking at proximity through the lens of reasonability, we may restrict or expand our conception of who is my neighbour. However, without the case law that interprets the concept of duty, we would have difficulty defining the parameters of what harm is foreseeable and what harm is not.

Donoghue seems to reflect an expanding social responsibility in British courts to acknowledge an intervention in individual rights by attributing new duties of care that did not previously exist.

Donoghue v Stevenson revisited [1932] House of LordsThe consumer never purchased the product from the manufacturer. However, since the law had previously never recognized a duty, Lord Atkin established principles that served to recognize new duties.

Neighbour Principle: per Lord Atkin’s a duty of care extends to "persons who are so closely and directly affected by my actions that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question"

1 Pure economic loss, omissions, psychiatric harm, and governmental liability.

This principle serves as the first branch of Anns test and considers: foreseeability of injury - "in contemplation" and the proximity of relationship - "so closely and directly affected". Proximity and foreseeability are linked where one is sufficient to show another.

If there was contemplation of harm or foreseeability of harm, then the proximity of the relationship is shown (an vice versa). The general class of plaintiff to which the plaintiff belongs is sufficient to establish foreseeability, and thus proximity. This is an objective test. We use duty of care to shape how we endeavour to attribute liability in common law societies.

The court will examine the case law first to establish a duty of care. This tool is necessary only if a new relationship is one that warrants the protection of the law.

By contrast, under a.1457, there is no allusion to concepts of foreseeability and proximity, meaning that there is no implicit limitation on duty. In civil law, it might have been possible to limit general duty in civil law, by limiting the interpretation of the word “another”. However, we know that courts have extended the duty to all.Home Office v Dorset Yacht Co. [1970] House of LordsFacts:

Three officers were supervising the work of a number of juvenile detainees on Brownsea Island. The officers went to sleep and the juveniles were allowed to roam free while on the Island. The juveniles escaped, stole a yacht, crashed it into another yacht, and then boarded the latter yacht, causing it further damage.

Issue: Does this new relationship warrant the establishment of a duty?Held: Yes.Reasoning: The defendant is the state and there are considerations specific to the

defendant and the victim. The act that caused of the damage was linked through the inmates and borstral officers, but the defendant is the state. An omission to prevent the damage also created a problem for the court.

If no precedent exists, the judge has a choice whether or not to apply the

neighbour principle in Donoghue to the fact situation. The policy nature of this consideration emerges in this case. Beyond the idea of proximity, we can account other considerations that are not strictly legal.

Lord Reid confirms the basic duty of care principle established in Donoghue and he applies the conditions of foreseeability and proximity. Reid explains that duty can be established "unless there is some justification or valid explanation for its exclusion." No ground in public policy to give immunity to the state. This becomes the policy consideration branch of the Anns Test.

Although Lord Diplock examines the existence of foreseeability, he gives

more emphasis of public policy: what exactly constitutes a close relationship.

HO is only liable if the harm caused by the youths occurred (i) in the course of the escape, at (ii) roughly the same time as the escape and (iii) in the vicinity of the escape (attempt to avoid opening floodgates of litigation).

Can we limit the duty of care? Had escapees had robbed a bank three weeks later, HO would not be

liable - the duty does not extend to the public at large because the harm would not be foreseeable based on the policy considerations outlined in the second component of his judgment. The public is far too large of a class to protect (although you could reasonably foresee damage to others) and Diplock is concerned that liability will extend too far.

The Yacht owners are submitted to a risk that is greater than the risk to which the public at large is submitted. The public shares a general risk of being a victim of crime. To give rise to a duty by a custodian, there must be some relationship between victim different than that of public at large.

In this case (1) the officers failed to take precautions and were in breach of their responsibility (2) it is reasonably foreseeable that the trainees would steal the boats moored on the coast.

Rationale: Non-legal policy considerations help to limit liability to the

defendant. Although this conception of policy seems arbitrary, the defendant could be held liable to a great extent.

WHERE THE COURTS HAVE NOT PREVIOUSLY RECOGNIZED A DUTY:

In Anns v Merton and Kamloops v Neilson, the court established that proximity will established a prima facie duty of care, but the second step, re Dorset, policy factors must be considered. The categories are not closed. However, to create a new category, the court must express the policy considerations in an open/express manner that will give rise to the recognition of a new duty.

The court recognized a need to proceed “pragmatically”. The use of policy considerations allows courts to issue judgments based on political and economic considerations – principally to ensure that (classes of) defendants are not held responsible indefinitely for damages resulting from their faults.

In civil law, no tool exists to incorporate policy analysis. Perhaps the Anns model allows for broader discussions as to whether we want the law to govern certain types of relationships. Civil law will have to resort to other tools, such as causation, to shape liability.

In Cooper v. Hobart, the SCC recognized that proximity will be mitigated policy concerns, while the 2nd step also considers residual policy concerns.

Cooper v Hobart [2001] SCC on appeal from BCSCFacts:Eron, a registered mortgage broker used its investor’s money for wrongful purposes. The defendant, Hobart, revoked Eron’s license; however, the plaintiff alleged that Hobart failed to advise investors that Eron was under investigation. Issue: Does the regulator owe a duty to investors for failing to properly oversee an investment company?Held: No.Reasoning: Canadian courts had not recognized a duty owed by a registrar to

investors in a mortgage company. Therefore, the court applied the modified Anns test to determine whether they should recognize a duty in this case.

Defining the proximity of the relationship: At the proximity level, this analysis encompasses policy factors that

define/circumscribe the relationship between the plaintiff and defendant. The policy considerations concealed within the Anns test reveal that the court has to balance the interests of all of the parties, including the defendant, which should not be made to bear an overly large burden.

Since no duty of care can be found in precedent, the court undertook the test. However, foreseeable harm, it held, is not sufficient to establish a prima facie duty (as under the Anns test). The plaintiff must demonstrate foreseeability and proximity as illustrated by policy/circumstantial factors that arise from this relationship to impose a duty.

The court recognizes openly that the policy considerations are explicit in determining the relationship between plaintiff and defendant.

Policy factors in the 1st stage: The statute, which creates the source of the registrar’s duties, does not

impose of duty of care with respect to individual investors. The registrar is an investigator, but the registrar must also balance competing interests: to ensure that the public has access to capital and to ensure that the broker is not acting objectionably, to avoid conflict-of-interest, and to protect the ability of registrars to operate. According to the court, there is insufficient proximity to give rise.

Expectations, representations, reliance, and property interests

form policy considerations. Are these policy considerations actually related to the relationship?

General policy considerations “negating” the imposition of a duty: As a 2nd stage, the residual policy considerations will be considered,

such as the floodgates argument. The registrar has to be fair to the broker and cannot simply act on behalf of the investors. The registrar is entitled to some measure of discretion in applying government policy (policy-operational divide).

Rationale: Policy considerations should be taken into account in determining

the proximity of a relationship and not simply in rebutting the prima facie duty, should the damage be reasonably foreseeable using the first stage of the Anns test.

Note: It seems difficult to know which policy considerations will affect the first stage and which ones will affect the second stage.

Once the duty of care is established, the court can consider whether the defendant has discharged the duty of care.

Palsgraf v Long Island Railway Company [1928] NY Court of AppealFacts: A man with a package running to catch a train is helped by two guards.

The guard on the car reached forward to help him and the other, on the platform, the other pushed him. The package contained fireworks concealed under newspaper. It fell and exploded. The explosion threw down some scales at other end of platform where plaintiff was standing and the scale struck causing her injuries. She sues the railroad company claiming negligence of the employee.

