- •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
D. Human reproduction
The recent expansion of the tort of negligence into the field of human reproduction was heralded by the case of Duval v. Seguin. [Note 28: [1972] 2 O.R. 686 (H.C.J.), aff'd (1973), 1 O.R. (2d) 482 (C.A.) [Duval].] The plaintiff in that case sued in respect of prenatal injuries suffered when her mother was involved in a car accident caused by the negligence of the defendant. The Court held that the defendant owed a duty of care to the fetus which was actionable by the child as soon as she was born alive. The attention that this case brought to the issue of liability to the unborn, the expansionary trends of negligence law, and the lack of any intra-family immunity from tort liability have sparked both interest and litigation on a variety of issues relating to human reproduction. Some of the issues present profound policy dilemmas and have tested the limits of negligence liability. Four kinds of cases are canvassed below: cases involving prenatal injuries, wrongful birth cases, wrongful life cases, and wrongful pregnancy cases.
1) Prenatal Injuries
A child who is born alive may sue in respect of prenatal injuries caused by the defendant's negligence. This is the cause of action that was recognized in Duval. [Note 29: It is also confirmed by legislation in Ontario. See Ontario Family Law Act, R.S.O. 1990, c. F.3, s. 66: "No person is disentitled from recovering damages in respect of injuries for the reason only that the injuries were incurred before his or her birth."] No tort is committed while the child is a fetus. In Canadian law a fetus is not a human person and, therefore, has no legal rights. Consequently, if a child is stillborn because of the defendant's negligence, the mother may sue for her losses, but there is no right of action in the fetus that might survive to the benefit of his estate. Once the child is born alive, however, he is a human person and may sue in respect of physical or mental disabilities that were caused by the defendant's prenatal negligence. Liability may be imposed, for example, on the manufacturers of drugs who fail to do sufficient testing of new products in respect of dangers to the fetus or fail to warn doctors that a medication should not be prescribed for pregnant women. A physician may also damage the fetus by prescribing medications that are not recommended for pregnant women, by injuring the fetus in the course of an unsuccessful abortion, [Note 30: Cherry (Guardian ad litem of) v. Borsman (1992), 94 D.L.R. (4th) 487 (B.C.C.A.).] or by failing to take appropriate care in the course of a Caesarean section or a difficult labour.
A duty of care is not, however, owed by a mother to her unborn child. The issue arose in Dobson (Litigation Guardian of) v. Dobson. [Note 31: [1999] 2 S.C.R. 753 [Dobson].] The plaintiff child sued his mother for prenatal injuries caused allegedly by her negligent driving. A majority of the Supreme Court held that she owed no duty of care either to her fetus or to her subsequently born child. This maternal immunity in respect of prenatal injuries was justified on policy grounds. The recognition of a duty of care in Dobson could not, in the majority's view, be constrained or tailored to the operation of motor vehicles. It would, therefore, lead to the judicial scrutiny and assessment of all maternal conduct that carried a risk of injury to the unborn child including the mother's lifestyle choices such as her use of alcohol, tobacco, drugs and solvents, her recreational activities, her sexual practices, and her dietary regime. This in turn could lead to unacceptable restrictions on the bodily integrity, liberty, privacy, and autonomy of pregnant women. Moreover, the articulation and application of an appropriate standard of care in these circumstances is fraught with difficulty. The minority favoured the recognition of a duty of care in cases like Dobson where the duty at issue (to drive safely) is owned not only to the unborn child but also to third parties. In those circumstances the recognition of a duty of care to the unborn child does not interfere with the mother's freedom of action.