- •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) Private Sector First-Party Insurance
Currently, there is greater interest in the potential of the private sector insurance industry to provide more complete and affordable first-party insurance instruments covering all kinds of personal disability. The trend towards more private protection is one that is likely to accelerate in the twenty-first century. Life insurance is the most established and common form of first-party insurance. Disability insurance is less common, particularly on an individual basis, but there has been considerable growth in group plans for employees, school children, participants in organized sport, holders of credit cards, and members of professional, alumni, and other organizations. In 1992 the members of the Canadian Life and Health Insurance Association reported that they covered over ten million Canadians for short- and long-term benefits and paid more than $2.7 billion in claims. [Note 45: Ontario Law Reform Commission, Study Paper on the Legal Aspects of Long-Term Disability Insurance by M.G. Baer (Toronto: Ontario Law Reform Commission, 1996) at 1, n. 1.] One respected academic [Note 46: P.S. Atiyah, "Personal Injuries in the Twenty-First Century: Thinking the Unthinkable" in P. Birks, ed., Wrongs and Remedies in the Twenty-First Century (Oxford: Clarendon Press, 1996) at 1.] has even suggested that both tort and most governmental compensation plans for accidental injury and death might be abolished, leaving citizens to make their own financial security arrangements against physical disability with private insurers on a first-party basis. That is unlikely to occur in Canada in the foreseeable future but it indicates renewed interest in the private sector as an engine for greater disability protection.
The result of these various developments is that the current Canadian system of compensation for accidental personal injury and death is an amalgam of tort liability, no-fault schemes, and first-party insurance. In terms of the number of persons compensated and the amount of money provided, the no-fault plans and private insurance dwarf the tort process. This is a perspective that may not be immediately apparent in the conventional study of tort law. Lawyers tend to regard tort law as having central importance in the field of accident compensation. It is in fact a minor player whose importance continues to diminish. This perspective is essential to understanding and evaluating the place, role, and future of tort law in the field of personal injury and fatality compensation
CHAPTER 1, INTRODUCTION
F. The organization of tort law
It was noted earlier that tort law is made up of a somewhat disorganized congregation of individual torts. Not surprisingly, there is no conventional way of describing this area of the law. One may describe tort law in its historical context and trace its development chronologically. One may identify the interests that tort law protects, such as personal safety, privacy, and property interests, and describe the torts that address those interests. One may focus on conduct and arrange torts in groups of intentional torts, negligent torts, and torts of strict liability. The choice is largely arbitrary. This book adopts the third option but it begins with negligence and then deals with the intentional torts before it turns to the torts of strict liability. This approach recognizes the dominance of the tort of negligence in the landscape of Canadian tort law. It is not only of central importance in its own right, [Note 47: "In terms of personal injury and property damage, negligence law accounts for nearly all tort claims" : Klar, above note 3 at 125. ] but it also exerts a powerful influence on all other areas of tortious liability. Consequently, the Canadian law of torts can best be understood by considering the tort of negligence before the other bases of tort liability. Although the torts of nuisance and defamation may be considered torts of strict liability, they are given discrete consideration. Nuisance is, in fact, a confusing mixture of negligence and strict liability concepts, and defamation, the most technical of all the torts, is replete with unique concepts and principles.
We are now ready to embark on a discussion of the essential principles of the Canadian law of torts and the social policies that support it.
CHAPTER 1, INTRODUCTION
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FURTHER READINGS |
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Klar, L.N., Tort Law, 2d ed. (Scarborough, Ont.: Carswell, 1996) at 1-23
Linden, A.M., Canadian Tort Law, 6th ed. (Toronto: Butterworths, 1997) at 1-32
Williams, G.L., & B.A. Hepple, Foundations of the Law of Tort, 2d ed. (London: Butterworths, 1984)
Atiyah, P.S., The Damages Lottery (Oxford: Hart Publishing, 1997)
CHAPTER 2
NEGLIGENCE BASIC PRINCIPLES
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A. Introduction |
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B. The Standard of Care The Reasonably Careful Person |
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Application of the Standard of Care a) Foreseeable Risk b) The Likelihood of Damage c) The Seriousness of the Threatened Harm d) The Cost of Preventive Measures e) The Utility of the Defendant's Conduct f) Emergency Situations g) Custom and Approved Practice h) Post-Accident Precautions i) Judicial Policy j) Economic Analysis k) The Equity of the Case l) Hindsight Bias |
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2) |
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Special Standards of Care a) Mental Disability b) Children c) Physical Disability d) Superior Skill and Knowledge |
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3) |
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Proof of Negligence Direct and Circumstantial Evidence |
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C. Causation |
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Cause-in-Fact 2) Alternative Liability 3) Joint Tortfeasors (Concerted Action) 4) Market Share Liability 5) Loss of a Chance 6) Multiple Tortfeasors Causing Indivisible Damage |
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D. Damage |
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E. The Duty of Care |
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1) The Foreseeable Plaintiff (The First Branch of the Anns Test) 2) Policy Considerations (The Second Branch of the Anns Test) a) Duties of Affirmative Action b) The Duty Owed to Rescuers c) Psychiatric Injury (Nervous Shock) 3) Formulating the Duty of Care |
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F. Remoteness of Damage |
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1) The Foreseeability Rule 2) The Interpretation of Foreseeability a) The Mechanics of the Accident b) The Possibility of Damage c) Linkage d) The Demarcation of Damage e) The Elasticity of Foreseeability 3) Special Remoteness Issues a) The Thin-Skull Rule b) Intervening Acts (Novus Actus Interveniens) c) Suicide |
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G. Defences |
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Contributory Negligence 2) Voluntary Assumption of Risk (Volenti Non Fit Injuria) 3) Illegality (Ex Turpi Causa Non Oritur Actio) 4) Inevitable Accident |
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H. Remedies |
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Personal Injury a) Lump Sum Award b) Special and General Damages c) Guidelines d) Future Care Costs e) Loss of Earning Capacity f) Non-pecuniary Loss g) Collateral Benefits h) Management Fees i) The Impact of the Trilogy |
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2) |
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Death a) Fatal Accidents Legislation b) Survivorship Legislation i) Actions against the Estate ii) Actions by the Estate |
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Property Damage a) Chattels b) Realty |
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Further Readings |
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CHAPTER 2, NEGLIGENCE: BASIC PRINCIPLES