Negligence step 1 Has There Been Damage?
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- Step 6) Remoteness
- Canadian Version
- C) Is the
- Contributory Negligence
- E) i) Did an
- RULE
- Step 7) Defences
- Case: Recognized by Negligence Acts
- Due Diligence
- Seatbelt Defence
- Voluntary assumption of risk : Rule
- Step 8) Liability
- Several Liability
- BC Ferries Agreement
- Facts
BUT Kauffman v. TTC [1959]: kids horsing around on top of stairs = P falls and hurts herself. D not liable because she would have done so regardless of whether or not D put a railing there. Davidson v. Connaught Labs [1959]: Failure to warn doctors about the side effects of rabies serum is irrelevant because doctors’ conduct would not have changed regardless. Horsley v. McLaren [1969]: Passenger fell overboard into frigid Lake Ontario; the negligent rescuer was not liable because the deceased would’ve probably died anyway, particularly as this had given him a heart attack. Jobling v. Associated Dairies: P had a condition which would’ve rendered D’s damage moot in about 3 years = damages reduced accordingly because you cannot put P on a better position than he would have been in. Step 6) Remoteness: Was the damage too far removed from the negligence to hold it against D? A) Generally: Test Case (Wagon Mound 1) Overseas Tankship (UK Ltd) v. Morts Dock and Engineering Co. Ltd. [1961 AC]: Wagon Mound spills furnace oil into water, D stops work, inquires, concludes it’s okay so long as they work safely. It starts a massive oil fire, damaging many ships. Courts: “Yes, this is possible, but nobody would’ve ever thought so. The only liability is for the damage of the fire, which experts thought was impossible.” Overturns Re Polemis: (D can be held for all consequences, no matter how foreseeable) Canadian Version: R. v. Coté (1974 SCC): all that matters is the general class or character of damage, not the circumstances of it. B) Is The Type of Damage Too Remote? Cases get won and lost on how you frame the harm. RULE: If the type of damage is foreseeable, the circumstances in which it arrives are irrelevant. Test Case Hughes v. Lord Advocate [1963]: City workers cover open manhole with tarp, surround by lamps, go on break. P (kids) fuck around with the stuff, trip over lamp falls into hole, explodes, knocks him into hole, gets burned etc. Foreseeable because you’re not supposed to be able to foresee the way damage happens, only that this type of damage can occur. You can foresee kids getting burned, falling down the hole, that’s enough. Doughty v. Turner Manufacturing [1964 QB]: Asbestos cover knocked into heating bath, causing an explosion, hitting P. Courts: “only splashing is foreseeable, not this eruption.” Lauritzen v. Barstead (1965 ABSC): D and P driving together, D drunk, grabs wheel. Accident, lots of trying to rescue and get help. P gets frostbite. Courts: “this was foreseeable.” Oke v. Weide Transport (1963 MBCA): D knocks over metal post on strip of gravel between hwy lanes. V is impaled. Court follows Wagon Mound 1: “no way he could’ve seen this freak accident” Weiner v. Zoratti (1970 MBQB): foreseeable that negligent driving = hit hydrant = flooding basement is foresesable. Tremain v. Pike [1969] UK: It was rat urine, not a rat bite, that caused your disease. We don’t think that’s foreseeable. Assiniboine South School District No. 3 v. Hoffer and Greater Winnipeg Gas Co (1970 SCC): Dad modifies Ski-daddler so son can start it easier. Son takes off, plows into exterior gas company line, causing an explosion. Kid and dad 25% liable, gas co 50%. Foreseeable that gas pipes would be damages. Falkenham v. Zwicker (1978 NSSC): D crashes into fence, some staples come out into grass. Farmer tries to remove some, doesn’t get them all. Cows eat them, they shred cows’ stomachs. P failed to mitigate the loss, but that staples would come out of the fencepost is foreseeable. Jolley v. Sutton London Borough Council: [2003 HL]: 14 y.o. boy and his friend fucking around with a boat D left in a yard and didn’t remove. Trying to repair it, hoisted it up by a car jack, crash! HL: “totally foreseeable that kids would fuck around with a boat like that one” C) Is the possibility of the type of damage at issue? RULE: If it’s thought to be impossible, it’s not foreseeable Test Case Wagon Mound 2: Overseas Tankship v. Miller SS Co Pty. [1966] AC: same basic scenario as Wagon Mound 1. Courts: the difference is not foreseeability (you can foresee aliens and shit, too), but whether or not it’s possible enough that the risk “would occur to the mind of a reasonable man” and that he’d act to correct it. In this case, they knew it had happened in WM1, so they’re liable. =the test is “what is possible and not what is probable” Shirt v. Wyong Shire Council [1978 NSCCt]: waterski injuries from shallow water are possible. McKenzie v. Hyde (1967)(MBQB): D digging, hit a gas line, gas seeps and explodes in nearby basement. Reasonably foreseeable, possible. Palsgraf v. Long Island RR Co [1928 NYCA] Train leaving, 2 dumbasses running after train get pushed to board the train in time. One of them has a suitcase full of fireworks which drops thanks to the negligent pushing of D’s employees, explodes. It rattles the platform, and P, at the other end has an industrial scale fall on her Majority: “P is trying to claim as a vicarious tortfeasee; how the fuck can D anticipate a guy with a suitcase full of fireworks? This is a huge cause-and-effect stupidity. Diss: The duty of care was to those around the scales, and they thus owed a duty of care to P. This isn’t a broken chain of consequences.