Issue: Does the railway company owe a duty to the plaintiff? Like Dorset, the defendant is being sued for the liability of an employee.Held: No.Reasoning: Justice Cardozo finds that the “conduct of the guard (if a wrong)… was

not a wrong relative to the plaintiff”.

To Cardozo, refers to the foreseeability, from the perspective of the wrongdoer, instead of proximity to the fault, and at the same time, we can consider the duty. Ms. Palsgraf is not the kind of person, and her injury is not the kind of injury, that should be in the mind of the guard in doing his job (and did not take care). The risk was to the package and owner, but not to the plaintiff. The injury was not in the ambit of consideration of the defendant – which helps to define the duty to be obeyed.

Cardozo tries to articulate that the further one is away from the wrong, the less of a claim that a plaintiff can make against the defendant. Negligence, like risk, is a term of relation. Negligence is not a tort unless it results in the commission of a wrong, and the commission of a wrong imports the violation of a right, in this case, the right to be protected against interference with one’s bodily security; but bodily harm is only protected against in some instances, not all.

Rationale: Cardozo finds that negligence does not exist until the relationship

has been established between plaintiff and defendant. The tort of negligence is grounded in relationships.

Critique: The jury at the lower court found that what the guards did was wrongful.

It does not appear that any injury is unforeseeable, since Palsgraf has a ticket (contract) and it seems that she is someone who would be expected to be on the platform.

Justice Andrews explains that a wrong did occur, but questions how far should responsibility extend? Andrews explains that this case is the proximate result of the wrongdoing. Due to policy considerations, the law fails to trace the effects of the wrongdoing after a certain point. Andrews acknowledges that the law does not proscribe a principle to determining where liability should end.

Although Cardozo alludes to remoteness in time/space – regarding causation – and recognizes that policy and common sense will help to determine who can claim2. This mirrors the civilian approach taken to examine proximate cause.

Additional Notes:

Establishing a duty of care will permit a plaintiff to claim damages from a wealthy party (such as an insurer or government).

There appears to be a paradox in the assessment of negligence, where although attributing liability to insurers, the loss is actually spread to clients (instead of being shifted per se).

For the Cooper case: proximity = “so closely and directly affected” meaning that foreseeability is not enough, but that only the closest relationship will give rise to a duty of care (informed by policy considerations). As in this case, the registrar could foresee that decisions he made regarding the licensing of the company would have an effect on

2 This position has become the dominant position in the US.

the investors’ interests in it. The registrar, however, was not close enough to the investors to give rise to a duty of care – failing for want of proximity.

In 1996, Anns is reversed and replaced by a test very similar to that in Cooper. The application of the Anns test without consideration of policy factors could mean that the courts would expand the concept of duty. By considering policy factors explicitly when considering which relationships are sufficiently close to warrant a duty, the court can attempt to control the extension of duties of care.

RELATIONAL LOSS AND INJURY TO SECONDARY VICTIMS

Relational loss results when injuries follow injuries to direct victim (through direct victim) who have been affected by the fault of the defendant – victims by ricochet. The direct victim and secondary victim are in some form of relationship. Law has a concern with floodgates and therefore, courts have to determine the range of possible cases that are eligible for relief.

There are two cases to which secondary claims can be made: 1. dead (primary = successor/heir and secondary victim), and 2. alive (direct victim in her own name and secondary). Claims can

include loss of financial support/benefit, non-pecuniary damages including loss of servitium consortium, pain and suffering, and solatium doloris (if primary victim is dead in civil law)3, and moral injury.

Why is the common law concerned with liability? These concerns include:1. flood gates (Page v Smith) – a “minor” fault may have severe

ramifications that overburden the defendant2. judicial scepticism about the authenticity of harm – authenticity is

difficult to verify in cases of psychiatric harm; common law has always considered that physical and property injuries are more serious than psychiatric injury

3. fear of fraudulent or exaggerated claims, as it is difficult for judge to verify the credibility of the victims, leading to a general reluctance to compensate

By adopting fatal accident legislation and duty of care, the common law has recognized some secondary victims, but with severe limitations. Common law has deployed “reasonable foreseeability”, “proximity”, and “policy” to establish limitations.

Page v Smith [1995] House of LordsFacts: The plaintiff suffered from chronic fatigue syndrome and was involved in

a moderately severe car accident. He claimed that his CFS became worse after the accident. The trial judge awarded the plaintiff 162 000£ but it was overturned in appeal. The plaintiff appealed. The plaintiff is not a secondary victim; he is a primary victim but the plaintiff did not suffer physical injury!

Issue: In a case of injury resulting solely from nervous shock, must the plaintiff show that the injury was foreseeable or is it sufficient to show

3 There are statutes in common law (usually fatal accident statutes) that regulate how family members can recover from defendant when the victim is dead. These statutes trump the jurisprudence. These statutes limit who can claim and limits the type of damages that can the plaintiff can claim.

that any injury was foreseeable?Held: Appeal dismissed, because the reasonable defendant would not

have foreseen that an accident with moderate severity (without physical injury) would import psychological harm to the plaintiff.

Reasoning:The reasonable foreseeability test for primary victims who suffers only

psych. injury: As long as some injury (physical, psychological) was reasonably

foreseeable then the plaintiff can claim. There is no danger of floodgates.

The court rules that since the accident was “moderately severe” (121) and since the plaintiff gave no evidence of being frightened, the fact that the plaintiff complained 3 hours later was particular to that person, and that a reasonable person would not foresee the consequences

For secondary victims, who witness an accident and suffer psychiatric harm:

A person of normal fortitude must have suffered psychiatric harm (Alcock).

Rationale: If the defendant can foresee that his actions will cause harm then

the victim should be compensated regardless if the injury was physical or psychological.

Critique: In a dissenting judgment, Berwick warns about opening the door to

frivolous law suits. The shock must be followed by a recognizable psychiatric illness (CFS is a recognizable illness), but where this happens to primary victims, the court should not distinguish between physical and mental injuries. There is not justification for separating physical and mental injury.

Alcock and Others v South Yorkshire Police [1991] House of LordsFacts: Many people were killed and injured as a result of a stampede in the

stands during the football match. The disaster was broadcast on the TV. Kin of the victims brought actions against Chief Constable. A variety of secondary victims learn about the accident in a variety of ways. They claiming damages for nervous chock, resulting in psychiatric illness, which they alleged was caused by the experiences inflicted on them by the disaster.

Issue: Can the secondary victims make a claim for psychiatric loss?Held: Yes, but in limited circumstances.Reasoning:Type of Injury will inform the application of the duty of care test. The damage must be a recognized psychiatric illness (grief is not an

illness).

Reasonable foreseeability test: Close relatives that are personally involved in the accident, the test is

met. However, if the plaintiff is a bystander, that plaintiff cannot claim unless the accident is particularly horrific.

Close relatives who witness the events (secondary victim) determined by a sufficient relationship of love and affection. The class of persons whose claim should be recognized include: husband-wife or parent-child (presumed).

Proximity test:1.The proximity of the plaintiff to the accident in time and space. The

victim has to witness the accident or the immediate aftermath (seeing the victims as they are after the accident).

2.The means by which the injury was cause must come through the direct

and immediate sight or hearing of the event or by the immediate aftermath of the event. Being told about the accident (communication by 3rd party is not sufficient). Witnessing an event on TV can be as great (but images without identifying victims’ faces would probably not result in a claim).

3.The manner in which the injury was caused must involve a sudden assault on the nervous system.

Rationale: In order to claim for moral injury as a secondary victim, the victim

must have a sufficiently close relationship with the deceased, must witness the incident, and must suffer an ensuing trauma leading to mental illness.

Both Page and Alcock consider the “ambit of the duty of care” - to whom does the duty of care extend?

