- •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
4) Inevitable Accident
Reference can be found in Canadian negligence law to the defence of inevitable accident. [Note 169: Rintoul v. X-Ray & Radium Industries Ltd., [1956] S.C.R. 674.] It arises most often in cases of automobile accidents caused by brake or other mechanical failure. These situations present strong circumstantial evidence of the defendant's negligence and the defendant may feel obliged to respond in the strongest manner. This gives rise to an argument that the loss was caused by an inevitable accident, and evidence may be offered by the defendant to show that the motor vehicle was kept in good repair and regularly inspected. It is doubtful, however, if this is a defence in the true sense of the word. The debate is over whether the defendant took reasonable care. If the loss was caused by an accident, inevitable or otherwise, there is no liability. On the issue of reasonable care, the ultimate burden of proof is on the plaintiff. The defence of inevitable accident is, therefore, something of a legal curiosity, neither helpful nor particularly harmful. It merely emphasizes the centrality of fault and indicates that a defendant may try to rebut the plaintiff's case by adducing evidence of his own showing that reasonable care was taken and the accident was unavoidable.
CHAPTER 2, NEGLIGENCE: BASIC PRINCIPLES
H. Remedies
The remedy for plaintiffs who suffer loss as a consequence of the defendant's negligence is an award of damages. Damages may be compensatory, aggravated, or punitive. In negligence actions, the primary focus is on compensatory damages. They are essentially restitutionary in nature, being designed to place the plaintiff in the position she would have been in if the negligent conduct had not taken place. Aggravated and punitive damages play a very modest role in negligence law. Aggravated damages are also compensatory in nature. They are awarded for the humiliation, embarrassment, or distress caused by the nature and gravity of the defendant's wrongdoing. Punitive or exemplary damages are awarded when a defendant's conduct is so outrageous, vicious, malicious, or despicable that it warrants a severe reprimand and punishment. It is in the nature of a civil fine payable to the victim. The conduct of defendants in negligence cases rarely warrants either aggravated or punitive damages. They are most commonly awarded in cases of intentional injury.
The general restitutionary principle of compensatory damages is applicable to personal injury, fatality, and property claims but most judicial energy is expended on personal injury and fatality cases. Not only has tort law always given high priority to personal security, but personal injury and fatality claims present the most technically difficult assessment issues. The patterns of insurance also dictate that courts are primarily concerned with personal injury and fatality claims. Property, both real and personal, is normally insured on a first-party basis. Consequently, when property is damaged, destroyed, or stolen, its owner is more likely to turn to her first-party loss insurer than to commence a tort action. Insurers do have a right of subrogation which allows them to recoup payments they have made to the insured by exercising the insured's tort rights against the wrongdoer who caused the loss, but that right is not always exercised. First-party insurance against death and disability is much less common and it may be inadequate to cover catastrophic losses. Much greater reliance must therefore be placed on the fault/ liability insurance system to secure adequate compensation. Emphasis will accordingly be given to the assessment of compensatory damages for personal injury and for losses arising out of fatal accidents. [Note 170: The authoritative treatise on personal injury and fatality damages is K.D. Cooper- Stephenson, Personal Injury Damages in Canada, 2d ed. (Toronto: Carswell, 1996).]