- •Introduction
- •1) Criminal Law and Tort Law Contrasted
- •B. The origins of canadian tort law
- •1) The Nature of the Defendant's Conduct
- •2) The Nature of the Plaintiff's Loss
- •D. The objectives of tort law
- •2) The Instrumentalist View
- •I) Specific Deterrence
- •II) General Deterrence
- •III) Market Deterrence
- •E. Personal injury, tort law, and other compensatory vehicles
- •1) Governmental Initiatives
- •2) Private Sector First-Party Insurance
- •F. The organization of tort law
- •A. Introduction
- •1) Application of the Standard of Care
- •I) Judicial Policy
- •2) Special Standards of Care
- •3) Proof of Negligence: Direct and Circumstantial Evidence
- •1) Cause-in-Fact
- •4) Market Share Liability
- •5) Loss of a Chance
- •6) Multiple Tortfeasors Causing Indivisible Damage
- •D. Damage
- •E. The duty of care
- •1) The Foreseeable Plaintiff (The First Branch of the Anns Test)
- •2) Policy Considerations (The Second Branch of the Anns Test)
- •The Supreme Court decision in Galaske V. O'Donnell [Note 123:
- •In its recent decision in Ryan V. Victoria (City) [Note 126:
- •F. Remoteness of damage
- •1) The Foreseeability Rule
- •G. Defences
- •1) Contributory Negligence
- •2) Voluntary Assumption of Risk (Volenti Non Fit Injuria)
- •3) Illegality (Ex Turpi Causa Non Oritur Actio)
- •4) Inevitable Accident
- •H. Remedies
- •1) Personal Injury
- •I) The Impact of the Trilogy
- •2) Death
- •3) Property Damage
- •A. Introduction
- •B. Products liability
- •1) Manufacturing Defects
- •2) The Duty to Warn
- •3) Reasonable Care in Design
- •1) The Duty of Care
- •2) The Standard of Care
- •D. Human reproduction
- •1) Prenatal Injuries
- •2) Wrongful Birth
- •3) Wrongful Life
- •4) Wrongful Pregnancy
- •E. Occupiers' liability
- •1) The Classical Common Law of Occupiers' Liability
- •2) The Modern Common Law of Occupiers' Liability
- •3) Legislative Reform
- •F. Breach of statutory duty
- •G. Pure economic loss
- •I) Foreseeable Reliance/Reasonable Reliance : The Prima Facie Duty of Care
- •II) Policy Concerns: The Issue of Indeterminacy
- •2) Negligent Performance of a Service
- •3) Relational Economic Loss
- •I) Contractual Relational Economic Loss
- •4) Product Quality Claims
- •H. Governmental liability
- •2) Negligence
- •In Rondel the House of Lords provided a number of reasons for the immunity. They included:
- •Intentional torts
- •A. Introduction
- •B. The meaning of intention
- •C. Intentional interference with the person
- •1) Battery
- •3) False Imprisonment
- •5) False Imprisonment and Malicious Prosecution
- •6) Malicious Procurement and Execution of a Search Warrant
- •7) Abuse of Process
- •9) Privacy
- •10) Discrimination
- •12) Harassment
- •13) Defences to the Intentional Interference with the Person
- •III) Defence of a Third Person
- •V) Discipline
- •VI) Necessity
- •VII) Legal Authority
- •VIII) Illegality: Ex Turpi Causa Non Oritur Actio
- •II) Contributory Negligence
- •1) Elements of Liability
- •2) Defences to the Intentional Interference with Land
- •3) Remedies
- •4) Trespass to Land and Shopping Malls
- •5) Trespass to Airspace
- •E. Intentional interference with chattels
- •1) Trespass to Chattels
- •3) Conversion
- •4) The Action on the Case to Protect the Owner's Reversionary Interest
- •5) An Illustrative Case: Penfold's Wines Pty. Ltd. V. Elliott
- •6) The Recovery of Chattels
- •F. Intentional interference with economic interests
- •1) Deceptive Practices
- •II) Conspiracy to Injure by Unlawful Means
- •I) Direct Inducement to Breach a Contract
- •II) Indirect Inducement to Breach a Contract
- •Intentional Interference with the Person
- •Barry j. Reiter Melanie a. Shishler
- •1) Elements of Liability
- •2) Defences
- •Barry j. Reiter Melanie a. Shishler