Conaghan and Mansell raise several critiques regarding the common law’s approach to compensation for moral loss. The distinction between physical and psychiatric injury is at odds with modern medical practice, as mental illness is both recognized as a legitimate and debilitating source of injury. The courts have severely limited recovery for those who have not suffered a physical injury as a result of the defendant’s negligence by imposing both a “reasonably foreseeable criterion” for claims as a primary victim and the strict proximity criteria for secondary victims who are not within the immediate vicinity of the accident.

This approach reveals several problems: (1) It is at odds with the thin skull rule since some victims, primary or secondary, may be devastated by a particular accident, but for want of “reasonable foreseeability” and for the condition of “normal fortitude”,

victims suffering from mental disorder may not receive compensation. The court could accept the Law Commission’s recommendation and set a determinative list of who can claim for psychiatric injury, instead of relying on the court’s burdensome approach of requiring proof of loving relationships to merit compensation.

(2) Common law courts devalue the grief of the secondary victims – as grief is not a recognized psychiatric injury. Although the courts are trying to promote “legal certainty” the courts themselves, have been unable to draw a clear distinction between primary and secondary victims (as in the case of rescuers who become subsumed by the conditions of the accident, as in the Frost case). Although the translation of moral injury into pecuniary value raises its own philosophical concerns, failure to award for moral injury also contradicts the principle of RII, where legitimate losses may go un-compensated. .

Relationships in Civil LawDoes the jurisprudence in civil law demonstrate some concern toward granting awards for secondary victims? a.1056 CCLC has no equivalent in the CCQ; Civil law demonstrated a concern for not extending liability when victim is dead – since 1056 applied to cases where the immediate victim dies (whereas where the victim is alive, the regime applying is 1053). Under 1056, the indirect victims that can claim include consorts, ascendants, and descendants4.

Consorts, ascendants, and descendants could not claim for solatium doloris under a.1056. 1056 was a direct importation of the Lord Campbell Act (from common law) that made a list of who could sue. Therefore, the court interpreted 1056 by common law principles, where the court did not accept solatium doloris as a head of damage.

a.1056 impacted how 1053 was interpreted. Did “another” mean the primary victim, or any secondary victim that was injured by the injury to the primary victim.

Regent Taxi v Congregation [1929] HL on appeal from Quebec CAFacts: The Congregation is an incorporated religious organization. Brother

Henri-Gabriel was a member of their teaching staff. He was seriously injured while travelling in an omnibus belonging to Regent Taxi. Both the trial and the appellate courts found that the injuries he sustained were attributed to the fault and negligence of the driver. The congregation made a third-party claim to recover money expended by the community in medical and hospital care for the injured brother, value of property damaged in the accident, actual damage due to the loss of services as a teacher.

4 Employers are not included in this list.

Issue: Is the congregation entitled to make claims as secondary victims?Held: Yes.Reasoning: The court had to establish the definition of the word “autrui” or “another”

in the meaning of the article on EC liability. The article is intended to confer the right to claim for damages to injuries directly attributable to the actions of the defendant. In this case, the congregation suffered no physical injury, only economic injury. The question becomes whether this claim is too detached from the original incident.

First interpretation of 1053: The majority (Anglin) of the court held that the meaning of the word

"another" was clear and that it included victims par ricochet. To interpret “another” otherwise would involve "a departure from the golden rule of legal construction, applicable to all writings, that the grammatical and ordinary sense of the words is to be adhered to…the words "to another" of 1053 are clear and present no ambiguity.

Arguments in the law that support a generalized definition of “another”: husband can claim for injury to his wife, 1056 allows for claims by heirs after the death of the immediate victim, the presence of a limitation on secondary claims under 1056 should by no means impair the claims made under 1053 since 1056 only deals with special cases.

Anyone who can show whose injury was caused by the defendant can claim. This means that causation determines the extent of the claim.

In this case, the injury prevented the congregation from benefiting from Gabriel’s full services and is entitled to compensation for them.

Rationale: Where the plaintiff is injured by the fault of a third party then the

plaintiff can file a claim for damages providing the plaintiff can demonstrate that the injury was caused by the defendant.

Critique:Second interpretation of 1053: 1053 limits the recovery to the primary victim, but only in cases of death

can the other classes of people can claim by 1056.Hopital Notre Dame et Theoret v Laurent [1977] SCC on appeal from QCAFacts: Mme Laurent goes to hospital, is misdiagnosed by Dr. Theoret (he said

she had a bruise, in fact she had a fractured hip). As a result of the delay in diagnosis, she had to undergo extensive medical treatment once the fracture was identified 3 months later. She and her husband sued the hospital as well as the doctor. Superior Court held the doctor and the hospital jointly and severally liable. The Court of Appeal upheld the judgment, with the exception of the award to the husband.

Issue: Can the husband recover for damages in this case?

Held: Yes – from the doctor only.Reasoning: The court refers back to Regent Taxi to show that even indirect losses

can be compensated under the civil law. The husband-wife relationship is an indissoluble union in which both property and expenses are shared. Therefore, the husband and wife and can claim for medical expenses and future losses incurred together. If it is the husband who pays the bills, he should be entitled to recover for the injury to his wife (otherwise no one can).

The court only denied the husband’s claim for “consortium” because of the couple’s permanent residency. The damages were included in the couple’s claim for future losses.

The hospital was not held vicariously liable, as there was no master and servant relationship between doctor and the appellant hospital. The medical care was given to the respondent under a contract with Theoret and not with the appellant hospital.

Rationale: The court recognizes that husbands and wives share common

property and obligations and therefore when one is injured, the couple can obtain compensation if one party is injured and the other pays the expenses. The court upheld the expansive meaning of “another” from Regent Taxi.

After the adoption of the CCQ, and after Augustus, the new code wrote out 1056 CCLC; the limits imposed as to persons who can recover damages whether the immediate victim is alive or dead were also abolished. The Quebec CCQ attempted to protect the integrity of the Quebec civil law and the SCC recognized claims for solatium doloris that can apply to anyone.

Without 1056, the claims for grief no longer had to be applied by UK common law principles. The civil law will allow for any type of claim – non-pecuniary or pecuniary – so long as the plaintiff can prove the causal connection. On the surface, no codified limits in the new articles on ECO, but the court does not raise issues of duty of care.

Augustus v Gosset revisitedSolatium doloris is a compensatable head of damages in Quebec . In expressly dismissing this head of damages in Augustus, the trial judge denied the appellant her right to restitutio in integrum, and the Court of Appeal was responsible for reviewing the award and developing an appropriate test for damages under the head solatium doloris. Considerations include the following: the circumstances of the death, age, nature and quality of the relationship, personality and ability to manage the emotional consequences of the death, and considerations about other

children.

Additional Notes:

In civil law, the court uses a different model since the claims made by plaintiffs are made against defendant without considering the nature of the duty owed to secondary victims. Instead, the courts will use the language of “directness” to avoid the use of language of relations.

We have two models that define who can recover: one based on relationships and one based on causal language. In the end, both systems want to restrict the number of victims who can sue for their injury.

Pure Economic Loss

Consider a situation where a secondary victim, whose injury flows from the injury of the primary victim, which flows from fault of defendant. Like the pure psychiatric injury, the pure economic injury results without physical or material damage.

Civil law is not concerned with pure economic loss (among other types of injury), but is concerned with causation. Civil law is concerned about extending liability too far. Both common law and civil law hold concerns about floodgates pure economic loss cases can involve loss of large amounts of money (even worse than pure psychiatric injury) – where the burden on the defendant can be extra-ordinary.

