You are on page 1of 41

1

Tort Law Cases/Assignments


Trial Procedures
Lewis v. Robinson 2001 BCSC 643 British Columbia Supreme Court
The plaintiff, Kenneth Lewis, was a delivery person. He knew that the defendants, Will
Robinson and Marci Salach, were the new owners and occupants of the property, but
Lewis didn't know that the defendants had a dog. Lewis entered the property and was
confronted by Salach and her dog. She was holding the dog's leash at the time. Most
times, the dog was chained to its doghouse on the defendants' property. However, on this
particular day, Lewis arrived on the property, startling Salach and the dog. Salach asked
Lewis to identify himself, received no response, and then warned him that the dog did not
like strangers and to be careful. Lewis saw the defendant speaking, but claimed he
couldn't hear her as the dog was barking. He tried to pet the dog and then tried to move
out of the dog's range when the dog bit his hand. Prior to this incident, the dog had never
attacked, bitten, or lunged at strangers, and there was no evidence of complaints from
neighbours or friends. Lewis brought an action for damages, but his action was dismissed.
For Discussion
1. Why did Lewis bring an action against the defendants
.
Lewis believed he was entitled to damages for the injury he suffered when the dog
bit his hand.
2. Summarize the conflicting evidence.
Lewis claimed that the defendants should have taken greater care to protect
strangers from the dog. Although the dog was being held on a leash, Lewis felt that
the defendants should have had the dog chained. Finally, he was only trying to be
friendly and pet the dog. The defendants would argue that Lewis was a stranger on
their property, that he was asked to identify himself and didn't, and that Salach had
warned him that the dog did not like strangers, and that he should be careful.
3. Based on the evidence presented, why do you think the plaintiff's action was
dismissed? Lewis's action was dismissed because the accident was his own fault. He
ignored all of Salach's advice and warnings; the dog was secured and on its own
property; and it had never shown any vicious or aggressive tendencies before this
incident. With conflicting evidence, the judge must base his decision on the
credibility of the witnesses and the balance of probabilities. In this case, the
defendants' version seemed much more credible. Fault for the accident seemed to lie
with Lewis alone.
Review Your Understanding
1. Distinguish between the plaintiff and the defendant. The plaintiff is the person suing
in a civil action; the defendant is the person being sued.

2. What does the "balance of probabilities" mean in a civil action? How does it differ
from the burden of proof in a criminal trial? The plaintiff in a civil action must prove
the case on the balance of probabilities. This means that he or she must show that

2
the events took place in a way the plaintiff described them. The defendant will try to
do likewise, and it will be up to the judge to determine which version is more
credible, or believable. In a criminal trial, the burden of proof is on the Crown to
prove the charges against the accused beyond a reasonable doubt. This is a much
higher standard or onus of proof.
3. Identify four key pieces of information that must appear on a plaintiff's claim. The
following information must appear on a plaintiffs claim: the plaintiffs full name and
address, the defendant's full name and address, reasons why the plaintiff is suing,
and the amount the plaintiff is claiming.

4. Briefly outline the four options available to a defendant who disputes a plaintiff's claim.
Options available to a defendant who disputes a claim include filing a defence or
reply, making a payment into court, making a counterclaim, or involving a third
party in the claim.
5. Explain the significance of a default judgment. A default judgment is automatically
awarded in favour of the plaintiff if the defendant does not reply to the summons
within the required time. It is a victory for the plaintiff, who wins without the need
for a trial.
6. Outline the benefits of an out-of-court settlement. An out-of-court settlement avoids
a lengthy, formal, and expensive trial. The benefits are a savings of time and money
for all involved.
7. Explain the purpose of a pre-trial conference. A pre-trial conference is an effective
way to resolve many cases before they reach the trial stage, or to resolve and focus
as many issues as possible before the trial begins.
8. Outline the benefits of an examination for discovery.
The examination for discovery is a question and-answer session for the parties
involved and their lawyers. It ensures that information is disclosed about each side's
case, reduces court time, saves money, and facilitates a settlement.