Majority: of course the kid put his arm out the window, it’s what kids do. A sign telling them not to is not enough, and how are they to know? The kid is not an independent actor in such a situation. Stermer v. Lawson [1977]: those with dangerous products must be reasonable about preventing injury. Bradford v. Kanellos [1974 SCC] flash fire in restaurant = extinguisher = hissing sound = D freaks, “GAS!” = P trampled. Not foreseeable from negligence regarding grease on the grill. Canphoto Ltd v. Aetna Roofing (1965) (MBBQ): D leaves propane tank in alleyway over weekend; someone fucks with it and it causes a fire which hurts P. This is not an intervening act b/c if flows directly from D’s negligence Stansbie v. Troman [1948 UKCA]: Decorator liable when he goes out without locking the door and thief steals stuff. Obviously foreseeable, directly flowing. E) ii) But did the “Intervening Act” stem from a recurring situation? RULE: The recurring situation tends to make the intervening act foreseeable: frequently with rescuers Test Case (Read for the dissent for a good application of this rule) Horsley et al v. MacLaren et al (The Ogopogo) (1972 SCC): D operating cabin cruiser. Matthews falls into frigid waters. D fucks up rescue procedure, leading to Horsley to jump in. M lost, H dies, and others jump in to rescue H and almost die. Majority: situation of peril was created when M falls into water. D fucking up was an error in judgment under pressure, not b/c of drinking/negligence. Diss: D created a risk when he took the boat out, as is recognized in maritime law. H was the good Samaritan, who jumped in thanks to D’s negligent fuckups. Totally natural and probable consequence of poor handling of a boat. (Also, you can sit by and smoke a cig and watch your neighbor drown. No duty to act, just a duty not to fuck it up if you do.) Seymour v. Winnipeg Electric Ry (1910 MBCA): “we should know humanity is good and will jump to rescue.” Chapman v. Hearse (Aust HC 1961): rescued held partially liable for injuries to rescuer. Cleary v. Hansen (1981 ONSC): rescuers may be found contributorily negligent. Moddejonge et al v. Huron County Board of Ed (ONHC)[1972]: D employee rescues 1 girl and drowns trying to save another. Court: “She had a duty, she did her best. Who cares if she was negligent? She’s dead.” Corothers v. Slobodian (1975 SCC): P sees accident, stops, runs to get help when D sees her, slams on brakes, jackknifes. SCC: “this is what people do in an emergency. Leave it alone.” E) iii) But did the “Intervening Act” stem from intermediate inspection? RULE: If you did not warn the inspector of a fault of which you aware, you likely remain liable. Test Case Ives v. Clare Bros [1971 ONHC]: D makes gas furnace used by gas company X; D aware of problem. 3 inspections from X, no warning about danger of burns to P. D liable for failing to warn “customers, suppliers and service men”; X also liable. RULE: If you’re not particularly negligent and the intervening actor is negligent, you are not liable Test Case Viridian Inc. v. Dresser Canada (2002 ABCA): X sells D general diaphragms. D puts them into high pressure gas compressors, which it sells to P. Diaphragms not meant for this kind of thing; they explode. X not liable because it was not probable or foreseeable that D would use these without testing them, inspecting them etc. Dutton v. Bognor Regis [1972 UKCA]: both builders and inspectors liable for shoddy house Taylor v. Rover Co Ltd [1972 UKCA]: D1 manufactures chisel, which D2 issues to employees (P). Chips fly off and injure P. D1 not liable because D2 knew about the defect and failed to correct. Smith v. Inglis Ltd (1978 NSCA): P cut off third prong of plug on stove made by D with help from X. P gets shocked because of it. D still liable because they should know people do this. D cannot sue X, because X’s fault is wrapped up in P’s contributory negligence. Good-Wear Treaders Ltd. v. D & B Holdings (1979 NSCA): P sells D a retreaded tire warning it could not be used on gravel trucks. D does it anyway. Accident. P 20% liable because it should have been anticipated as probable. F) Does this case deal with a second accident which stems from the first? RULE: The second accident generally flows from the first Test Case (example) Wieland v. Cyril Lord Carpets [1969 QB]: P in accident, fit with collar, ergo couldn’t have bifocals, so fell when descending stairs with help. Court: “This is easily linked to the first accident.” Lucas v. Juneau (Alaska 1955): D negligent in injuring P, then when transporting P, ambulance driver has epileptic fit. This counts as negligent transport of P. Patten v. Silberschein [1936 BCSC]: D liable for being robbed after being rendered unconscious in accident thanks to D. RULE: If the plaintiff’s injury was caused by negligent conduct, the plaintiff is his own thin skull victim and you’re off scott free. Test Case (example) McKew v. Holland et al [1969 HL]: P’s leg hurt in accident. Leg gives way and he falls down stairs, jumps to fix landing, gets a way worse injury. HL: “this is foreseeable for P, not for