- •1) The Elements of Liability
- •3) Dogs
- •4) The Scienter Action and Negligence
- •Barry j. Reiter Melanie a. Shishler
- •1) Elements of Liability
- •2) Defences
- •Barry j. Reiter Melanie a. Shishler
- •2) Principal and Agent
- •3) Statutory Vicarious Liability
- •4) Independent Contractors
- •In Lewis (Guardian ad litem of) V. British Columbia, [Note 50:
- •5) Liability of the Employee or the Agent
- •Barry j. Reiter Melanie a. Shishler
- •Chap.6 Contents
- •1) Physical Damage to Land
- •2) Interference with Enjoyment and Comfort of Land
- •7) Defences
- •8) Remedies
- •1) The Definition of a Public Nuisance
- •A. Introduction
- •2) Reference to the Plaintiff
- •3) Publication
- •E. Defences
- •2) Privilege
- •3) Fair Comment on a Matter of Public Interest
- •F. Remedies
- •H. The next challenge: political speech
- •A. Introduction
- •1) Contract Law and Tort Law
- •2) Fiduciary Law and Tort Law
- •3) Restitution and Tort Law
- •C. Public law
- •1) The Charter of Rights and Freedoms and Tort Law
- •A. The centrality of the tort of negligence
- •B. The dynamism of the tort of negligence
- •C. Generalization and integration
- •D. Reform and modernization
- •E. The triumph of compensation and loss distribution policies
- •Ison, t.G., The Forensic Lottery: a Critique on Tort Liability as a System of Personal Injury Compensation (London: Staples Press, 1967)
- •Intentional conduct of a public official in abuse of her power, or knowingly beyond the scope of her jurisdiction, causing damage to the plaintiff.
- •Preface
- •Philip h. Osborne
5) Loss of a Chance
The law relating to claims for the loss of a chance of avoiding damage is not in a satisfactory state. The issue arises, most often, in medical malpractice cases. Imagine, for example, that a physician negligently treats a head injury suffered by her patient. The patient suffers from permanent brain damage. Proper medical treatment would have given the patient a 40 percent chance of a full recovery. The patient has, therefore, lost a significant chance of a full recovery. Traditional causation principles, however, dictate that the patient's negligence action against the physician will fail. The conventional approach is to focus, not on the loss of a chance, but on the ultimate loss (brain damage). On the balance of probabilities (at least 51 percent), the physician did not cause that damage. If the patient's chance of a full recovery was 60 percent, full damages are awarded because, on the balance of probabilities, the physician's negligence did cause the patient's brain damage. This rigid, all-or-nothing approach may be avoided by acceptance of loss of a chance as a discrete and independent head of damage in itself. Once loss of a chance is defined as a distinct injury, the causation problem disappears (there is no doubt that the physician did cause the loss of a chance of full recovery), and damages may be assessed on a probabilistic basis. [Note 71: Once all the elements necessary to establish a cause of action in negligence (including causation of damage) are established, the court in assessing damages takes into account future uncertainties and awards damages on a probabilistic basis.] Such an approach is most attractive where the loss of a chance is under 51 percent, but consistency may dictate that it applies to discount a full award where the chance is above 50 percent. As yet there is no authoritative Canadian common law decision on recovery for loss of a chance. The House of Lords, however, has shown no enthusiasm for it, [Note 72: Hotson v. East Berks Area Health Authority, [1987] A.C. 750 (H.L.).] and the Supreme Court in a civil law case from Quebec has rejected it. [Note 73: Laferrière v. Lawson, [1991] 1 S.C.R. 541.]
