3) Property Damage

The general principle is that the plaintiff is entitled to an award of damages that will restore her to the position she was in before the property was damaged, destroyed, or lost. This principle is applicable both to the loss, destruction, or damage of chattels and to the damage or destruction of realty.

a) Chattels

When a chattel is lost, destroyed, or damaged beyond repair, the normal measure of damages is the value of the chattel. The measure of that value is the market value of the chattel at the time of the tort rather than the replacement cost of a new one. When a chattel is damaged, the measure of damages is the diminution of the value of the chattel calculated by subtracting its post-accident market value from its pre- accident value. The cost of repairs is, however, often an appropriate measure when it is no higher than the reduction in the chattel's value. Repair costs that are higher than the diminution in the value of the chattel and, indeed, replacement costs in excess of market value may be awarded in respect of antique or rare chattels when there is evidence that the money will be spent to repair or replace them.

Damages may also be given for the loss of use of chattels such as an award for loss of profits or temporary replacement costs while a chattel is repaired. The general restitutionary principle, tempered by the duty to act reasonably in mitigation of one's losses, determines the appropriate quantum. Occasionally, small awards are made for non-pecuniary losses such as mental distress and frustration. The killing of a pet or damage to a bride's gown on her wedding day may warrant such an award.

b) Realty

The assessment principles that apply to chattels also apply to realty. The general measure of damages is the diminution in the value of the property. The cost of repair or replacement of damaged or destroyed premises is an appropriate measure where that cost is less than the diminution of value. However, the overriding principle is the restoration of the plaintiff to her pre-accident position and the costs of repair or replacement of premises in excess of its diminution in value may be allowed in special circumstances. A more generous award may, for example, be made in respect of the repair and restoration of a personal residence or to replace premises that are an essential component of successful business. Sometimes, rebuilt or repaired premises have a higher value than the pre-accident structure. In those situations a deduction may be made to prevent the plaintiff from being in a better position than before the defendant's negligence. Consequential losses such as loss of profits and the cost of securing temporary premises during the repair period are recoverable. Non-pecuniary losses may also be awarded when damage to realty has caused special frustration or emotional distress.

CHAPTER 2, NEGLIGENCE: BASIC PRINCIPLES

FURTHER READINGS

Standard of Care

Green, E., "The Reasonable Man: Legal Fiction or Psychosocial Reality?" (1968) 2 L. & Soc'y Rev. 241

James Jr., F., & J.J. Dickinson, "Accident Proneness and Accident Law" (1950) 63 Harv. L. Rev. 769

Linden, A.M., Canadian Tort Law, 6th ed. (Toronto: Butterworths, 1997) at 115-76

Causation

Fleming, J.G., "Probabilistic Causation in Tort Law" (1990) 68 Can. Bar Rev. 661

King Jr., J.H., "Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences" (1981) 90 Yale L.J. 1353

McInnes, M., "Causation in Tort Law: Back to Basics at the Supreme Court of Canada" (1997) 35 Alta. L. Rev. 1013

McLachlin, B.M., "Negligence Law: Proving the Connection" in Torts Update Materials (Vancouver: Continuing Legal Education Society of British Columbia, 1988) c. 5

Waddams, S.M., "The Valuation of Chances" (1998) 30 Can. Bus. L.J. 86

Weinrib, E.J., "A Step Forward in Factual Causation" (1975) 38 Mod. L. Rev. 518

Duty of Care

Bohlen, F.H., "The Moral Duty to Aid Others as a Basis of Tort Liability" (1908) U. Pa. L. Rev. 217

Denton, F.E., "The Case Against a Duty to Rescue" (1991) 4 Can. J. Law & Jur. 101

McInnes, M., "The Question of a Duty to Rescue in Canadian Tort Law:

An Answer from France" (1990) 13 Dalhousie L.J. 85

Mullany, N.J., "Fear for the Future: Liability for Infliction of Psychiatric Disorder" in N.J. Mullany, ed., Torts in the Nineties (North Ryde, N.S.W.: LBC Information Services, 1997)

