Negligence step 1 Has There Been Damage?
Public nuisance can come close to negligence
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- Vicarious Liability: Test is 1) employer-employee relationship, 2) tort must have been in conduct of employment 3) Salmond Test
- Supertorts Tobacco lecture
- Commercial exploitation
- Economic Loss: Defective Products
- Negligent Misrepresentation
- Negligent performance of services
- Public Liability
Public nuisance can come close to negligence Ware v. Garston Haulage Co [1944 KBCA]: P killed when he collided at night with unlighted truck stopped on highway. D liable because it obstructs lawful use of the highway and is likely to cause an accident. Maitland v. Raisbeck and Heitt [1944 KBCA]: Ditto, but only if obstruction is unreasonable; must look at facts. Ryan v. Victoria [1999 SCR]: public nuisance interferes with public’s right for health, safety, convenience etc. Vicarious Liability: Test is 1) employer-employee relationship, 2) tort must have been in conduct of employment 3) Salmond Test: i) Employee acts authorized by employer; ii) acts are improper modes of authorized acts Hern v. Nichols (1700s UK): merchant relies on employee. If someone has to lose, it might as well be the party that trusted. 671122 Ontario Ltd. vs. Sagaz Industries Canada Inc [2001 SCR] P suffered huge losses when D induced Canadian Tire to choose them to supply car seat covers. Inducement was provided by a contracted rep (AIM) for D, but D is not vicariously liable because this is not employment. Two policy considerations: 1) employers create certain risks and should pay for them; 2) must deter torts But must consider whether employees provide equipment, labor, have responsibilities or chances for profit, etc. Ultimately, AIM was not an employee and in any event, they bribed Canadian Tire on their own without D’s direction
1) Should employer really be liable? 2) Is the tort related to a risk employer created, and 3) Look at all factors (opportunity given to employee; victim vulnerability; extent tort was related to function; profits, etc.) Here, intimately taking care of kids creates obvious material risk; harm obviously a result of Curry’s employment
(McL +2 in Diss: D hired to be a trustworthy role model; also, look at policy for vicarious liability.) KLB v. BC [2003 SCR] and MB v. BC [2003 SCR]: D not vicariously liable for kids abused in foster homes; EDG v. Hammer [2003 SCR]: school district not liable for abuse by janitor. Government / School boards do not supervise or manage homes or individual employees; not a breach of fiduciary duty because that entails acting loyally and in the interests of kids only. Supertorts Tobacco lecture BC v. Imperial Tobacco: D marketed to children, as “lights”, while knowing it was harmful. BC trend: “if you lose, legislate that you won” like with HEU cases, prosecutors, teachers etc. BC legislated itself special limitation periods; retroactivity; allowed standard of causation to apply to every patient generally based on trends. Privacy: actionable without damage. “Right to be left alone” – includes intrusions into diaries, personal info, surveillance, etc; exception for public safety Motherwell v. Motherwell: D kept calling P 50 times a day and says it’s lawful activity. Invasion of privacy claim established via nuisance: this is active interference with P’s enjoyment of normal necessities of life. Silber v. BCTV Broadcasting System Ltd: Strike at P company, D filming, P asks them to leave, and later sees them filming on his property; fight breaks out and D broadcasts it. P not entitled to protection from embarrassment because he did it in public where anyone could see it, plus media have public interest role. P gets small $ for trespass. Commercial exploitation: “unauthorized use of another person’s name/likeness as a symbol of that person’s identity. Unauthorized Use = including portrait, anything resembling P. Action ends with P death. Joseph v. Daniels: P sues D because D misused P pictures for publicity photos; P didn’t sign release but got $50; P tried to contact D to obtain release after photo got lots of attention; negative implied rights re photo use, but P not identified in photo (not a portrait etc) = entitled to $550 (going rate for “extra usage”) Davis v. MacArthur: wife moves out and hires P.I. to spy on husband. Husband pissed because he’s being followed. Privacy actionable w/o damage, but P.I. acting as employee, and not maliciously. Privacy Act: Tort actionable without damage; look at reasonable interests and circumstances; can find trespass with eavesdropping etc. Lee v. Jacobson: D liable for drilling hole in wall. Milton (?): P vacationing in Hawaii, has topless photos taken on beach, leaves photos in jacket she borrows there. Friend shows them around, courts say it’s tough for her. P was careless and had no concern about some punk developing them. Hollingsworth (?): cameraman participates in educational video about hair transplants; BCTV uses the footage w/o realizing there’s a confidentiality agreement. “Willful” is the issue. Constitutional Torts: Constitution can be used to back up liability: Jane Doe v. Board of Police Commissioners: P not notified by D about serial rapist because of D’s stereotypes about women. Causation of harm to P was based in D’s violation