D. This is novus actus intervenes; he should have been more careful.” Priestly v. Gilbert [1972] (ONCA): Ditto, except leg broken when P drunk and dancing. What a dumbass. Duce v. Rourke (1951) (ABSC): D not liable for tools stolen from P’s car when car left on hwy after accident. G) Was there a product warning? RULE: You don’t have to warn against the obvious, but you have to give fair warning about each specific danger of your product to those with less knowledge than you Test Cases (example) DeShane v. Deere & Co (1993 ONCA): P falls into unguarded harvester machine. No duty to warn because it’s so obvious what the ordinary danger was. Rozenhard v. Skier’s Sport Shop (2003 AB:P): Obvious that falling is a danger of rollerblades. RULE: If you discover a defect in your product after sale/distribution, you have a continuing duty to warn. Test Case Rivtow Marine v. Wash. Iron Works (1973 SCC): D fails to warn P about defective crane after they found out about the defect. D owes P a big fucking apology and a bigger fucking cheque. RULE: When dealing with complex products (medical prescriptions etc), you must give adequate warning to the “learned intermediary” who can best explain it to the patient Test Case Hollis v. Dow Corning Corp [1995 SCC]: P gets breast implants 1983, which rupture 1985. D knew about the risk in 1979, but Dr. got “little” warning. Dr. needs enough warning to educate patients properly, otherwise doctors do not count as an intervening cause. Buchan v. Ortho Pharm. Ltd. (Y?) ONCA: learned intermediary rule does not apply to oral contraceptives. Step 7) Defences: D had better have a good excuse Contributory negligence: 3 ways: P can… 1) Contribute to the accident; 2) Expose self to risk, 3) Fail to take reasonable precautions to minimize injuries. Issues in how you apportion blame: degree of blameworthiness, between P and multiple Ds, or on an individual P-to-D basis etc? Case: Recognized by Negligence Acts Butterfield v. Forrester (1809 KB): P tearing ass down a road on a horse, doesn’t see D’s blocked it. Courts: you shouldn’t be able to throw yourself on the obstacle of another and then sue the bastard Last Clear Chance Rule (“dandelion of causation: keeps popping up though we try to choke it out”) (now gone)
Virtually gone these days thanks to statutes, cases. Test Case: Lagasse et al v. Rural Municipality of Ritchot et al (1973) MBQB: P’s dead husband using tractor for plowing snow on lake at D’s request; tractor falls through ice. Not volenti b/c deceased did not expressly consent. Hambley v. Shepley ONCA 1967: P a cop, instructed on radio to block D with his cruiser. Collision, P seriously hurt. Volenti doesn’t apply here because P had a duty to do this. Volenti requires “genuine inference that P consented not merely to the risk of injury, but to the lack of reasonable care which may produce that risk.” Kelliher (Village) v. Smith [1931 SCC]: generally requires 1) that P knew about and appreciated nature and character of the risk, and 2) voluntarily incurred it. Murphy v. Steeplechase Amusement Co (NY1929): P injured in fucked up amusement park ride. Courts: “He took a chance, so fuck him.” Hagerman v. Niagara Falls (1980) ONSC: P spectator hit in eye with puck at hockey game. P sat there. Volenti. BUT
Payne v. Maple Leaf Gardens: P sitting in front; P hit by stick during a fight. Courts let P collect: “Who could possibly foresee ANY violence or fights at a hockey game?!” Step 8) Liability: Who’s going to pay for all this? Apportioned equally if no other way to decide on a percentage Joint Liability: Each D is 100% liable for the full amount, but P can only get up to 100%. No need for concurrent actions – you can go after others for the remainder.
P can collect 100%, but each D is only liable for his portion Joint and Several Liability Makes sure P gets something. P may collect 100% from A, who is only 20% responsible, and A has to sue B 80%. Everyone else does have to be named in the action, but this encourages frivolous litigation by giving incentives to include as many D with deep pockets as possible.
You fuck with land/resources etc in an unnatural way, you deal with the consequences Rylands and Fletcher (1868 HL): Facts: Fletcher’s dead mines are underneath a reservoir constructed by Rylands; engineers negligent (but courts ignore this) and the mines are flooded. Conclusion: Rylands liable. Ratios and Analysis: Blackburn J. says Rylands must bear some blame because he knew water was dangerous thus, he put water there anyway and thereby assumed prima facie liability for the “natural consequences” of water’s escape unless it was an Act of God. Lord Cairns distinguishes: “natural” uses in the “ordinary course of enjoyment” of land? Have at ‘er! Non-natural? You assume all risks related thereto. You fuck with the non-natural at your own risk. Lord Cranworth: Concurs with both: if you accumulate something that will cause damage on escape, you’re liable. Bound sic uti suo ut non laedat alienum: do no harm to your neighbor; but not about personal injury
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