Elliot v Entreprises Cote-Nord Ltee [1976] Quebec CAFacts: Elliot negligently injures an employee (primary victim) of ECN

(secondary victim). Unable to work for ten months, ECN hires two foremen to replace its injured employee. ECN claims compensation for difference between paying the employee alone and paying two new foremen.

Issue: Can ECN recover for the difference in the cost?Held: No.Reasoning: ECN falls within the scope of another. Another should be given the

ordinary meaning (as per Regent Taxi), but the court recognizes the fear of floodgates. However, the court can recognize that prevention of floodgates can occur by limiting damages as a result of “direct and immediate consequences”.

The court identifies two alternative causes: either the injury to the employee or to the increase in business. When the employee returned to work the two new foremen were kept on. ECN failed to establish that the hiring of the two new foremen was due to incapacity of their employee. On the contrary, ECN hired them because of the rapid increase in the volume of business (cause #2).

Rationale: To claim for PEL, the damage must flow as a “direct and immediate

consequence” of the negligence of the plaintiff.Comment: Causation seems to be the means by which the courts can limit the

liability for recovery for PEL in Quebec.JE Construction v General Motors [1985] Quebec CAFacts: Employees of JEC break water main; GM employees cannot work

without water, but GM still had to pay employees. GM is trying to

recover for salary paid (because of collective agreement).Issue: Can GM recover for the salaries paid?Held: Yes.Reasoning: Action has been taken on this case on the sole basis of article 1053 and

the term “autrui”. The term “autrui” is quite clear but the difficulty here is the “cause” or that is, the damage caused by the defendant. There must be a direct and immediate consequence of fault in order to recover damages.

The problem in this case involves the word “caused”. It does not matter

that the injury flowed from the injury of the primary victim. The closeness in time/space or the existence of the intermediary damage does not matter, so long as the cause is linked directly to the defendant.

The possible causes of in the injury included: the fault of the defendant and the collective bargaining agreement (CBA). However, the court finds that GM lost the production value of the employees, which is linked to the fault of JEC – the court can get around the provision in the CBA.

Rationale: In order to recover for PEL, the loss must be a "direct and

immediate" consequence of a negligent act.

Common law has traditionally applied the BRIGHT LINE RULE to deny PEL entirely for fear of floodgates. The common law courts will employ duty of care to limit recovery. Common law courts will assess whether the relationship between the defendant and plaintiff is sufficiently close to warrant a duty of care. Common law courts will also examine the relationship between the primary and the secondary victim.

Weller v Foot and Mouth [1966] Queens BenchFacts: Weller, the plaintiff, is an auctioneer. Weller cannot auction in the cattle

market due to the escape of the virus. The defendant, Foot and Mouth, owed a duty not to allow the escape of a virus that might infect cattle.

Issue: Can plaintiffs, with no proprietary interest in anything that could be damaged by an escape make a claim?Held: No.Reasoning: We look at precedents to see if there is a duty of care and distinguishing

from Hedley Byrne, the court will consider Donoghue to determine whether it should expand the category.

The loss must be a “direct and foreseeable consequence” from the breach of the duty. The escape of a cattle disease could foreseeably cause an infection to other cattle. Although Lord Atkin expanded on the conditions of duty in Donoghue there must be a limit on who can claim,

because the liability of the defendant can extend through several plaintiffs.

The duty is limited to the cattle owner (which is reasonably foreseeable). However, that duty does not extend to the auctioneer, since they have no proprietary interest in the cattle.

Rationale: Where the plaintiffs are not directly affected by the fault of another

party – in terms of physical or property damage, then the ability to claim becomes very limited (traditional ruling by court on PEL).

In civil law, to try and limit liability, the court would try to find another fact that would break the direct and immediate link between fault of defendant and injury of victim.

Common law is concerned with allowing pure economic loss (D’Amato):(1) flood gates argument(2) the plaintiff can often better bear the loss; PEL often emerges in

commercial relationships and it is cheaper for the plaintiff to insure itself against injury rather than for the defendant to insure itself for being at fault.

(3) primary and secondary victims may have a contractual relationship, where if the contract was frustrated by the fault of a third party, the secondary victim can invoke a clause in the contract where the primary victim compensates it (and retrieves the loss by suing the defendant)

(4) PEL is seen as less worthy of protection than more physical damage, such as damage to property and person

(5) Deterrence will not be a factor, if the defendant is already forced to pay.

The common law has slowly opened the door for claims for PEL. In Hedley Byrne, the court accepted recovery for pure economic loss in cases of negligent misstatements; however, strict limitations were imposed through the principle of duty of care.

Relational economic loss – the loss flows from the relationship between defendant and direct victim and direct victim and plaintiff (contractual or extra-contractual). The plaintiff must suffer PEL because of the injury of the direct victim. It must flow from physical or material/property injury only.

Where plaintiffs are financially dependent on direct victim suffering from physical injury who does not die, husbands can traditionally claim for loss of consortium (but check statute). Common law sometimes allows employers to sue.

When there is no contract between primary and secondary victim the secondary victim cannot sue for fear of floodgates. Canadian common law departs from UK law by its acceptance of relational PEL when the relationship is contractual, and the courts may allow the claim (Norsk). In Norsk, there is no majority reasoning to decide which approach – McLachlin’s or La Forest’s – the court will accept.

D’Amato v Badger [1996] SCCFacts: D’Amato was had a ½ stake in Arbor Corp. After suffering injuries from

a car accident, D’Amato and Arbor filed suit.Issue: Can D’Amato recover? Can Arbor recover (alter ego)?Held: Yes. No.Reasoning: Arbor suffered pure economic loss – not consequential on physical or

material injury5. The Anns test is used to evaluate the claim. Derived from Rivtow, the loss must be “direct and foreseeable” otherwise the claim will be very limited.

McLachlin’s Test for Pure Economic Loss Emerging from Norsk : McLachlin’s approach is similar to Kamloops/Cooper.(1) Courts will consider policy considerations in the first stage of the test:

physical propinquity6, assumed/imposed obligations, and close causal connection. These factors are used to determine the relationship between the direct victim and secondary victim. She should have been looking for the relationship between plaintiff and defendant.

(2) Establishing a proximate relationship based on these factors can still be mitigated when the court will consider policy considerations in the second stage of the Anns Test, such as floodgates, insurance, loss spreading, allocation of risk in contracts.

La Forest’s Test for Pure Economic Loss Emerging from Norsk : La Forest sticks to the bright line rule and considers the policy

considerations. If the claim does not fall within recognized categories, the claimant can still file against the property owner (primary victim)7.

La Forest’s emphasis is based on policy considerations. Cases at the

5 Otherwise claims would be immediate against the defendant.6 For McLachlin, CN’s land was adjacent to the property of the bridge owner (bridge).7Negligent misrepresentation, negligent performance of a service, or negligent supply of goods. However, CN fell within the case of and relational economic loss. La Forest found that CN, however, would best be able to protect itself against the loss.

margin “are the price paid for certainty in law” (principled analysis). He rejects the proximity rule.

In the D’Amato case, the court does not know which approach to take. Although the court in D’Amato claimed that either test would make not make a difference, from the results from Norsk, we know that there is a difference in the results.

Arbor’s loss arises purely from its relationship with D’Amato. Under McLachlin’s analysis, the recovery could only be granted under the causal explanation and therefore, as the other requirements are not met (and since the loss was not foreseeable to the defendant) Arbor cannot recover.

In light of D’Amato’s loss of future earnings, the court found that based on D’Amato’s unique position within his company – a position that he would now likely not attain due to his injuries – he should receive compensation.

Rationale: D’Amato could have resolved the debate but it did not. However,

D’Amato can recover for loss of future earnings as a result of permanent injury to his body and due to his unique position within Arbor Corp.

