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Torts - Section D October 30, 2007 Duty of Care; Remoteness

Torts - Section D October 30, 2007 Duty of Care; Remoteness. Professor Bruce Ryder. special relationships (316). relationships of economic benefit relationships of control or supervision creators of dangerous situations reliance relationships statutory affirmative duties.

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Torts - Section D October 30, 2007 Duty of Care; Remoteness

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  1. Torts - Section DOctober 30, 2007Duty of Care; Remoteness Professor Bruce Ryder

  2. special relationships (316) • relationships of economic benefit • relationships of control or supervision • creators of dangerous situations • reliance relationships • statutory affirmative duties Torts, Section D

  3. relationships of economic benefit • e.g., sellers of alcohol and their patrons • common law duty of care: JordanHouse v. Menow 1973 SCC (316); Crocker v. Sundance Resorts 1988 SCC (n.9, 321); Stewart v. Pettie 1995 SCC (n.10, 321) • statutory liability may be imposed pursuant to s.39 of the Liquor LicenceAct (A23, S59); see, e.g., McIntyre v. Grigg 2006 Ont CA (S60) Torts, Section D

  4. relationships of control or supervision • eg, parent/child; teacher/student; prisons/inmates (326-8) • see, eg, Galaske v. O’Donnell 1994 SCC, note 2, 327 (driver and parent both owed duty to child to ensure he was wearing his seatbelt) Torts, Section D

  5. creators of dangerous situations • duty of affirmative action may arise where the D has created a danger and has not taken reasonable steps to reduce the risks or warn others: Oke v. Weide Transport 1963 Man .C.A. (328); Stermer v. Lawson 1977 BCCA (note 3, 330); Hall v. Hebert 1993 SCC (note 4, 330; 435) Torts, Section D

  6. reliance relationships • duty of affirmative action may arise where the D does not follow through on a course of conduct on which others have reasonably relied to their detriment: Zelenko v. Gimbel Bros. 1936 NYSC (330); Horsley v. MacLaren 1972 SCC (note 6, 332; 376) • liability of voluntary rescuers limited by statute: in Ontario, see the Good Samaritan Act (A11) Torts, Section D

  7. statutory affirmative duties • may give rise to common law affirmative duties • see Laskin in Jordan House at 318 (courts should consider statutory obligations in determining whether a common law duty of care is owed); Galaske note 2, 327; Jane Doe 1998 Ont CJ at 509 (common law duty to warn potential victims builds upon statutory duty to prevent crime) Torts, Section D

  8. Childs v. Desormeaux 2006 SCC (S67) • D impaired driver caused accident after attending BYOB party • D liable to persons injured or killed by his impaired driving • can the social hosts also be liable to the victims on the highway? • foreseeability? • proximity? Torts, Section D

  9. remoteness (“legal cause” or “proximate cause”) • issue arises only after it has been established that: • D owed P a duty of care; • D breached the standard of care; and • D’s breach caused the P’s injury • then we ask whether connection between D’s breach and P’s injury is too remote Torts, Section D

  10. Wagon Mound #1 P.C. 1961 (344) • P, owner of wharf damaged in fire, sues D ship operator, alleging D’s employees caused fire by negligently discharging furnace oil into Sydney harbour • PC absolved D of liability in negligence • rejects directness test stated in Polemis case • directness test unpredictable • directness test unfair: does not achieve correspondence between fault and liability Torts, Section D

  11. Wagon Mound #1 P.C. 1961 (344) • PC adopts f. test: “whether the damage is of such a kind as the reasonable [person] should have foreseen” (348) • applying this test to the facts: no liability since the evidence at trial established that it was not foreseeable that furnace oil on water was flammable Torts, Section D

  12. Smith v. Leech Brain 1961 Eng QB (349) • widow sues to recover damages after death of her husband • D’s negligence caused him to suffer burn on his lip that developed into fatal cancer • is his death too remotely related to D’s negligence? WM #1 suggests yes Torts, Section D

  13. Smith v. Leech Brain • death not too remote • thin skulled plaintiff rule not affected by WM #1 • not necessary to foresee the extent of personal injury (350-1) Torts, Section D

  14. Hughes v. Lord Advocate, 1963 HL (354) • P, 8 year old boy, injured when he dropped lamp into hole, causing explosion and severe burns • was injury by explosion foreseeable? • only the general kind of injury needs to be foreseeable, not its extent or the precise circumstances in which it came about Torts, Section D

  15. Wagon Mound #2, 1966 PC (359) • Same incident as in WM#1 • Ps this time are owners of ships damaged in fire • evidence established that it was foreseeable that furnace oil could ignite on water (a “possibility”, 360) • D liable in negligence since damage by fire was foreseeable as a “real risk” Torts, Section D

  16. foreseeability test • remoteness issue is resolved by asking: was the kind of injury suffered by the P a foreseeable consequence of the D’s fault? Torts, Section D

  17. foreseeability of what? • duty, standard of care and remoteness issues all take into account f. of risk in different ways • duty: f. and proximate risk of harm to whom? • standard of care: was the f. risk of harm (P*L) greater than B? • remoteness: f. risk of what kind of injury? Torts, Section D

  18. summary of developments since WM#1 • only the general type of injury needs to be f.; not the precise circumstances in which it occurred nor the extent of the injury: Hughes HL 1963 (354) • thin skulled P rule: the full extent of personal injury is recoverable, even if unf., so long as some physical injury to the P was f.: Smith v. Leech Brain (349); Marconato (352 note 7) Torts, Section D

  19. summary of developments since WM#1 • degree of f. required is low: sufficient if it is a “possibility” or a “real risk”: Wagon Mound #2 PC 1966 (359); Assiniboine Man CA 1971 (358 note 7; 363 note 3) Torts, Section D

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