1. Breach of Standard of Care
2. DMG
2.1. DMGs are assessed on the functional approach in CML. (ter Neuzen) money is there to provide compensation for inconvenience that is done by the harm. Money serves to restore enjoyment of life to prior the dmg (subjective), has problems when encountering the coma patient argument
3. New/ambiguous categories of DOC: after the trilogy concerning DOC, there comes the Anns Cooper test to set a structure to recognizing DOC
3.1. Donoghue: creates the concept of a duty owed to neighbour for foreseeable damge that could spawn from my N. (Lord Atkins)
3.2. Hedley Byrne: there can be DOC for Pure eco loss, depends on the relationship. The accent here is DOC = relationship.
3.3. Doreset Yacht: there are policy concerns as well as remoteness ones when assessing DOC. these policy concerns are included in the Anns test structure
4. As see in Palsgraaf, Cardozo qualifies DOC as the gatekeeper to liability. It is relational, and has an element of proximity as well as foreseeability. A duty cannot be owed in the abstract or to a party at large
5. Positive duties: due to the principles of individual freedom and autonomy which are at the heart of CML (and also protection of the individual from state imposition of liability) positive duties are not recognized in CML logic is that there is no DOC at large (Cardozo). unless it's my hill you fall off, I aint liable for nothin (W. Van Gervan)
5.1. Note that CVL does not struggle with this. Omissions under 1457 can be faults, just as acts. As long as the Reasonable Person would've done something to avoid possible harm (Labelle v Gatineau). There is no positive duty per se, in French law, it is circumscribed through FAULT.
5.2. Van Gervan categories in German and French law which are not unknown to English law
5.2.1. Special relationship between the persons
5.2.2. Creation of risks for benefits
5.2.3. Ithrough law/K/ethical rules (professional)/general principle of GF
5.2.3.1. Ex: imposed by law: to help person in danger
5.3. Failure to prevent deliberate wrongdoing of 3rd party
5.3.1. In English law, no such general obligation, but might arise in situations of control or care (ex: landlord and nuisance)
5.3.1.1. See MULTIPLE WRONGDOERS and DORSET YACHT
6. Anns-Cooper Test
6.1. Adopted in Canada through Kamloops (and then modified by Cooper)
6.2. In Cooper, the test failed based on step 1 and 2. (the state was not held liable)
7. Step 1: Proximity: note that there is no particular order to R.F. and proximity. These are all part of the test regarding the relationship between the parties.
7.1. Is there reaonsable foreseeability iof harm in the relationship ( this is more or less the Donoghue formulation)
7.2. Is there sufficeint proximity between the parties that it would be fair an just to impose DOC The factors (not closed) to be considered here are:
7.2.1. expectations
7.2.2. representations
7.2.3. Interests (property or other)
7.2.4. reliance
7.2.5. Statutory obligations
7.3. Policy considerations related to this particular relashionship? (these will likely be considered inside of RF and prox.)
8. Step 2: Residual policy considerations (not relational, more broadly based)
8.1. Would this open up a floodgate of claims
8.2. Concerns with the specter of indeterminate liability
8.3. Considerations of contractual allocation of risk (especially in cases of pure economic loss)
8.4. Should this new group of obligation be created?
9. Misrepresentation as a type of pure eco loss
10. Deloitte: recent case of auditing. This case goes through the Anns Cooper test in a negligent misrepresentation (auditing) case. It is useful, because it illustrates the interaction between R.F. and proximity in the 1st branch of the Anns-Cooper test.
10.1. goes back to Mclachlin's original position in Norsk of no a priori exclusion of pure eco loss
10.2. Some much needed clarification on Anns-Cooper:
10.2.1. Proximity: relates to the close and direct relationship between the parties
10.2.1.1. Policy considerations are engaged at this stage. i.e. they will seldom be engaged at the second stage since the 1st stage will use them to negate DOC
10.2.1.2. There need not be policy considerations if the category of DOC is already established. However, this depends on an analysis of the particular relationship at hand, and no the category at broad.