Summary – Principled Flexibility [Stychin]In matters of relational economic loss, the question posed to the court: is whether the defendant should incur further liability? Proximity is not an adequate mechanism for comparing damages when the test is not principled: when the court cannot provide a coherent set of legal rules that provide a measure of flexibility and certainty as to when recovery can be allowed.

What is the actual relationship, based on the facts, and how proximate is it? Sthychin contends that by applying McLaughin’s test, we can have two similar incidents of loss, but because of the specific business arrangement between the direct plaintiff and the secondary victim claiming for REL, the decisions can vary.The court wants to avoid being unjust by providing an injured plaintiff with compensation when the cause the injury was due to the fault of the defendant; however, an arbitrary test of proximity simply replaces one form of arbitrariness with another – and arbitrariness countervails conceptions of justice and fairness in the judicial system.

By making strict and certain rules (or categories) as to who is eligible to recover, from an economic point-of-view, all parties falling outside the bright line of the rules will have to bear the loss. Those who could establish determinant relationships (because of complex financial

arrangements involving a lot of capital.

Additional Notes:

Summary of Legal situations that give rise to duties of care in common law:

When the defendant acts to harm the plaintiff directly and the parties are in a nexus giving rise to a duty of care, we proceed to assess fault and causation.

When the defendant omits to act, and an injury results to the plaintiff, the court will consider whether the relationship between plaintiff and defendant falls within a pre-existing category, otherwise no duty is imposed. The court will assess the nature of their relationship and the ambit of the duty. If there is a duty, the court will assess whether the defendants discharged the duty.

When the relationship between the defendant and plaintiff does not fall within a particular duty of care, the court will employ the Anns/Cooper tests to determine whether it should extend the duty of care to encompass this relationship (class of persons). The court will consider the proximity of the relationship and policy factors.

When the defendant is in the direct nexus of the incident but causes only psychiatric injury, the court will use the test in Page v Smith to assess whether a duty of care exists. The nature of the injury shapes the test for duty of care, since the duty of care will exist where the psychological injury was reasonably foreseeable. If the plaintiff is a secondary victim and suffers psychological injury, the court will employ the test from Alcock to assess whether a duty of care exists

CAUSATION AND THE SCOPE OF RISK

Factual causation – involves telling the story. What are the conditions that precipitated in the creation of the damage.

Legal causation – also called remoteness or proximate cause. This mechanism can be used to rule out those causes that are not legally efficient. Attributing links of cause and effect is done at the factual level, but attribution of liability is an assessment of remoteness. Remoteness is not recognized openly in civil law, only in common law. Judges will reject/accept causes often based on policy considerations and value of judgments – they look rational and objective.

Legal Principles Used to Determine Causation - the court employs two main techniques to determine legal causation – which is a choice among causes:(1) directness - we can trace a line of cause and effect between fault

and injury without any intervening events between them (a. 1607 re Polemis, but rejected in Wagon Mound I).

(2) foreseeability – would the RP (at some point in time and space) have foreseen the type of injury that occurred (re Wagon Mound I, and used in 2nd step of CVL analysis – see Brisson).8 We can manipulate this concept depending on who is applying this test.

Re Polemis and Furness [1921] Court of AppealFacts: Due to the carelessness of an employee when he dropped the plank, a

fire ignited in the hold of a ship. The accident ignited benzene gas that gas the fire.

Issue: Was the damage a direct consequence of the act?Held: Yes.Reasoning: The extent of the damage is immaterial when considering whether it

was foreseeable or not. The damage was directly traceable to the fault of the defendant’s servant. The dropping of the plank was both a “factual” and a “legal” cause in this case – which is why the court attributed liability to the stevedores (and their employers).

Rationale: Whether or not the damage was foreseeable, if the damage is

directly linked to a negligent act, then there is causal link and therefore liability for the harm.

8 For duty of care, the focus is on the class of persons with whom we enter a relationship (with the exception of psychological injury). For fault, the focus is on whether we can cause the injury without necessarily considering the nature of the damage.

It must be foreseeable that there would be some kind of damage from the negligent act (reasonable person test of fault), it is immaterial that the exact damage was unforeseeable.

Critique: This approach to legal causation was criticized in Wagon Mound where

the directness should be abandoned as test for legal causation as it is considered to be unfair to defendant, who losses disproportionate to what he ever expected from his actions and in proportion to his fault. A better test: whether damage and consequences of accident were foreseeable to the defendant (not the reasonable person).

Overseas Tankship v Morts Docks (Wagon Mound I) [1961] HLFacts: A large quantity of oil spilled into bay. The ship crew made no attempt to

disperse the oil. The engineering manager at wharf halted welding when he noticed oil. He made inquiries about continuing the work and was led to think it was safe to resume work. He ordered work to continue but also to follow safety precautions. The work continued until the fire broke out?

Issue: Is the dock responsible?Held: YesReasoning: The Polemis rule is rejected by House of Lords. It would be immoral

and unjust to invoke the test in Polemis to hold a defendant responsible for damage that he could not reasonably foresee – exposing the defendant to too much liability for the simplest act of negligence that leads to consequences that are abnormal.

In this case, the trial judge found that the spilling of the oil was not a reasonably foreseeable in light of the expert evidence.

Rationale: Only damages that can be reasonably foreseen by the defendant

are worthy of attribution of liability. The court is worried about putting consequences on the defendants where damage is out of proportion to the fault. Is this compensation-centred? Does this fulfill the principle of restituo in integrum? Is sparing the defendant from liability from harm a function of ECO?.

The following case is an anomaly in civil law:Brisson v Potvin [1948] QCAFacts: Potvin, un camionneur, a stationné sur un trottoit et sur la plus grande

partie de la chaussée (il a dépassé la ligne transversale). Potvin oblige donc les piétons à contourner son vehicule. Il laisse un passage exigue pour les voitures arrivant en sens inverse. Tremblay a blessé Brisson, la pupille du demandeur, parce qu’il n’a pas vu celle-ci transverser. Potvin n’a rien prévu pour faire traverser les piétons.

Issue: Est-ce que Potvin peut-être tenu responsible pour l’accident?

Held: Non.Reasoning: Juge Pratte a d’abord examine la nature de la faute. Il y a une necessité

en pratique de stationer, par consequent les gros véhicules dépassent la ligne médiane. Qu’il ait commis une infraction ou non, ne suffit pas à le tenir responsible. The bylaw demonstrates a breach of a legislative standard and it can evidence fault on the part of Potvin.

Pratte has to deal with directness before foreseeability. La veritable question c’est est-ce que le stationnement est une cause

directe normale. Pratte a dit que la dommage doit être la cause logique, qui est normalement prévisible. La presence d’une enfant inattentive et un conducteur qui n’a pas signalé son approche constituent deux faits “independants” imprévisibles de Potvin. Nothing proves that the ”defendant “ knew that there were children in the street. Potvin would have to have known that children would likely to be hurt by his actions.

Rationale: Justice Pratte’s decision merges the two tests – considering

directness first, then moving to foreseeability.Critique: Directness creates a large scope to attract legal causes. Foreseeability

narrows the scope, and it appears on the face that the two tests are irreconcilable.

Reasonable foreseeability – not what the defendant had known, but

what the defendant should have known – as the reasonable person.

Justice St Germain holds that not just children would have to walk around, but all pedestrians would have to cross. When considering causation, he relies on directness, since he does not separate the other intervening events from the fault of the defendant, Potvin.

