- •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
1) Governmental Initiatives
The first governmental initiative was the introduction early in the twentieth century of workers' compensation schemes that replaced tort law in respect of workplace accidents and industrial disease. This development was prompted by the inadequate coverage and compensation provided by tort law to disabled workers. Workers gave up their tort remedies [Note 42: A tort claim may still be available to an injured worker against a person other than an employer or employee covered by the scheme.] in return for guaranteed no-fault compensation. The provincial schemes, which are administered by a public body and funded by levies paid by employers, provide compensation for lost income, rehabilitation expenses, and other associated losses.
Later in the century, in spite of the compulsory third-party liability insurance of drivers and owners of cars, similar concerns were expressed about the adequacy of tort law to compensate the victims of automobile accidents. The response of the various provincial governments has not been uniform. Some provinces have introduced add-on no-fault schemes that pay moderate no-fault benefits to all the victims of automobile accidents while preserving the right to sue in tort (e.g., British Columbia). Others have modified no-fault plans that restrict injured persons to no-fault benefits unless their injuries or losses exceed a certain threshold of seriousness (e.g., Saskatchewan and Ontario). Only two provinces have completely replaced the tort system with a pure no-fault system paying income replacement benefits, other associated costs or expenses, and compensation for permanent disability (Quebec and Manitoba). Some of these plans are delivered by the private sector. Others are delivered through public corporations. Their unifying characteristic is the desire to expand the number of victims of automobile accidents receiving compensation and to deliver that compensation more efficiently.
There has also been legislative activity in respect of criminal violence. The difficulty that the victims of crime have in securing compensation from the perpetrators of criminal violence is notorious. Often the offender is not known and when he is known and sued, it is unlikely that a tort judgment will be paid. The victims of crime almost always have a tort claim but rarely receive any compensation from it. Consequently, all provinces have introduced criminal injury compensation schemes that provide compensation to the victims of crime on a no-fault basis. They are funded by general tax revenues and normally provide income replacement benefits, reimburse various expenses arising from the injury, and compensate pain and suffering. The tort action remains available to those victims who wish to pursue it.
There are also a number of federal and provincial social welfare programs such as Employment Insurance, the Canada Pension Plan, health-services insurance, and social allowances that assist accident victims. These programs were not initiated primarily to assist the victims of accidents but they often provide important financial support for them.
Most recently, there have been a number of discrete governmental initiatives designed to settle claims of various categories of persons who have suffered loss from alleged wrongdoing. Special arrangements have been made to assist persons who contracted HIV and hepatitis C from the Canadian blood supply, persons wrongfully sterilized in Alberta, and Aboriginal persons who suffered physical and sexual abuse in residential schools. [Note 43: In 1988 the federal government allocated an initial $350 million for community-based healing and support services. A large number of claims remain to be settled.] Although these various initiatives are unrelated, they do seem to be prompted by similar circumstances. First, they all relate to tragic events or episodes that damaged large numbers of utterly innocent persons. Second, the mass claimants have potential tort actions but these actions are so difficult, uncertain, and expensive to litigate that a global settlement is an attractive option. Third, these persons suffered harm as a consequence of governmental activities or activities in which there was strong governmental involvement, and either federal or provincial governments face potential tort liabilities. Fourth, there is very strong public sympathy and support for these people and a political consensus that they should be directly compensated by public money without the need to litigate the matter.
The foregoing governmental initiatives, collectively, are respon-sible for the distribution of a huge amount of money to vast numbers of injured persons. They have intruded into the traditional realm of tort law and have eroded its significance, most dramatically in respect of workplace accidents and automobile accidents, the two activities that generate most personal injury. At one time it was expected by some that this growing tide of governmental intervention would ultimately lead to the replacement of tort law and the other compensatory schemes with a universal governmental no-fault accident compensation scheme. [Note 44: New Zealand is the only common law jurisdiction to implement a universal no- fault accident compensation scheme.] However, the fight against government deficit financing, the retrenchment of social spending, and the political swing away from social welfarism makes that unlikely in the foreseeable future.