10.2.1.3. In cases of Negligent Misrepresentation OR of performance of service, refer to the criteria in Hercules Management to assess proximity (which is compatible with the Anns test
10.2.1.3.1. What was the scope of the defendant's undertaking (cannot be responsible for what he did not undertake to protect)
10.2.1.3.2. Did the circumstances make it so that it was RF that the P would reasonably rely on D
10.2.1.3.3. Note that this not only determines the existence of proximity, but also the scope of the duty and rights which flow from the relationship.
10.2.1.3.4. In Hercules proximity relationship was confined to the preparation of statutory audit, not client-auditor at large!
10.3. Reasonable foreseeability: note how this concept interacts with proximity between parties
10.3.1. Here it is shown that Proximity informs the RF. The undertakings and reasonable reliance delimit the scope of injuries covered by RF. Baiscally scope of proximity determines RF.
10.3.1.1. 1.D should reasonably foresee that P would rely on representation
10.3.1.2. 2.Reliance in that case would be reasonable
10.3.2. By including Proximity in RF, court acknowledges that this narrows the scope of duty that can be found in NM through Anns. And this is what was intended to be: RF is not enough for DOC
10.4. 2nd and last stage: residual policy considerations (i.e. trad Anns like knowing the ID of P or whether reliance was made is no longer considered)
10.4.1. Cooper: 1) whether law already provides a remedy
10.4.2. 2) Whether recognition creates spectre of unltd liability to unltd class
10.4.2.1. It is rare that after a robust 1st test of the branch, this would be cause to deny.
10.4.2.2. It is indeterminate specific character, and not specific amount (Hercules).
10.4.2.2.1. 1.value indeterminacy
10.4.2.2.2. 2.temporal indeterminacy
10.4.2.2.3. 3.claimant indeterminacy (class)
10.4.2.3. This is just a consideration and not a policy veto. In cases of high risk undertaking, then even if it is indeterminate, might still be appropriate to hold liable
10.4.3. 3)Other reasons of broad policy considerations
10.4.4. Only in rare cases concerning governmental policy or quasi-judicial bodies should liability be denied
11. Hedley Byrne: must be sufficient proximity between parties to create a situation of trust and reliance despite lack of K. NOTE: this is a key decision that makes DOC advance through ANNS and recognition of Pure Economic Loss (through misrepresentation, it is a step away from the bright line rule of traditional CML)
11.1. 1.Special relationship
11.2. 2.Inaccurate/misleading information
11.3. 3.Negligence
11.4. 4.Reliance
11.5. 5.Detrimental effect
11.6. Here all of these were established, but the disclaimer was sufficient to discharge DOC
12. State DOC: Courts are very reticent to impose liability on the state, because of separation of power. CVL law has a same approach, and even integrates Anns (Cilinger v QC)
12.1. Note that Cooper and Anns were cases of State liability. This shows the tendency of enlarging liability categories, a point addressed by Lacroix. Whereas civil liability restricts the scope of liability.
13. Causation (factual causation) BUT FOR TEST
14. Remoteness (legal causation)
15. McLachlin does a good job at distinguishing Remoteness and DOC, since they both have an element of RF! IN DELOITTE.
15.1. 2 ways of limiting loss. Lawyers argue which is best, but they are COMPLEMENTARY (2 sides of the same coin). they invoke similar considerations. In the end, it does not alter the way in which the principle is applied.
15.1.1. Socpe of duty of care
15.1.1.1. looks at the relationship between D's advice and P's loss. (was it proximate?)