Does the language of directness and foreseeability give flexibility to the judge to adjust liability as the judge thinks fit? Returning to Justice Andrews’ dissent in Palsgraf, the judge considers whether the loss is “proximate” to the fault using directness. Directness depends on the judge’s determination of a “common sense connection” between the fault and the injury. In Wagon Mound, the court recognizes how generous the directness test can be.

The following case evidences the arbitrariness of the directness test.Morrissette v McQuat [1958] QCAFacts: Le camionneur, demandeur, charge des tubes de propane chez la

defendresse. A cause d’une rupture de la chaîne qui assujettit (attache, retient) les cylindres, le demandeur est tombé sur une tige de fer effilée

que la demandresse avait installé afin de faciliter les chargements.ISSUE: Est-ce que la defendresse, entant que propriétaire est responsable (comme maitre d’un chose sous 1054, ou comme coupable d’une negligence) de l’accident et doit telle payer des dommages?Held: Non.Reasoning: La chose qui a causé les dommages doit être la cause déterminante de

l’accident (Mazeau). La cause géneratrice de l’accident est le brise de la chaîne. En conséquance, le demandeur est tombé sur la tige qui est resté dan son usage normal. We need both causes to produce the injury.

To determine the direct cause of the injury under 1053: 9

La defendresse n’a pas agit pour que l’accident se produise. Même si l’extremité de la tige est effilée, le placement de la tige n’est pas la cause directe du préjudice, donc la défendresse ne peut être (re)tenue pour responsable.

To establish causation, it is essential that the injury was brought forth by the metal spike and because of the metal spike, not just because the spike intervened in the causing of the injury (it has to cause the accident to happen).

Rationale: Immediate and determining cause was the breaking of the chain.

Although the presence of the spike was the factual cause, the breaking of the chain snapping was the legal cause.

Using the foreseeability test, it would have been easier to restrict liability,

because it does not seem reasonably foreseeable that breaking a chain would lead to falling on a spike. In this case, the court uses directness restrictively, but the judgment could have gone either way.

Graziella Joly v Ferme Remi [1974] QCAFacts: The defendants crashed their car into a hydro pole, causing a power

outage at a farm. The plaintiff’s chickens died as a result of a ventilation failure.

Issue: Are the defendants responsible for the damage to the farm? Was the damage a direct and immediate consequence?Held: Yes.Reasoning: The line between awarding for a prejudice and letting the loss lie is

tenuous. However, where the victim suffers a prejudice that is clearly the result of the plaintiff – even if the prejudice is aggravated later – then the plaintiff is responsible (Chartier).

9 1054 did not apply since the spike did not act autonomously.

There was no intervening act to absolve the defendants of liability.Rationale: Where the consequences flow from the fault of the defendant

without an intervening cause that would absolve them of responsibility, then the defendants can be held liable.

Critique: The defendant did not prepare his coupe in case of an eventuality such

as the loss of power. She should have anticipated this possibility.For Justice Gagnon, using foreseeability to address causation, is an importation of a common law application (for causation). It is not predominant in civil law in this context, though it is in the analysis of fault.

The flexibility at the level of: the definition of the injury (Wagon Mound I, Hughes) and the whether the injury was a foreseeable possibility (Wagon Mound II).

Hughes and Lord Advocate [1963] HLFacts: Post Office negligently leaves manhole and lamps unattended; a child

enters manhole and knocks over lamp. The paraffin escapes from lamp and causes an explosion, leaving the child severely burned.

Issue: Is the post office liable?Held: Yes.Reasoning: Reasonable foreseeability test of remoteness requires neither

foreseeability of the extent of a plaintiff's injuries, nor even the manner of their occurrence: if the type of injury that occurred was foreseeable, then the defendant is liable.

It was not reasonably foreseeable that the boys could be injured by an

explosion, but the court found that injury by burning was foreseeable.

In this case, it was reasonably foreseeable that PO's negligence, leaving the lamps and manhole unattended, would burn the hands of a curious child. The child plaintiff suffered burns, and therefore the PO is liable. The facts that the burns suffered were more serious than was reasonably foreseeable and that the manner in which the accident happened was not reasonably foreseeable are considered irrelevant.

Rationale: Reasonable foreseeability test of remoteness requires neither the

foreseeability of the extent of a plaintiff's injuries, nor the manner of the occurrence of the damage: where if the kind of injury that occurred was foreseeable, then the defendant is liable.

Critique: This ruling diminishes importance of Wagon Mound I and seems more

consistent with the directness test of Polemis.

If we want the plaintiff to recover, the judge must define the injury in a more general way (like injury by fire). If we want the defendant to be absolved of liability, the judge must define the injury very narrowly, because the type of injury may not be reasonably foreseeable to the defendant.

Smith v Leech Brain Co [1955] HLFacts: Smith works in a metal factory. A piece of molten metal hits his lip and

the burn does not heal. The burn aggravates a pre-existing condition, and Smith develops cancer. He dies.

Issue: Is Leech Brain responsible for Smith’s death?Held: Yes.Reasoning: Since Smith’s burn was reasonably foreseeable, the fact that its effect

was more serious that one would have imagined does not excuse Leech from liability.

Rationale: A defendant will be held liable for the full extent of a plaintiff's

injuries, notwithstanding that they were more serious due to a pre-existing condition, or the increased vulnerability of the plaintiff, as long as the initial injuries were of a kind that was reasonably foreseeable.

Again, we can continue to adjust the type of injury following the rule in Hughes. Is the type of injury cancer or is it a burn that may lead to further injury such as cancer. Legal causation, under both tests, involves some measure of flexibility on the part of the judges.

Additional Notes:

Conaghan and Mansell reveal a tension between the principle of foreseeable injury in Hughes and that of thin skull in Smith. The tendency for courts follows that as we move away from the individuals who actually commit the fault to find those who have deeper pockets, courts will find “weaker” causal links because they consider problems to originate at the individual level rather than as products of social processes. Plaintiffs, therefore will be denied compensation because a the actor who committed the fault may be too far subordinated from an employer or an insurer to establish causation, where causation is premised on risk creation.

Multiple Wrongdoers and Multiple Causes

We studied alternative causes in term one: which condition is out factual cause?

Now we are considering legal causes. Unlike the first term, we are looking at cumulative causes. We may have (1) several wrongdoers or (2) a conjunction of a fault and a non-faulty event.

(1) Several wrongdoers can contribute to one damage by common faults (where the defendants commit the fault together, although each could take a separate role), distinct but simultaneous faults (each commit part of the injury at the same time), distinct and successive faults (faults that follow each other in time).

We may be able to divide the damage into parts, but generally, the damage is indivisible. For example, the rape in the Minto case cannot be divided. If the injury can be divided, it is easier to treat it that way, since the proportion of the damage and damages can be allocated to each defendant.

Q et al v Minto Management et al [1985] OHCJ – distinct & successive faultsFacts: The plaintiff was raped in her apartment by an employee of Minto (fault

2). Three months earlier, a different woman was also raped. Employees had master keys to the apartments, and Minto knew that the first rape was likely committed by someone with master key. Minto did not warn the tenants to take extra precautions or change the locks (fault 1).

Issue: Is the act of the rapist an intervening act to absolve Minto of liability?Held: No. Minto is still liable.Reasoning: The action of the rapists was not too remote to be reasonably

foreseeable. Minto created a foreseeable risk that someone (though not necessarily the rapist) would gain entry to its customer’s apartment, by failing to provide proper locks (and/or by making master keys available) to create a foreseeable risk of criminal activity.

A defendant cannot rely on the intervening act, since it was Minto’s lack

of care that created the conditions for the act to occur.Rationale: An intervening act, even if intentional and/or criminal, does not

break the chain of causation if the defendant has created a foreseeable risk of that consequence.