Mullany, N.J., & P.R. Handford, Tort Liability for Psychiatric Damage: The Law of "Nervous Shock" (London: Sweet & Maxwell, 1993)

Symmons, C.R., "The Duty of Care in Negligence: Recently Expressed Policy Elements" (Parts 1 & 2) (1971) 34 Mod. L. Rev. 394 & 528

Remoteness of Damage

Coval, C., J.C. Smith, & J. Rush, "'Out of the Maze': Towards a 'Clear Understanding' of the Test Remoteness of Damages in Negligence" (1983) 61 Can. Bar Rev. 559

Defences

Gravells, N.P., "Three Heads of Contributory Negligence" (1977) 93 L.Q. Rev. 581

Hertz, M., "Volenti Non Fit Injuria: A Guide" in L.N. Klar, ed., Studies in Canadian Tort Law (Toronto: Butterworths, 1977) 101

Kostal, R.W., "Currents in the Counter-Reformation: Illegality and Duty of Care in Canada and Australia" (1995) 3 Tort L. Rev. 100

Weinrib, E.J., "Illegality as a Tort Defence" (1976) 26 U.T.L.J. 28

Damages

Cooper-Stephenson, K.D., Personal Injury Damages in Canada, 2d ed. (Toronto: Carswell, 1996)

Fleming, J.G., "The Collateral Source Rule and Loss Allocation in Tort Law" (1966) 54 Cal. L. Rev. 1478

McInnes, M., "The Gendered Earnings Proposal in Tort Law" (1988) 77 Can. Bar Rev. 152

Waddams, S.M., The Law of Damages, 2d ed. (Aurora, Ont.: Canada Law Book, 1991) (looseleaf)

CHAPTER 3

SPECIAL TOPICS IN NEGLIGENCE

			A. Introduction
			B. Products Liability

1) Manufacturing Defects 2) The Duty to Warn a) Medical Products and the Learned Intermediary Rule 3) Reasonable Care in Design

C. The Doctrine of Informed Consent to Medical Treatment

1)

The Duty of Care 2) The Standard of Care 3) Causation (Cause-in-Fact)

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

1)		Negligent Misrepresentation a) Duty of Care i) Foreseeable Reliance/Reasonable Reliance The Prima Facie Duty of Care aa) The Expertise and Knowledge of the Representor bb) The Seriousness of the Occasion cc) An Initial Request for Information dd) Pecuniary Interest ee) The Nature of the Statement ff) Disclaimers ii) Policy Concerns The Issue of Indeterminacy b) Standard of Care, Causation, and Contributory Negligence
2)		Negligent Performance of a Service a) The Negligent Performance of a Gratuitous Service to the Plaintiff b) The Negligent Performance of a Contract of Service Causing Economic Loss to a Third Party c) Negligent Misrepresentation and Negligent Performance of a Service
3)		Relational Economic Loss a) Relational Economic Loss Arising from Property Damage i) Contractual Relational Economic Loss aa) The Plaintiff Has a Possessory or Proprietary Interest in the Damaged Property bb) General Average Contribution cc) Joint Venture dd) Transferred Loss ee) Pre-Bow Valley Authorities ii) Non-contractual Relational Economic Loss b) Relational Economic Loss Arising from Personal Injury or Death i) Contractual Relational Economic Loss ii) Non-contractual Relational Economic Loss Arising from Personal Injury or Death aa) Death of a Family Member bb) Injury to a Family Member
4)		Product Quality Claims

1)

Dangerous Defects 2) Non-dangerous Defects

H. Governmental Liability

1)

Corruption and Negligence 2) Negligence

			I. Prevention of Criminal Violence
			J. Educational Malpractice
			K. Legal Malpractice

1)

The Duty of Care of a Lawyer in the Conduct of Litigation 2) The Duty of Care to Non-client Third Persons 3) Informed Consent to Legal Representation

Further Readings

CHAPTER 3, SPECIAL TOPICS IN NEGLIGENCE