15.1.1.1.1. looks at PURPOSE of advice
15.1.1.1.2. RF that would lead to loss due to reliance
15.1.2. Remoteness (gives exact same result here, Beverly spends 1 paragraph on it)
15.1.2.1. looks at similar factors to the DOC: to establish close proximate connection between the wrongful act and the loss
15.1.2.1.1. Wrongdoing and the proximity to the loss claimed. Some factors from Mustapha (not closed):
15.1.2.1.2. Lord Lan finds that the 2 first ones are the same shit as the factors considered in Cooper to establish proximity. But the last one is more interesting, in that it addresses more specifically the chain of events, rather than relational foreseeability. Perhaps this distinction would be made clearer in cases of physical injury, but since it is a recognized category (Cooper), it is able to dodge the Anns test.
16. Childs v Desormeaux: in this case, we notice the Court's reluctance to impose positive duty on individuals The court will use the Anns test, which fails on 1st stage for RF & proximity
16.1. There are 3 categories where courts can find DOC
16.1.1. Creation of risks
16.1.2. Exercise of paternalistic authority
16.1.3. Performance of public obligations
16.2. If it can seemingly fit in one of the cats, then run Anns
16.2.1. Here fails on 1st branch: proximity. Not RF nor sufficient rel resulting in prox.
16.2.1.1. Note that knowledge of the drunkenness was decisive in this case. Nothing showed that the guy had drunk that much at the time.
16.2.1.2. Also there is no prima facie recognized category, since this was a BYOB event, and not a commercial one or one where ppl were actively encouraged to get wasted.
17. Crocker v Sundance: Cies creating risks (for their own profit) owe a DOC to the ppl who participate in the dangerous activity
17.1. CML is more willing to impose a DOC where there is special relationship between the parties. Here the fact that the guy was drunk and that Sundance knew of this was a decisive element, cause it negated the waiver of responsibility which was signed while drunk.
18. (Agape): Fuller had an view of "morality of aspiration for law" "The morality of good life, of excellence, of the fullest realization of human powers". So legislator should consider the Parabole, not just command.
19. Duty to rescue: not mandatory, but there is the (Good Samaritan Protection Act in Manitoba) which protects rescuers from liability, unless gross N
20. Issues concerning the NATURE of the INTEREST. CML, unlike CVL, does not treat all interests on the same footing.
21. Andrews: considered the question in Palsgraf under Remoteness rather than DOC
22. Wlliams v Ontario: SARS outbreak, gvt issued quasi-legislative directives. (not enough to establish a DOC)
22.1. State does not owe a DOC to private individuals, but to the public at large (Nile virus case).
22.2. Deference towards public officials who ought to weigh and balance many considerations when they make decisions
22.3. Uses Cooper to find a lack of proximity between the State and the specific individuals who died.
23. R c Imperial Tobacco: case of failure to warn, N misrep, N design. there are 2 ways of delimiting State liability
23.1. Discretionary decision approach: exemption is made if the decision undertook was of discretionary nature
23.1.1. Problem with this approach is that discretion is interpreted way too broadly.
23.2. Policy/operational approach
23.2.1. Problem is tracing the line between what is policy and what is operational
23.2.2. The court here will use the "core" policy decision apporach. The decision must be grounded in consideration of:__ nature
23.2.2.1. social
23.2.2.2. Economic
23.2.2.3. political
24. Multiple wrongdoers & multiple causes: this remains a Q of foreseeability and NAI
24.1. This will essentially be an appreciation of the facts, and whether one can be said to be NAI, breaking the chain and taking the blame. We see the decision can go both ways depending on the characterization. (Kanellos)
24.1.1. In this case, the reaction of a a human can either be "natural and foreseeable" thus not NAI
24.1.2. Or completely exagerated response that is the NAI
24.1.3. Considers: relative seriousness of the fault, ambit and degree of risk created, and foreseeability
24.2. Human causes favored over natural, faulty over non-faulty, gravity of the intervening effect (P.Cane)
24.2.1. In Dorset we see that even if the action was human and criminal, the fact that it was RF because of the rel of control negated the argument of NAI. There were also policy considerations in the arguments.