Deguire Ave Ltd v Adler [1963] Quebec CA – distinct & successive faults

Facts: M et Mme Carrier ont intenté un action contre Adler, administrateur de

l’immeuble Park Royal et Deguire, propriétaire, en raison des blessures qu’ils ont subi dans leur appartement suite à l’explosion survenue dand l’appartement adjacent.

Deguire a employé Adler comme administrateur et Adler est aussi entrepreneur en construction et donc ill a aussi des employées personels dépentre. Deguire a egalement employé un surintendant, Boivin, qui a lui-même employé deux concierges, Gagnon et Garel.

L’explosion est survenue du cours de la visite de l’appartement adjacent par le concierge Garel et un client/visiteur, Evans. On suppose que la cigarrette d’Evans a provoqué l’explosion, mais ce n’était pas certain. Adler a employé des peintres pour faire les travaux dans l’appartement. Les paintres ont omis de fermer le tuyau de gaz et n’ont pas informer le surintendant (faute #1).

Le surintendant n’a pas verité les compteurs de gaz et Garel n’a pas verifié le tuyau (faute #2). The plaintiff’s apartment was full of gas.

Issue: Qui est responsable de l’explosion et qui doit payer les indemnités?Held: Deguire et Adler doivent payer.Reasoning: The painter's act of negligence is not too remote from the injury despite

the temporal distance – the fault was continuous, because the painters created a danger that was suspended and must be retained as a determining cause.

The janitors’ negligent act must also be retained as a determining cause because if not for the gas being turned on, the explosion never would have happened.

Parce-que les deux fautes sont nécessaires à l’accident, la responsabilité est partagée par les défendeurs. Au lieu de repousser la responsabilité en trois actions séparées, le juge acceuille une action contre les deux défendeurs, qui partagent également une indemnité.

Rationale: In cases of distinct but successive faults giving rise to a single

damage, the authors of the faults will be held liable unless it can be proven that the successive fault(s) broke the chain of causation.

The judge divided the liability 50-50 (solidarité). Since both were

necessary to contribute to the explosion causing the whole of the damage (indivisible).

Critique: Justice Owen holds that the temporal distance between fault #1 and fault

#2, and the fact that but for the negligence of the janitors there would have been no explosion.

Thoughts for Discussion:Is it appropriate to restrict an individual’s responsibility because of the intervention of another wrongdoer? Maybe it is not appropriate since the first act may put the series of acts into play. If an event is so far removed, we might be able to eliminate one’s fault. But, to restrict it, we would be holding one defendant responsible when others contribute.

Should the victim be compensated twice? No, but what happens if one defendant is rich and the other is poor? If one defendant is insolvent, it is better for the victim to have the richer defendant bear the loss and have the richer defendant sue the other one. With alternative defendants, all at fault, ECO should compensate the victim and therefore, if one victim and can pay and the other cannot, it is better for the solvent defendant to pay than to have the victim bear the loss.

The defendant need only be a cause for the injury to be held liable, however, the defendant can argue that there were other faults that broke the chain of causation or were unforeseeable to the defendant.

Mechanisms to Determine How to Apportion Liability

SOLIDARITÉ (JOINT AND SEVERAL LIABILITY) – If we have common or distinct faults that produced an indivisible injury where all faults have participated in the injury (a.1526 and provincial statutes), then the victim can sue any of the defendant, either defendant, or all defendants for the full amount.

Is this fair in terms of amount? It is a disadvantage to rich defendants. Payment by one defendant frees to other defendant against the plaintiff,

but the defendant who has not paid owes contribution to the other.

How do we decide who pays how much? If we have an indivisible injury, how do we say which part was caused by who – since each of the defendants has caused the whole of the injury (and therefore causation cannot work). It is much easier to apportion by fault, but ECO normally does not measure degrees of fault. Yet, in both systems, the decision to pay how much is based on fault (a.1478 and provincial statute). Usually, we do not discuss degrees of fault unless we are talking about exemplary damages, for “gross fault”, or when plaintiff is at fault.

Caneric Properties v Allstate Insurance [1995] QCAFacts: Caneric has a permit to demolish a building. It turns the heat off and a

water pipe bursts. The company calls the City of Montreal to repair the burst. The city does not finish its repair and major damage (flood) to building ensues and damages the neighbour’s basement.

Issue: Which faults are the legal causes of the flood and how do we apportion liability?

Held: Both parties are liable.Reasoning: Fault #1 – Caneric failed to close water to building/keep it heated at a

minimal level. Caneric called the city to repair the damage. The court dismissed this fault as too far temporally from damage to be retained as cause. Although this is an exception to the directness approach, the temporal limit informs the directness test.

Eliminating this fault because of its temporal distance does not apply the principle of directness (or foreseeability), which courts normally use. Being too direct in time affects the directness of fault #1.

Fault #2 – The City did not finish the repair to the pipe, and it could have turned the water off or warned the parties.

Fault #3 – Caneric should have done due diligence by checking its property after notifying the City of the problem.

The majority found that the 2nd and 3rd faults contributed to the realization of the injury. At both of these stages, the damage was a direct, immediate and logical consequence of the faults; the injury could have been prevented without these faults. Justice Baudouin discusses the use of reasonable foreseeability in civil law to show that the author of each fault could foresee the damage.

These faults roughly equally contributed to the damage and therefore each must pay half of the damage.

Rationale: Where two equal, successive, and separate faults contribute to a

single injury, both defendants can be held liable. Baudouin did not provide an elaborate explanation for his apportionment

of responsibility 50-50. However, had we kept the first fault of Caneric, Caneric might have been held 66.6% liable, instead of 50% liable.

PARTAGE DE RESPONSABILITÉ (Apportionment) – each defendant is liable for the part of the injury that he has caused (divisible injury). This happens when we can attribute one part of the injury to each of the defendants. This causes elements of the injury that seem indivisible, we can identify different parts of the injury to attribute to each defendant. This mechanism looks at causes and not faults.

NOVUS ACTUS INTERVENIENS - when we are faced with an indivisible injury, we may think that we are in the first model, the first defendant will argue that the second defendant broke the chain of causation to absolve the first defendant of liability.10

10 This is applied less often than jointly and several liability.

How do we know when the second fault breaks the chain of causation?

Q et al v Minto Management revisitedMinto argued that the rapist broke the chain of causation. Minto, however, could foresee what could have happened by its non-action.

The fault of the rapist did not break the chain of causation because it was the “very likely thing to happen” if Minto took had not taken precautions (sounds like reasonable foreseeability and language of risk). Was the rape reasonably foreseeable? Yes.

A more severe second fault is a necessary condition, but it is not sufficient.

Additional Notes:

First step of legal causation: are we going to retain faults 1, 2, or 3 as legally responsible (we use directness in civil law/foreseeability in both systems)? We do not consider the other faults, only the relationship between the particular fault and the injury (no novus actus interveniens here!).

Second step of legal causation: when multiple wrongdoers are involved, how do we allocate responsibility and decide how much each pays? (1) Severity of the fault as between defendants in joint and several

liability and it helps courts to decide whether the next fault may break the chain of causation

(2) Reasonable foreseeability helps us to determine whether another fault has broken the chain of causation (Minto).

(3) Risk creation/increase for cases involving intervening act (Minto)

(4) Factual causation when the injury is divisible.

At this stage, we put the two faults together. Could defendant 1 have reasonably foreseen the fault committed by defendant 2 (novus actus interveniens)? Can we divide the injury and apportion part of the injury to the each cause? Are the parties jointly and severally liable – is the damage indivisible and which defendant pays how much based on severity of the respective fault?

In real life, these two steps are done together!!!