6) Multiple Tortfeasors Causing Indivisible Damage
At common law, multiple tortfeasors causing the same (indivisible) damage were either joint tortfeasors or several concurrent tortfeasors. The four categories of joint tortfeasors were described earlier. Defendants who commit a series of discrete, independent torts, each of which is a cause-in-fact of the plaintiff's damage, are several concurrent tortfeasors. This distinction is still one of some importance. For example, to secure the liability of joint tortfeasors, it is necessary to prove only a single tortious act by one of the joint tortfeasors. On the other hand, liability must be established individually against each of several concurrent tortfeasors. The importance of the distinction has, however, been minimized by legislative reform that now controls the responsibility of multiple tortfeasors. The legislation is not uniform [Note 74: In some provinces and territories the legislation also deals with apportionment for contributory negligence: see British Columbia Negligence Act, R.S.B.C. 1996, c. 333; Manitoba Tortfeasors and Contributory Negligence Act, R.S.M. 1987, c. T90; Newfoundland Contributory Negligence Act, R.S.N. 1990, c. C-33; Northwest Territories Contributory Negligence Act, R.S.N.W.T. 1988, c. C-18; Ontario Negligence Act, R.S.O. 1990, c. N.1; Prince Edward Island Contributory Negligence Act, R.S.P.E.I. 1988, c. C-21; Saskatchewan Contributory Negligence Act, R.S.S. 1978, c. C-31; Yukon Territory Contributory Negligence Act, R.S.Y. 1986, c. 32. Other jurisdictions have separate Acts: see Alberta Tort-Feasors Act, R.S.A. 1980, c. T-6; New Brunswick Tortfeasors Act, R.S.N.B. 1973, c. T-8; and Nova Scotia Tortfeasors Act, R.S.N.S. 1989, c. 471.] and there continue to be many technical issues that are not resolved fully or uniformly. Nevertheless, the general approach to multiple tortfeasors is not significantly different from that of the Manitoba Tortfeasors and Contributory Negligence Act. [Note 75: Above note 74.]
Under that Act, all tortfeasors may be sued by the plaintiff in the same action and the defendant may third party any potential tortfeasor overlooked by the plaintiff. The liability of multiple tortfeasors (both joint tortfeasors and several concurrent tortfeasors) is joint and several, which means that all of the defendant tortfeasors are liable for the full amount of the damages awarded and each defendant is individually responsible for that amount. The plaintiff may, therefore, opt to execute fully her judgment against any one of the defendants. Joint and several liability is designed to maximize the plaintiff's chance of having the judgment paid. Full satisfaction (payment) by one defendant of a settlement or judgment discharges the liability of all other defendants to the plaintiff. Double recovery is not permitted. If satisfaction has not been made by the judgment debtors, further actions against tortfeasors not initially sued may be brought. Any subsequent judgment may not, however, exceed the quantum of the first. This is designed to prevent court shopping to secure a more generous award from a subsequent judge. Furthermore, unless there are reasonable grounds for bringing the later action, costs may be awarded against the plaintiff. This acts as an incentive for the plaintiff to join all potential tortfeasors in the initial proceedings.
As noted earlier, joint and several liability permits the plaintiff to execute a judgment against any one of multiple defendants. The pos- sible unfairness of a plaintiff executing a judgment fully against only one of several defendants has been mitigated by the rules of contribution among defendants. Courts are now directed to apportion the responsibility for the plaintiff's loss among the defendants in accordance with the degree to which each is at fault. This apportionment does not affect the plaintiff, who may continue to seek 100 percent of the judgment against any of the defendants, but it does provide an enforceable framework for the allocation of losses among the defendants themselves. Consequently, when two defendants are held equally responsible for the plaintiff's loss and the plaintiff chooses to execute the judgment against the first defendant, the first defendant may in turn seek contribution from the second defendant for half of the award of damages. Contribution can also be sought from a defendant who was not joined in the action if, had he been sued, he would have been found liable. In exceptional circumstances, the court may require a defendant to indemnify fully the other defendants and thereby allocate the loss ultimately to the dominant wrongdoer.
CHAPTER 2, NEGLIGENCE: BASIC PRINCIPLES