The Judgment and Civil Remedies (All About Law.


Gibson, pp.321-327)
The Supreme Court of Canada Trilogy
For Discussion
1. What factors do the courts consider when awarding damages for pain and suffering?
In awarding damages for pain and suffering, courts have to determine the degree of
pain and suffering and the impact of the injury on the victim's life. Students should
understand that this determination is difficult because it is subjective. Is one

3
person's pain and suffering greater than another person's? How do you assign pain
a value in the case of varying injuries such as whiplash, loss of an eye, severe
headaches, nightmares, post traumatic stress syndrome, and so on? What effect has
the injury had on that person's lifestyle? Because it is so difficult to answer these
questions, the Supreme Court of Canada established the $100 000 ceiling for pain
and suffering in 1978. (This amount has been adjusted for inflation over the years.)
2. In the case of permanent disability, a key issue for courts to determine is whether the
victim's future care should be in an institution or a modified home. Although home
care is preferable, it is more expensive. In a chart, outline the advantages and
disadvantages of an institutional versus modified-home environment.
Advantages

Disadvantages

Modified Home
Institution
. Victim is in a . The facility
familiar,
is
mendly
geared to
environment.
. If the victim is an
people with
adult.
she or he can
disabilities.
maintain
pride of home
. There is 24ownership.
hour care.
. It may be
. Home can be
less
accommodated to expensive
the
than
modifYing
disability.
the
. Family members
home.
and
mends have greater
ueedom within the
home.
. Home
. Institutions
modifications
can
may cost a great
never replace
deal of
money.
the comfort of
. The vIctim may
home.
still
need care, which
. The quality
must
of
be purchased or
an institution
provided by family rests on its
members.
management,
which can
change at any
time.

3. Discuss the merit of having a ceiling for pain and suffering in the 21st century.
Answers may vary. Some may argue that it would be advantageous to have a ceiling

4
that could not be exceeded except in "exceptional circumstances," based on the
severity of injuries, the victim's disability, and changing economic conditions. This
would provide consistency and stability in award judgments for this portion of
damages. Also, it tends to discourage multi-million dollar' judgments commonly
awarded in the United States (such as the infamous McDonalds "hot coffee"
incident). The counterargument is that because most people have liability insurance,
no ceiling is necessary, as insurance companies would bear the burden of the
damage awards.
Tran v Financial Debt Recovery Ltd.
(2000) 193 D.L.R. (4th) 168 Ontario Superior Court
of Justice
The plaintiff, Mark Tran, had a student loan that remained unpaid. He
graduated from the University of Toronto with a commerce degree in
1996. Collection of Tran's loan had been transferred from the original
lender to the defendant collection agency. Tran questioned the amount
owing and refused to make any payments until the issue was cleared
up The defendant agency and its employees then began a planned
campaign of harassment. They lied about their identities, Tran at work,
threatened him with physical harm, and repeatedly telephoned Tran
and other employees at his office. After receiving seven abusive calls
within 30 minutes, the receptionist threatened to call the police if the
callers didn't stop. The agency also lied to Tran's employer, claiming
that he was looking for work with a competitor, that there was a court
judgment he had not paid, and that he was financially irresponsible.
As a result of these events, Tran's employer did not give the plaintiff
his annual raise or bonus. Tran, unrepresented by counsel, brought an
action for $15 000 for damages to his reputation, for humiliation and
emotional suffering, and for economic loss. The trial judge found in Tran's
favour and awarded him $25 000 plus court costs.
For Discussion
1. Briefly summarize the main issues in this case.
The plaintiff would argue that the main issue was damage to his reputation caused
by comments made by the defendant company. The defendant company would
argue that it was simply trying to collect the money that Tran owed them for his
student loan. Also, it might argue that it had not damaged his reputation by these
actions, as he was a new employee who hadn't yet established a reputation.
2. How was Tran's reputation damaged from this incident?
The incident damaged Tran's reputation because it caused his employer to thinkincorrectly that he was disloyal and unreliable. The defendant's actions also cost
Tran a raise and bonus. Although the remarks were not published or communicated
to many people, they were directly communicated to Tran's employer. Tran's