25. As long as some type of DMG is foreseeable, and results from N, then will be liable for all direct consequences
26. Recognized Categories of DOC these categories are note closed, but to create a new one, will ave to go through the Anns-Cooper test(expressed in Cooper)
26.1. Donoghue: manufacturer/consumer
26.2. Misfeasance in public office
26.3. Duty to execute gvt policy w/o N
26.4. Certain property interests
26.5. Negligent misrepresentation
26.5.1. we see in Deloitte that the Court is wary about imposing prima facie duty of care based on broad categories. They will be more granular and focus specifically on the PURPOSE of the proximity. Being proximate enough for one purpose doesn't imply proximity for all purposes.
26.5.1.1. Deloitte was not considered to fall directly into the category of auditor-client. Thus use Anns full analysis.
26.6. Foreseeable physical/psychiatric harm
27. Pure economic loss: CML is reticent to recognizing a duty towards this type of loss. As listed in Bow Valley, the reasons are:
27.1. Historically viewed as less worthy of protection than physical and property loss
27.2. specter of indeterminate liability: time, amount, class
27.3. Victim should anticipate this type of loss through insurance
27.4. Discourage multiple lawsuits
27.5. Confine economic risk-allocation to K
28. Weller v Foot and Mouth
28.1. 3 categories for economic loss when it is allowed
28.1.1. Direct injury to property
28.1.2. Consequential loss from former
28.1.3. Pure economic loss in cases of special relationship with express or implied undertaking of responsibility (Hedley Byrne)
28.1.3.1. Recognizes Hedley Byrne as getting rid of artificial categories of loss/class of victims
28.1.3.2. Yet still applies the bright line rule against pure eco loss (confines Hedley to relationships, though these categories are not fixed, and can be demonstrated)
29. CNR v Norsk: a case where Anns is applied in relational pure eco loss instead of the bright line rule
29.1. Rejects arguments against pure eco loss: there should be no a priori exclusion of it (McLachlin)
29.1.1. 1. the insurance argumentL assumes that victims are better suited to insure themselves than tortfeasors (would be interesting to make a link with the battle between 1st party and 3rd party insurance brought up by Atiyah)
29.1.2. 2. Loss-spreading argument: Here there is only 1 victim
29.1.3. 3. K-allocation of risk: assumes equal bargaining power between parties
29.2. Establishes through Anns that there is sufficient proximity for CNR to constitute a joint venture, so the absence of K is negligible.
29.3. Dissent (Laforest): maintain the bright line rule, unless it is a narrow recognized category
29.3.1. This encourages contractual allocation of risk, and in the case at hand, the P was in the best position to estimate costs, probability of dmg, and was in position to do this through K or insurance
29.3.2. Some reasons why a bright line rule should be favored over the narrowing the scope of duty approach:
29.3.2.1. Would avoid duplication of insurance
29.3.2.2. Avoids extensive factual investigation, and ad hoc line drawing
29.3.2.3. consumes less judicial resources, cause makes the law more predictable.
30. Bow Valley: the case that narrows Norsk by clarifying that relational eco loss is the exception rather than the norm
30.1. Acknowledges exceptional categories
30.1.1. 1. Claimant with possessory/proprietary interest in the dmged property
30.1.2. 2. General average cases
30.1.3. 3. Relationship where the claimant and the owner can be considered a joint venture (Norsk)
30.2. Note that in England, there is a bright line rule, and in CVL, there is only causal connection as lmt: CND is in between
30.3. If not above categories, then follow Anns test
30.3.1. Here the claim gets denied both by proximity and policy considerations
30.3.2. There are also positive policy considerations, as recognized by Laforest in Norsk for contractual relational economic loss:
30.3.2.1. Additional deterrence effects
30.3.2.2. The type of transaction is one where liability should be imposed for contractual relational economic loss:
31. Human Rights and Private Law: a matter of statute (some cases CST) rather than law
31.1. Senaca College: lady gets discriminated for employment in a school
31.1.1. There is no tort of discrimination
31.1.2. Ontario Statute replaces need for CML remedy
32. Wrongful Birth/Wrongful life: this is problematic on 2 ends: 1.against public policy to label birth as a harm. 2.difficulty calculating the dmgs based on functional approach (we are evaluating the difference in value of life vs death)
32.1. McKay v Essex
32.1.1. Failure to give abortion advice (choice between life and death)
32.1.1.1. The duty is viewed towards the mome rather than the kid, otherwise would mean giving the kid the right to remain dead.
