- •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
2) Wrongful Birth
Wrongful birth refers to the claim brought by the parents of a congenitally disabled child against a health-care professional on the ground that her negligent advice or treatment prevented them from avoiding conception or of terminating the pregnancy. Some cases involve pre- conception negligence in the course of genetic testing or counselling. In H.(R.) v. Hunter, [Note 32: (1996), 32 C.C.L.T. (2d) 44 (Ont. Gen. Div.).] for example, the defendant physician failed to inform the plaintiff that there was a genetic risk that her male children might develop Duchenne muscular dystrophy. Both of her sons developed the disease. Other cases involve post-conception negligence such as the failure to warn mothers of the risk of fetal abnormality from post-conception illnesses, the failure to test for fetal abnormalities, or the failure to interpret test results accurately. A good illustration of post-conception negligence is found in Arndt v. Smith, [Note 33: Above note 27.] discussed above, where the defendant physician failed to tell the plaintiff of the risk that chickenpox contracted after conception posed to her fetus. Arndt also addressed the importance of causation in these cases. The plaintiff must establish that, if the defendant had not been negligent, a reasonable person in her particular circumstances (the modified objective test) would have prevented the pregnancy or terminated it as the case may be. The plaintiff's action in Arndt failed on that ground. [Note 34: See Mickle v. Salvation Army Grace Hospital (1998), 166 D.L.R. (4th) 743 (Ont. Gen. Div.) for a discussion of the difficulties of determining cause-in-fact in wrongful birth cases.]
The primary head of damage in wrongful birth cases is the increased costs and special expenses of caring for a handicapped child, [Note 35: 1 It is not yet clear if a claim for ordinary child-raising costs can also be made; see section D(4), "Wrongful Pregnancy," in this chapter.] but the award may also include the loss of income suffered by the parental caregiver and general damages to both parents for emotional suffering. The claim of the father is wholly derivative, standing or falling with that of the mother.
3) Wrongful Life
The wrongful life action has not been recognized by any Canadian court. [Note 36: See Jones (Guardian ad litem of) v. Rostvig (1999), 44 C.C.L.T. (2d) 313 (B.C.S.C.); and Lacroix (Litigation Guardian of) v. Dominique, [1999] 12 W.W.R. 38 (Man. Q.B.).] It is the companion action of the child to the parents'wrongful birth claim. The plaintiff child's contention is that, had the defendant given his mother timely warning of the risk of congenital abnormality, she would have chosen either not to have had a child or, if the negligence was after conception, to have terminated her pregnancy. In either case, the plaintiff would not have been born and he would have been spared a life burdened by physical or mental incapacity, pain, and suffering. As in the case of wrongful birth, there is no suggestion that the defendant caused the plaintiff's disability. The plaintiff never had a chance of being born free of congenital disability. The plaintiff's claim is that he should never have been born at all. Claimants in wrongful life actions in the United States commonly seek recovery for future care costs and non-pecuniary damages for pain and suffering and for an impaired childhood flowing from the chronic sorrow and psychological grief suffered by some parents upon the birth of a handicapped child. [Note 37: See Procanik v. Cillo, 478 A.2d 755 (N.J. 1984).]
It is unlikely that Canadian courts will entertain wrongful life claims in the near future. There are many technical and policy objections to them and this has led to a rejection of these claims in all common law jurisdictions other than a few American states. The primary technical problem relates to the assessment of damages. Damages in negligence are designed to restore the plaintiff to the position that he would have been in if the negligence had not taken place. In wrongful life claims this gives rise to a profound and unanswerable philosophical and theological conundrum. If the defendant had exercised care, the plaintiff would not be in existence. A comparison between the state of non-existence and the plaintiff's current state is clearly not justiciable on conventional principles.
Policy factors also dictate great caution. There is a risk that the recognition of a wrongful life claim will devalue the sanctity of life in general, and the plaintiff's life in particular. A finding of liability may be interpreted as a finding that the plaintiff's life is a legally recognized loss and that he would be better off dead. Recognition of the action would also produce some uncertainty. It is not clear, for example, if the plaintiff's claim depends upon the manifestation of catastrophic disabilities or whether more minor disabilities may also give rise to the action.
Those American judges who favour the wrongful life action emphasize competing policy factors, including the need for deterrence against negligent physicians, the plaintiff's great need for adequate future care compensation, [Note 38: Those American courts that favour the wrongful life action often restrict damages to extraordinary expenses necessitated by the birth defect.] and the desirability of allocating the plaintiff's losses to the best loss distributor. These factors are, perhaps, more compelling in jurisdictions without public health care and with less well-developed social assistance programs.