5
reputation was defamed (harmed) because the remarks were untrue and injurious
to him.
3. Tran based his action on three factors: his loss in income; the time he spent daily
doing exercise and meditation to relieve the stress caused by the defendant; and a
modest amount to compensate him for the loss of weight and humiliation caused by
the defendant. Although he felt his damages were about $40 000, he reduced that
amount to $15 000 because he did not want to appear unreasonable. What factors do
you think the trial judge took into consideration in awarding $25 000 plus court costs?
Answers may vary. The trial judge felt that Tran had short-changed himself and
increased the judgment to $25 000 even though Tran had only asked for $15000. The
defendant's conduct toward Tran was deliberate and flagrantly abusive. The
remarks injured the plaintiff, there was no justification for the defendant's actions,
and the defendant's actions definitely caused emotional suffering. The judge even
suggested that there might have also been a basis for punitive damages, but he did
not award them.
Note: It is most unusual for a plaintiff to represent himself at this level of court.
Plaintiffs often represent themselves in Small Claims Courts, but not in the Ontario
Superior Court of Justice. Punitive Damages
Update: On February 22, 2002, in a 6 to 1 decision, the Supreme Court of Canada
restored a record $1 million punitive damages jury award against Pilot Insurance,
the largest ever awarded in Canadian history. Prior to this, the highest award was
$15 000. This judgment provides the most extensive discussion yet of the principles
and factors governing punitive damage awards in Canada. For details, see Whiten v.
Pilot Insurance Co,. [2002] S.C.R. 18, File #27229.
Dunne v. Gauthier 2000 BCSC 1603

British Columbia Supreme Court

The plaintiff, David Dunne, was a school-bus driver who drove the four children
of the defendant, David Gauthier. One November morning in 1996, the children
boarded the bus. One child told Dunne that they would not be taking the bus
home. However, at the end of the day, three of the four children caught the bus.
Dunne didn't ask about the fourth child, a six-year-old boy, nor did the Gauthier
children say anything about their brother. About 60 children were on the bus for
the ride home.
Shortly after school dismissal, Gauthier heard a recorded phone message from
his young son, upset about missing the bus. The father then phoned the school and
said he'd break both of the driver's legs if his son was not on the bus when it got
home. The school arranged for a ride home for the boy and called the boy's home
with that news. When the bus arrived at the Gauthier home, however, the defendant entered the bus, tore the telephone from Dunne's hand, and threw it out the
bus door. Then, Gauthier put his arm around Dunne's neck, twisted it, and forced
the driver down while he was still strapped in his seat belt. Fifteen children were
still on the school bus and witnessed this attack. As Gauthier left the bus, he told

6
Dunne that if he ever saw him on the road, he would "take" him and the bus "out."
Dunne completed his route and then went to hospital for emergency care. He sued
the father for personal injuries, psychological and emotional problems, and
depression, and was awarded $10 000 general damages, $5000 aggravated
damages, $3425 for lost wages, and $1600 special damages.
For Discussion
1. In his defence, Gauthier claimed that the plaintiff's reaction to the assault was
unreasonable and that he shouldn't have been so affected by what happened. What
argument could the plaintiff make to counter this claim? 1. The plaintiff, Dunne, could
argue that the assault was unwarranted and posed a threat to his safety. In addition,
he was humiliated by being battered in the presence of 15 children. The entire
incident was a traumatic experience that resulted in psychological and emotional
problems.
2. Gauthier also argued that he was broke and couldn't pay any award, even if the court
found in the plaintiff's favour. Should this be a concern of the court in reaching a judgment? Explain. 2. Lack of ability to pay should not concern the court in reaching a
judgment, and it didn't in this case. An award must be fair to both parties, and the
ability of the defendant to pay has never been regarded as a relevant factor. The
focus should be on the injuries or harm done to the innocent party and the
necessary compensation.
3. What factors do you think the court considered in awarding aggravated damages?
3. Before awarding aggravated damages, the court undoubtedly considered whether
or not Gauthier's behaviour was unwarranted and outrageous, and concluded it
was. Dunne suffered particular humiliation because the assault occurred on the bus
in front of the children.