32.1.1.2. Here it is decided that the calculation of dmgs is beyond human knowledge. so denies recovery, cause there is no way of recovering
32.1.1.3. No recovery for wrongful life, at all!
32.2. McFarlane v Tayside
32.2.1. Failed sterilization: birth of healthy Child. Here the decision is not about the choice between life and death, but whether the cost of bringing up the child should be recuperable
32.2.1.1. Offsets-benefits approach (Ramsay)
32.2.1.1.1. Either Benefits outweigh the loss
32.2.1.1.2. OR Benefits are incalculable, so leave it out of Court.
32.2.1.2. Here the decision to keep the child seems to break the chain of causation...
32.2.1.3. The otherwise direct and foreseeable Dmg = the stroller and other baby material can be recuperated, if it was discarded due to reliance on information that sterilization was successful
32.2.1.4. Some other BS reasons, but in the end: the law must treat birth of healthy baby as a blessing, not a harm
32.3. It is interesting to see how CVL sees this more as an affront to parental autonomy to decide size of family rather than calculate in a functional manner whether the birth can be a harm or not. Here we see that the way dmgs are calculated can have an effect on recognizing protected interests. QC uses in Cooke v Suite a personal approach.
33. Right to Privacy
33.1. Jones v Tsige
33.1.1. A case of intrusion upon seclusion (this American tort is officially recognized) and opens up the door to the rest of Privacy, but still restricted in CML.
33.1.1.1. Considers the Charter, legislation and looks at other jurisdictions for inspiration on guiding criteria for moral damages
33.1.1.2. Probably a response to technology permitting increasing invasion on privacy
33.1.2. Historically no such tort.
33.1.2.1. Here, the act was clearly morally wrong, and the judge did not feel it right that CML does not offer a remedy: case cries out for a remedy
33.2. Act to Address and Prevent Cyberbullying (the act must be intentional)
33.2.1. Possible punitive dmgs on top of general, special and aggravated dmgs
33.2.2. Allows injuction
33.2.3. Parents can be held jointly liable, unless acted reasonably
34. Alcock: a case of secondary victim loss. there is a question of proximity here. Also illustrates how CML was very conservative with psychological/emotional injury
34.1. Can only recuperate dmgs if it is a NERVOUS SHOCK
34.1.1. If nervous shock proven, then thin skull rule applies
34.2. Problem of proximity
34.2.1. Has to be witnessed 1st handedly on the spot, or directly seeing aftermath with own eyes (prox in time and space)
34.2.2. has to be sufficiently close in relation to the one injured (siblings under scrutiny, will depend of the judge's appreciation of the relationship, no fixed categories, apart from parent-child and spouse which are regognized) (prox in relationship)
35. Page v Smith: a case where CML moves beyond categorical distinctions between mental and physical injury
35.1. No longer is psychiatric injury confined to nervous shock
35.2. As long as personal injury is foreseeable (of any kind) lumps them together as PERSONAL INJURY, then thin skull rule applies... Lord Lan says this looks like Polemis
35.2.1. Dissent makes a distinction based on the TYPE of injury. (distinguishes between physical and psychiatric) and says that it was not RF that a person in this case would suffer psychiatric injury
36. Moral/mental injuries: CML typically struggles with pure intangible losses. As seen in Augustus v Gosset where CML would only allow pecuniary loss for solatium doloris.
