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Torts (Canada)
Torts
| Question | Answer |
|---|---|
| Rylands v. Fletcher | the person, who for his own purposes bring on his land and collects and keeps there anything likely to do mischief if it escapes is answerable for all the damage which is the natural consequence of its escape |
| Defences to strict liability (5) | consent of the plaintiff; default of the plaintiff; act of god; deliberate act of a 3rd person; legislative authority |
| Ontario Limited v. Sagaz | the distinction between an employee and a contractor is the degree of control the employer has |
| Bazley v. Curry | the test for vicarious liability should focus on whether the employer's enterprise materially increased the risk of the harm incurred |
| Jacobi v. Griffiths | vicarious liability should ask whether the tortfeasor was carrying out his employment at the time of the tort |
| Donaghue v. Stevenson | you have a duty of care to your neighbour against foreseeable damage resulting from your actions |
| Cooper v. Hobart | the test for duty is (1) foreseeability and proximity (2) no policy negation |
| Hill v. Hamilton-Wentworth | the test for breach of duty is how the reasonable person in the circumstances would have acted |
| Bourhill v. Young | there must be foreseeability of plaintiff for liability in negligence |
| Dobson v. Dobson | a mother is not liable in negligence for injuries to her unborn child |
| Horsley v. MacLaren | there is generally no duty to rescue unless you cause the danger. if a 3rd person causes someone to be in danger and you have to rescue, you can sue the 3rd person |
| Jordan House v. Menow | there is a duty of care in a commercial relationship involving damages occurring as a result of intoxication and ejection in a manner known to be unsafe |
| Childs v. Desormeaux | there is no duty of care for a social host in a private party setting to monitor and control the intoxication and actions of guests |
| Oke v. Weide Transport | if the defendant participated in the creation of a hazard, he will have a duty of care to third parties |
| Zelenko v. Gimbel Bros | if a defendant undertakes a task, he must not omit what an ordinary person would do in performing it |
| O'Rourke v. Schacht | the police have a greater standard of care t the public arising from statute and common law |
| What are the 5 types of relationship that require rescue? | economic benefit; control/supervision; creation of a dangerous situation; reliance; statutory duties |
| Bolton v. Stone | the test for standard of care is whether the risk of damage to a person was so small that a reasonable man would have thought it too petty |
| Vaughan v. Menlove | the test for standard of care is objective |
| Blyth v. Birmingham Water Works | negligence cannot be found where an accident occurs as a result of actions that match up to the reasonable person standard |
| Waldick v. Malcolm | unreasonable customs will not negate a standard of care |
| R. v. Saskatchewan Wheat Pool | statutory breach may be indicative of negligence, but not conclusive |
| Gorris v. Scott | in order for negligence to be found in breach of statute, the damage complained of must be the damage sought to be eliminated by the statute in question |
| Ryan v. Victoria | a party acting under statutory authority must still take precautions as are reasonable within the range of authority to minimize risks |
| Heisler v. Moke | the test for negligence of a child is subjective and asks what the reasonable child of his age, intelligence and experience could be expected for do and foresee under the circumstances |
| Fiala v. Cechmanek | in order to be relieved of liability due to sudden mental illness, it must be shown BOP that as a result of the mental illness, the defendant had no capacity or had no meaningful control over his actions |
| Challand v. Bell | the test for medical negligence is that 1) the surgeon undertakes that he possesses the skill, knowledge and judgment of the average doctor, 2) regard is given to specialty, 3) if the decision was the result of exercising the average standard |
| Reibl v. Hughes | the court should consider objectively how far the balance in the risks of surgery or no surgery is in favour of undergoing surgery. there is a subjective element as well |
| Brenner v. Gregory | in order for a lawyer to be liable in damages it must be shown that the error or ignorance was such that an ordinarily competent lawyer would not have made or shown it |
| Kauffman v. TTC | there must be causation for negligence |
| Athey v. Leonati | the crumbling skull rule; a defendant may be found fully liable for contributing to an injury if the other cause was not tortious |
| Wakelin v. The London & SW RWY | the onus is on the plaintiff to prove the negligence of the defendant |
| Byrne v. Boadle | the res ipsa loquitor doctrine establishes prima facie evidence of negligence |
| Fontaine v. ICBC | res ipsa loquitor is no longer a valid doctrine |
| Leaman v. Rea | in the absence of any evidence enabling the court to draw a distinction between the parties, they must be held both and equally to blame |
| Snell v. Farrell | the ultimate burden remains with the plaintiff, but in the absence of evidence to the contrary adduced by the defendant, in inference of causation can be made |
| Walker Estate v. York Finch General Hospital | there are exceptions to the but-for test where the test is impossible or inappropriate, the exception is the material contribution test |
| Resurfice Corp v. Hanke | the material contribution test can be used in alternative to the but-for test if it is impossible to use the but-for test and there is clearly a breach of duty of care |
| Cook v. Lewis | where both parties were negligence, but it cannot be made out which one caused the injury, both shall be held liable |
| Fairchild v. Glenhaven Funeral Services | Where there is a sufficiently weighty reason to do so, and it's plain and obvious, the but for test will be relaxed |
| Sindell v. Abbott Laboratories | AMERICAN manufacturers of fungible goods can be held liable for their market share even if there wasn't a direct connection between the specific company and the plaintiff |
| Wagon Mound 1 | the test for remoteness is whether the defendant could foresee the possibility of the accident |