Review Your Understanding


1. Distinguish between the two main categories of general damages. 1. The two main
categories of general damages:
. loss of income and future earnings, and the cost of specialized future care
. pain and suffering, and loss of enjoyment of life
The first group represents pecuniary losses (damages that can be calculated easily in
monetary terms). The second group represents non-pecuniary losses (damages that
cannot be easily calculated in monetary terms as it is difficult to put a price on pain
and suffering, emotional suffering, and so on).
2. Why is it difficult to determine what damages to award a young child? 2. It is difficult
to determine damages for a young child because too many factors are unknown
when trying to establish dollar amounts, such as the child's life expectancy, cost of
future care, the child's future career and loss of earning potential, and so on.

3. Distinguish between special and nominal damages. 3. Special damages compensate


for specific out-ofpocket expenses already incurred before trial, for example, the
cost of drugs, therapy, an ambulance trip, car repairs, and so on. Nominal damages,
ranging from one dollar to a few hundred dollars, are awarded to signify that the
plaintiff has won a moral victory, for example, when someone trespasses on
another's property without causing any damage.
4. Distinguish between punitive and aggravated damages. 4. Punitive damages are
awarded to deter and punish the defendant for bad, insensitive behaviour, and to
deter the public from committing similar torts. Aggravated damages are awarded
when the defendant's behaviour is so outrageous that it harms the plaintiff. The
latter are intended to compensate the plaintiff rather than punish or deter
defendants.
5. What is an injunction, and when might it be awarded in a civil judgment? 5. An
injunction is a court order that restricts a person's behaviour or stops someone's
actions from interfering with the rights of another individual. It might be awarded
in a civil judgment if the plaintiff is not interested in monetary compensation.
6. What is a contingency fee system? Identify one advantage and one disadvantage of this
system. 6. A contingency fee system is a financial arrangement between a lawyer and
client. At the start of the case, the parties agree that, if the action is successful, the
lawyer will receive a percentage of the judgment, and nothing if the client loses the
case. Contingency fees are valid in all provinces except Ontario. One advantage of
this system is that it allows those who cannot afford legal fees in advance to take
legal action. A disadvantage is that this system could lead to an excessive number of
actions and multimillion dollar lawsuits because the client does not have to pay
anything.
7. Briefly outline three remedies available for enforcing a judgment.
7. Three remedies for enforcing a judgment:
. garnishing the income of the defendant
. ordering the defendant to disclose his or her assets in court, and arriving at a
payment arrangement
. seizing the defendant's assets or property to settle the judgment

Petersen (guardian ad litem) v. Surrey School District No. 36 (1991),


89 D.L.R. (4th) 717 (B.C.S.C.)
Sixteen-year-old Todd Petersen was an excellent grade-eleven student and a good
athlete. He was playing a game of rag ball in the school gym when a bat flew out of a
teammate's hands and hit Todd in the face. The bat had a damaged grip and no safety
grip. It was the first time Todd had played the game, and he had obeyed the teacher's
instructions about where to stand when he was the batter on deck. None of the
students had been instructed about the dangers of the game or warned not to lose
control of the bat. 'Todd suffered serious facial injuries that left him with permanent
double vision and delayed him from obtaining his university degree by about two