of P’s S. 15 rights. Economic Loss: Defective Products Winnipeg Condo Corp v. Bird Construction (SCC 1995): D build a crappy, dangerous condo. Danger is key, and costs should be for repairing/rectifying danger. Policy reasons = we should throw the book at D. We can foresee that anyone who owns/lives in your building subsequently is going to get hurt (this is not too indeterminate; nor is cost of repairing; and it only lasts for the life of the building). Need to encourage socially responsible construction. Caveat emptor was a product of classically liberal England. Negligent Misrepresentation Queen v. Cognos Inc [1993 SCC]: P suing D over negligent misrepresentations made during job interview. Hedley inspires these requirements Must be duty of care (foreseeability of damage, proximity of rel’p, reasonableness of duty) Representation must be “untrue, inaccurate, or misleading” Representor must have acted negligently Representee must have relied to his detriment Reliance must have been detrimental (causing damage) (Also, missing info can act like bad info) Hercules Management Ltd v. Ernst & Young [1997 SCC]: P shareholders who had relied on D’s audits to make investment decisions. P claimed shoddy audits led them to invest negligently. SCC uses Anns, says that reliance must be reasonable, must use info for its intended purpose (audits just for general management), tells them to fuck off. D must know identity of P (or class of P), and losses must stem from the statement. Test for reasonableness D had direct/indirect financial interest? D was a professional or had extraordinary skill/knowledge etc Advice given via business Info given deliberately (outside social occasion Info given in response to a specific inquiry Too many risks of indeterminate liability to hold D liable. (see also) Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd.: P phoned D asking about client’s credit. D about to close major contracts w/ client and lied but waived responsibility in giving info; P relied, client went bankrupt, P sued. Relationship between the parties was “sufficiently proximate” to create a duty of care – “there was a special relationship,” plus D knew P would rely on the information, BUT they got away with it thanks to the disclaimer. 3 Options: you could answer, answer with a caveat, or shut up. Either of the last two are enough to prevent liability. (See Derry v. Peek; Heilbut Symons v. Buckleton) Negligent performance of services BDC Ltd v. Hofstrand Farms [1986 SCC]: P a courier delivering a grant for D to be delivered before close of business 31 Dec 1976. D loses it for failure to register, sues P. SCC: P didn’t know, and “anyone who might be affected by a failure to register” is not a limited class; no reasonable contemplation of econ loss. BUT Whittingham v. Crease & Co (1977 BCSC): lawyer fucks up will, P gets fucked. P fucks lawyer in court because while P didn’t “rely” per se (no subsequent act) it’s obvious that negligent performance of legal services will fuck P. Relational econ loss: Bow Valley Husky v. St. John Shipbuilding [SCC 1997]: P got D to build an oil rig. Negligent wiring caused electrical fire, fucking over rig for months. D wants (and gets) compensation for this, but third parties whose contracts stipulatd that they must pay even with did not. Relational econ loss only recoverable in certain circumstances, of which open categories include Claimant has proprietary interest in the property “general average cases” (?) Joint venture between claimant and property owner. Public Liability: standard of care may be different; may be statutory exemptions. Don’t forget about misfeasance, vicarious liability. Rule: Public authorities cannot be held liable for policy decisions for nonfeasance. Public authorities MAY, however, be held liable for misfeasance once they assume a duty (Kamloops principle) Case: Just v. BC [1989 SCC]: boulder falls on P’s car, killing daughter, because of negligent highway maintenance. Court: governments are allowed to make policy choices, but once they do, they’re liable for making sure they’re done properly. (Distinction between policy and operational decisions) (Swanson and Peever v. Canada (1991 Fed CA): feds knew one pilot always flew negligently, so they’re liable when the pilot crashes the plane. Operational decision.) Swinamer v. Nova Scotia (?? SCC): Tree falls on to P’s truck. 200 trees – not this one – marked for removal. Court: “decision on which trees to prioritize for removal is a policy decision” Directory: wordpress -> wp-content -> uploads -> 2011 uploads -> Professor rona s beattie and dr david bamaung glasgow caledonian university email for corresponding author uploads -> Best Offensive Players: qb #19 keenan reynolds, N, ’16. Lg #57 E. K. Binns, N, ’16 uploads -> Smart Supervision Research Partner Orientation Course fy13 and fy14 Grantees September 29- october 1, 2015/San Antonio, tx uploads -> Autonomous Control for a Reliable Internet of Services (across) 2011 -> Law 205: criminal law full Year can (2005-2006) Jennifer Lau 2011 -> Mens Rea Attack 2011 -> Foresight of certainty when dealing with consequences 2011 -> P. O. Box 5760 Richmond, va 23220 2011 -> T. J. Moon scored the first touchdown of the night for Stephenson on a 17-yard run. 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