Price v Milawski [1977] OCAFacts: The plaintiff injures his ankle. Dr. Murray takes an x-ray on the wrong

ankle and mistreats the injury. Dr. Carbin examines the x-ray, but does not order a new x-ray when the injury becomes worse. The claimant suffers a permanent injury to his ankle as a result.

Issue: Did Carbin’s fault break the chain of causation?Held: No; however, both doctors are liable for the resultant disability.Reasoning: Murray’s liability: reasonably foreseeable that another doctor looking

at the inaccurate x-ray in his patient’s file would rely on the x-ray (and thus the injury would be aggravated).

Carbin’s liability: failed to stop the aggravation of the injury by not ordering another x-ray to ensure that his (and Murray’s) diagnosis was correct.

Rationale: Where the second fault is a reasonably foreseeable consequence

of the first fault, then the court can hold the first negligent actor liable for future damages as a result (no new intervening act).

Additional Notes:

Multiple Causes (Faulty and Non-Faulty Events)

We may have a situation where non-faulty factual causes that are also direct/foreseeable legal causes for the injury.

The question is not how much each will pay, because a non-faulty factor will not attract liability, but it will have a legal impact on the liability on the faulty actor. Will the non-faulty event reduce (or even eliminate) the liability of the faulty actor? We can have a situation where a non-fault precedes (Athey, Smith) or succeeds a fault.

Apportionment is only useful for divisible injury. A non-faulty actor will never pay money, because the non-faulty actor cannot be held jointly and severally liable. It is not fair that the non-faulty actor should have to chase the faulty actors. Novus actus interveniens would apply only when the non-faulty cause succeeds a fault. So what do we do?

Athey v Leonati [1996] SCC – preceding non-faulty causeFacts: The plaintiff was injured by two successive car accidents occurring only

a few months from each other (faults 1,2). The plaintiff had a history of minor back problems (non-faulty cause) and the defendants contend that the injury the plaintiff sustained during his exercises was due to his pre-disposition and not to the consequences of the accident.

Issue: Will the pre-existing back problem reduce the liability of the two wrongdoers?Held: No.Reasoning: Even without the car accidents, the plaintiff would have suffered

problems.

The common law has not required plaintiffs to identify the “sole” cause of an injury but rather those factors that materially contributed to it (Snell, McGhee). The plaintiffs, under the CRUMBLING SKULL RULE, would be responsible for putting the victim back as they found him – as a man with a pre-existing back condition; however, they would not be liable for repairing the damage up to the level of a fully healthy back.

The court also rejects the loss of chance argument, finding that the faults

of the defendants actually contributed to the injury and not simply increased the risk of an injury occurring at some point in the future.

The trial judge concluded that both the accidents and the pre-existing condition were causes. The accidents were a “necessary ingredient” to lead to the effect at the gym. Since the defendants must take the victim as they find him (thin skull), then they are liable for the full damages. The trial judge could have reduced the damages after, by applying the “crumbling skull rule”.

Rationale: As long as the defendant is “a” cause of the harm and therefore

has contributed to the injury, the court will ignore non-faulty factors at the legal causation level. The contribution must be non-trivial, but a small contribution can be sufficient. The defendants can, however, argue that they not have to repair all of the damage.

In civil law, we do not use the same language, but the rule still applies.

Is this fair? It does not seem fair that should a defendant contribute 25% of the injury but have to pay for 100% of the injury.

At the level of the assessment of the damage, the court can take two options:

1. It could create a “legal fiction” and divide an indivisible injury.

2. The court could also ask what would the plaintiff’s life had been had the faulty cause not occurred? This appears like the loss of chance to assess the value of the injury. The court did not do this in Athey.

Applying the principle of restituo in integrum, the court will restore the position of the plaintiff to his original position. In Athey, the court had to imagine the plaintiff’s life had the accident had not occurred. Justice Major did not find evidence to show a diminishing of capacity, and therefore he awarded the full amount.

Although the trial judge discounted 75% of the contribution from innocent causes, Major rejected the loss of chance argument, because 51% is the threshold for the balance of probabilities – and therefore it would absolve the defendant completely. Major did not want to absolve the defendant, and therefore held that the faulty cause was beyond the de minimis range. The court rejects “loss of chance”, but Major would have made a deduction at the level of the assessment of the damage had the evidence shown a damaged position before the accident.11

Novus Actus Interveniens

In civil law we ask ourselves [a.1470]:

11 Normally, we use loss of chance for alternative causes. In Athey, we 100% know the defendant actually contributed to the injury, even though the defendant only contributed 25% to the damage, which justifies Major’s judgment. In Laferriere, we did not know whether the defendant actually contributed. For loss of chance, we create “another” injury – ie. loss of a chance to avoid death. We use loss of chance to avoid the problem of causation between the defendant’s fault and the real injury.

1.Was it foreseeable for the defendant that the non-faulty event would occurs?2.Was it possible for the defendant to prevent the event from occurring?3.Was the non-faulty event external to the event?All of these factors must be proven by the defendant, and only if these events are proven can the defendant show novus actus interveniens.

The court does not want to put the victim in a better position than he was before. The defendant will have to restore the victim to the position before his fault.

Placing the Plaintiff under Scrutiny

We may have a situation where the defendant commits a fault, but the plaintiff also commits a fault that either precedes or succeeds the defendant’s fault. The plaintiff may have put himself into a situation where it is foreseeable that the defendant will commit a fault (for example, when a person omits to take preventative measures to guard oneself against injury)12.

With divisible injury, we can simply apportion the liability, whereas with an indivisible injury, the cases become more complex.

I. In the case of PREDISPOSITIONS, we have a conjunction of a fault and a non-faulty event. In Smith, the victim has a predisposition to cancer. In both systems, the “thin skull rule” applies and thus the plaintiff must take his victim as he finds him.

However, in Athey, there was no predisposition to a hernia, only to back problems.

Smith v Leech Brain visitedThe employer did not adequately protect its employees and the plaintiff suffered a burn. The victim had a predisposition to cancer.

Suppose we applied the rule from Hughes to this case. The defendant would plead that the type of injury must be reasonably foreseeable. The cancer and death is unforeseeable. The plaintiff would argue that it does not matter if the injury is unforeseeable; however, the thin skull rule is an exception to the foreseeability rule, because it is linked to a predisposition.Marconato and Marconato v Franklin BCSCFacts: The plaintiff had paranoid tendencies and after being injured in a car

accident by the defendant, she suffered anxiety disorder.Issue: Is the defendant responsible for the psychological damage?Held: Yes.Reasoning: The injury must be linked to the predisposition (this did not happen in

Athey). As a result of a modest physical injury caused by the defendant, the defendant aggravated the plaintiff’s predisposition to result in her injury.

Rationale: Eggshell personality/psychological predisposition will also qualify

as a predisposition.Critique:This seems to be a policy choice favouring the plaintiff as opposed to the

12 In common law, we treat this question as a defence.

defendant. With sufficient evidence, we might be able to discount from the cost. The court will assess the risk of the plaintiff realizing the injury anyway. Would Smith have died anyway? What is the chance of that injury?

II. With victim’s behaviour cases, we have a conjunction of the defendant’s and plaintiff’s fault to contribute to 100% of an indivisible injury.

Historically, in common law when the victim is at fault, the court would reject the defendant’s claim. These victims are undeserving of compensation and the courts tried to target a single cause – to have plaintiffs care for their own safety.

Civilian courts merely reduced the liability, based on the gravity of the respective faults, which has become the standard in both systems [a.1478, Contributory Negligence Acts]. WE DO NOT APPLY JOINT AND SEVERAL LIABILITY, but the plaintiff will receive compensation for his portion (not for 100%).