8
years. In his name, Todd's parents sued the school. Expert reports considered at
trial estimated that Todd would suffer a loss of $124 422 in future earning
capacity due to the two-year delay in his uni versity education. The Court found
this amount too high and awarded him $75 000 for loss of future wages and an
additional $75 000 in non-pecuniary general damages.
1. Why was a guardian ad litem required? 1.A guardian ad litem was required
because Todd was a minor when the injury occurred.
2. What will the non-pecuniary damages cover? 2. Non-pecuniary damage_ are
awarded to cover Todd's reduced quality of life as a result of double vision and
serious facial injuries.
3. Do you think it was appropriate for the judge to award pecuniary damages that
were lower than the amount experts estimated for future loss of income? Explain.
3. Answers will vary. You should bear in mind some of the factors the judge may
have considered:
The reliability of the expert report: as with any piece of evidence, the
judge is free to accept or reject it.
The fact that the defendant is a publicly funded school board:
governments sometimes pass legislation limiting the damages for which
taxpayers are ultimately responsible.

ALTERNATIVES TO TRADITIONAL SENTENCES (Learning


About Law, p.219-210)
R. v. Morin 91995), 101 C.C.C. (3d) 124 (Sask. C.A.) Application for leave to appeal to
S.C.C. filed October3, 1995
Ivan Morin pleaded guilty to the offence of robbery with violence contrary to sections
343(b) and 344 of the Criminal Code. His request for a sentencing circle was granted
by the trial judge, even though the prosecution disagreed with the request. Morin was
sentenced to 18 months' imprisonment and a further 18 months' probation with condi tions, including electronic monitoring. The Crown appealed this decision and Morin
was sentenced to an additional 15 months' imprisonment by the Saskatchewan Court of
Appeal. The judgment noted that the original sentence imposed on Morin was well
below the bottom range for the offence for which he had been convicted.
In its decision, the Saskatchewan Court of Appeal noted that sentencing circles are a
well-established form of sentencing in Canada, even though there is no provision for
them in the Criminal Code. The Court noted, however, that circles are inappropriate in
those cases where the term of imprisonment for the offence should clearly be greater than
two years. When a sentence of more than two years is ordered, judges may not impose
additional conditions once the offender is released. There is no process that would oblige
an offender to meet the conditions set by a court in that circumstance. Sentencing circles

9
may be called by a judge who believes that the healing approach will have a better result
for both the offender and the community than the usual sentencing process.
1. Should courts consider alternatives for sentencing some groups of people when the
usual process of sentencing does not seem to work well for them? Explain. 1. ADR,
alternative dispute resolution, is an alternative to litigation as a way to resolve civil
actions. Negotiation, mediation, and arbitration are the three options available.
2. Why can a judge not use a sentencing circle if the offender's crime requires a sentence
of more than two years' imprisonment? 2. ADR is being used more often to resolve civil
disputes because it avoids the costs and risks of litigation, and it usually results in a
win-win situation, that is, both parties gain some benefit.
3. Should sentencing circles be available to non-Aboriginals? Explain. .

Tort Law Unit Highlights/Matching (All About Law, Gibson, p.333)


Name the key terms that are described below.
a) party who is being sued in a civil lawsuit a) defendant
b) person who is suing in a civil lawsuit b) plaintiff
c) legal document in a civil action outlining the plaintiff's case against the defendant c)
claim
d) a court order requiring a person to do or not do something d) injunction
e) money awarded to a plaintiff for pain and suffering and for cost of future care e) general
damages
f) money awarded to a plaintiff for specific out-of-pocket expenses f) special damages
g) money awarded to a plaintiff to punish the defendant for bad or uncaring behaviour g)
punitive or exemplary damages
h) proof needed in a civil action h) balance of probabilities
i)
a process more formal than mediation for resolving disputes between persons
through a third party i) arbitration
j)
an attempt by a neutral third party to get two opposing parties to come to an
agreement j) mediation

10

k) an informal and voluntary dispute resolution process between the parties involved
without the involvement of a third party k) negotiation
1) a defendant's response to a plaintiff's claim l) defence
m) decision made in the plaintiff's favour when the defendant does not reply to the
plaintiff's claim within the required time period m) default judgment
n) the procedure by which a defendant's money in the hands of a third party is claimed by a
plaintiff to settle an unpaid judgment n) garnishment
o) the process of suing 0) litigation
p) a valid reason for suing p) cause of action