37. Mustapha v Culligan
37.1. Though there is no longer a distinction between physical and psychiatric injury, the psychiatric injury must still be RF.
37.1.1. As long as this is established, apply think skull rule for the extent of the dmg.
37.2. Here was not RF that there would be injury of any kind from simply seeing a snail...
38. Saadati v Moorhead
38.1. you no longer hafta prove a recognized category of psychiatric illness to prove dmgs.
38.1.1. Serious prolonged disturbance above ordinary annoyances qualify
38.1.2. Must only RF psychiatric injury, but not specific illness
38.2. Confirms equal protection for mental and physical injury
39. Acts as a general limiting device for liability
40. Polemis: kinda looks like 1607
41. WM1
41.1. Overturns Polemis: the criteria is RF TYPE of dmg, not any kind of dmg. Restricts!
41.1.1. Note that WM2 succeeded because it was argued on the DOC path, so this is an example of a case where DOC and Remoteness don't give the same results.
41.1.2. Remoteness was argued instead of DOC here, cause else D could've invoked contributory N, which was a full defense at the time.
42. Hughes v Lord Advocate
42.1. Uses the notion of TYPE to broaden what qualifies as RF. Playing with the facts here! (lamp = fire = explosion)... Broadens!
43. Mustpha: RF was based on the type of harm: psychiatric. This case gives the outline of this concept map. Note that DOC was a regonized category here through Donoghue, so no need to pass through Anns, so it does not address the issue of going through RF twice.
44. Victim's behavior
44.1. Contributory N
44.1.1. Ontario Contributory N Act:
44.1.1.1. Assess the dmgs as if D had been fully liable.
44.1.1.2. Then Attribute liability based on proportionality of fault
44.1.1.3. If this can't be done, then split the pear in half
44.2. Assumption of risk: volenti doctrine is hard to prove in CML
44.2.1. Waldick v Malcolm
44.2.1.1. the volenti doctrine: mere knowledge of risk is not enough to absolve liability of the other if proven N. Must be explicit assumption of the risk
44.2.1.2. Lastoplex: must be known and willingly taken on.
44.2.2. Crocker v Sundance
44.2.2.1. Waiver is rejected here, cause was drunk
44.2.2.2. Participation cannot be considered an implicit waiver
44.2.2.3. What is the guy was not drunk? Likely argument would pass... (Lord Lan)
45. Predispotion of the victim: generally think skull rule will apply, so the extent of dmgs does not matter as long as the dmg (as a type) was RF
45.1. Leech Brain: case of burn resulting in cancer, BUT FOR test was passed at trial on balance of probabilities
45.1.1. Argues a distinction with WM1 which did not consider physical dmg (so no consideration of thin skull rule)
45.1.2. Note here that the cansur was qualified as a predisposition
45.2. Marconato: minor car accident resulting ins massive psychiatric harm
45.2.1. Not foreseeable here, but predisposition protects the victim through thin skull rule
45.3. Corr: suicide case. Here there was no argument of thin skull. SINCE THE SUICIDE WAS NOT QUALIFIED AS PREDISPOSITION< RATHER A RESULT OF PTSD
45.3.1. NAI was the central issue here: deciding whether it was an act of volition which breaks the chain of causation.
45.3.2. Wald (1-2)
45.3.2.1. Was not RF, according to trial judge, pay deference. But admits that could argue depression = ptsd = suicide, so RF
45.3.3. Sedley
45.3.3.1. Only considers causation, and for policy reasons, there is no break in causation here
45.3.4. Wilson
45.3.4.1. There is overlap between RF and causation, but must consider both.
45.3.4.2. Advances in psychology pressures law to widen notion of RF in scope of duty, break in legal causation, or remoteness. Here passes RF and causation (not a NAI)