| Wagon Mound2 | the test for remoteness is whether there was a real risk that would occur to the reasonable man |
| Hughes v. Lord Advocate | in order to be liable, a defendant doesn't need to foresee the details of an accident, just that an accident may occur |
| Palsgraf v. Long Island Railroad | there must be proximate cause for liability in negligence, determined case by case with reference to factors like time and space |
| Smith v. Leech Brain Co | the question is not whether the defendant could foresee the extent of the injury, but the injury itself |
| Mustapha v. Culligan | the test is whether the defendant could reasonably foresee injury to a person of ordinary fortitude |
| Wieland v. Cyril Lord Carpets | the original defendant may be liable for secondary accidents as a result of the first injury |
| McKew v. Holland | an original defendant can be held liable for secondary accidents so long as the plaintiff was not acting unreasonably |
| Harris v. TTC and Miller | a defendant can be found to be partially liable where the injury is cased by the plaintiff's negligence and foreseeable by the defendant and the duty to prevent it was not discharged |
| Ives v. Clare Brothers | defendants can be held jointly liable when they are both negligent down the chain in their dealings with the plaintiff |
| Hollis v. Dow Corning Corp | the ultimate duty of the manufacturer is to warn the plaintiff adequately, which may be discharged by warning an informed intermediary |
| Butterfield v. Forrester | the last chance rule is that the person with the last chance to avoid the accident is liable for it if he was also acting negligently |
| Galaske v. O'Donnell | a driver has a duty to ensure that child passengers are wearing their seatbelts |
| Hambley v. Shepley | there is not a relationship of voluntary assumption of risk between a policeman and any member of society |
| Hall v. Hebert | in some cases, the court may deny recovery based on the unlawfulness of the plaintiff's conduct |
| British Columbia v. Zastowny | the court can deny recovery when the unlawful conduct of the plaintiff would make recovery inconsistent with the principles of the justice system |
| Garratt v. Dailey | intent requires either a desire to bring about consequences or a knowledge with substantial certainty that the consequences will arise from the action |
| Tillander v. Gosselin | in order for there to be an intentional tort, there must be capacity to understand the nature and consequences of the action |
| Lawson v. Wellesley Hospital | no tort without capacity |
| Smith v. Stone | an act must be voluntary for it to be a tort |
| Betel v. Yim | the intentional wrongdoer is liable for all consequences of his action |
| Goshen v. Larin | injuries sustained from accidents that are not negligent are not torts |
| Cole v. Turner | battery must be physical, can be to the body or things closely connected to the body, and must be harmful or offensive |
| Carnes v. Thompson | the doctrine of transferred intent occurs when a different person is hit than intended or a different tort occurs |
| Tuberville v. Savage | the intention as well as the conduct make the tort of assault |
| Stephens v. Myers | the threat must be imminent and there must be means of carrying it out |
| Mainland Sawmills | the plaintiff must reasonably believe that he is in danger of violence |
| I Des v. W Des | harm is not required for an assault |
| Bruce v. Dyer | there doesn't need to be an actual intention to use violence or even the power to do so; it's enough if the plaintiff has reasonable grounds to believe that he is danger of it |
| Bazley v. Clarkson | mistake is no excuse. all the intent required for trespass to land is that the defendant intends to make contact with the land |
| Entick v. Carrington | if the defendant can't show legal authority, it's trespass |
| Atlantic Aviation v. NS Power | trepass cannot be established where there is no direct interference with the land |
| R. v. Burko | it is not trepass when there is an implied right to be on the land for some reason |
| Roth v. Roth | there is an actionable tort of invasion of privacy that is not contingent upon trespass to proprietary rights. it's a substantial intrusion that the reasonable person would find offensive or intolerable |
| Wilkinson v. Downton | the test for infliction of mental suffering is outrageous conduct for the purpose of causing harm, and does cause harm |
| Pugliese v. NCC | balance right of neighbours. nuisance is only actionable in cases outside the ordinary scope, where the harm or risk is greater than one should be required to bear |
| Appleby v. Tobacco | injunctions should be granted where it's unreasonable for the plaintiff to endure the nuisance regardless of monetary damages |
| Nor Video | enjoyment of the land can include recreation |
| Russell Transport | 1) severity of the interference, 2) character of the neighbourhood, 3) utility of the defendant's conduct 4) sensitivity of the plaintiff |
| Renyan v. Antonenko | legal authority will depend on circumstances and relevant statutes |
| Bird v. Holbrook | some anti-trespass devices are unreasonable if they are meant to maim or harm people |
| Green v. Goddard | one must ask a trespasser to leave before one can use force |
| O'Brien v. Cunard | consent, whether explicit or implied by overt actions negates a tort |
| Norberg v. Wynrub | consent requires free will and freedom from any threat |
| Marshall v. Curry | there is no tort in emergency medical action in which informed consent cannot be reasonably granted |
| Malette v. Schulman | there is battery in the violation of the express wishes of a medical patient, even in the case of a medical emergency where informed consent cannot be obtained if there is a prior decision that has been communicated to the doctor |
| Vincent v. Lake Eerie | necessity is only a defense when there are no other viable options open |
| Dwyer v. Staunton | private mischief shall be endured over public inconvenience |
| Cockroft v. Smith | force used in self defense must be reasonable and proportionate to the force the defendant is threatened with |
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SuzanneKittell
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