Grant v. Dempsey/ Thomas v. Hamilton (City) Board of


Education
Grant v. Dempsey (2001), 190 N.S.R. (2d) 392 (Nova Scotia Supreme Court)
On October 14, 1995, the 18-year-old plaintiff Adrian Grant, was lying in the middle
of a street in Middleton, Nova Scotia, severely intoxicated, wearing dark clothing. At
1:30 A.M., he was run over and seriously injured by a van operated by the defendant,
Garth Dempsey. The defendant had been working on renovations with a fellow worker
until close to 1:00 A.M. that morning, and was driving home at a speed between 40 and
50 km/h. It was a dark, but dry, night, and there were no streetlights in the area. Shortly
before the accident, Dempsey met a pickup truck coming down the road. He put his
van's lights on low beam before meeting the oncoming vehicle. As he looked ahead,
Dempsey had no time to put his headlights back on high beam because he immediately
"saw an object right there in front of him." He testified that he thought it was a duffle
bag or a garbage bag. When he realized he had run over a person, he called 911.
Evidence at trial indicated that the plaintiff had a blood-alcohol level of about 193
(about two and one-half times the legal limit for driving) at the time of the accident, and
he had no recollection of how he came to be lying of the road. He testified that he
would sometimes drink a case of beer in a couple of hours. The judge concluded that
Grant was lying on the road as a result of severe intoxication and remained in that state.
The plaintiff sued for damages for personal injuries, but the court dismissed the action.
a) Can you find any fault in Dempsey's driving? Explain. a) Answers may vary.
Dempsey was driving at a reasonable speed on a road that was poorly lit. He didn't
have sufficient time to stop before driving over an unidentified object on the road.
He certainly didn't expect to find a person lying in the road.

11

b) To what extent was Grant responsible for his own injuries? Explain. b) Grant was
completely responsible for his injuries. He was wearing dark clothing and was
drunk, passed out, and lying in the middle of a road at 1: 30 in the morning. He
created an emergency situation that Dempsey could not have expected.
c) Why do you think the court dismissed Grant's action? c) The court dismissed
Grant's action because he was the sole cause of his unfortunate accident. In fact, the
trial judge stated that Dempsey was driving reasonably and his actions upon seeing
the unexpected object on the road were reasonable. He had no time to do anything
else.
Thomas v. Hamilton (City) Board of Education (1994), 20 O.R. (3d) 598 (Ontario
Court of Appeal)
Jeffry Thomas, an athletic 16-year-old student at Scott Park Secondary School,
was one of the best and most experienced players on his school's junior football
team. He also played in the Steel City Peewee League and was named the most
valuable offensive player in the league. Football skills were taught as part of the
regular classroom physical education program and as an extracurricular activity in
Hamilton high schools. Games were coached by teachers selected by school
principals. Students were eligible to play junior football if they were not older than
15 years at the beginning of the school year, and if they pro vided a permission
form signed by their parents and a medical certificate indicating that they were fit
to play football.
Between 1980 and 1982, Thomas played foot ball and basketball, rode his bike,
jogged, and lifted weights four times a week. By the fall of 1982, he was 183 cm
tall and weighed about 68 kg. In October 1982, during a football game, Thomas
tackled an opposing player, headfirst, crashing into the punt returner's hip. Thomas
was running at jogging speed or faster; the punt returner was running at full speed.
All witnesses agreed that the contact between the two players was substantial, and
that Thomas's body was extended but his head was not up at the point of contact.
He and the other players had been taught to tackle with their shoulders, not their
heads, and contact should be made with a shoulder. Thomas suffered serious injury
to his cervical spine, which left him quadriplegic. Thomas and his family sued the
school board and the school football coaches. The action was dismissed at trial,
and Thomas and his family appealed to the Ontario Court of Appeal. In a 3 to 0
judgment in late 1994, the appeal was dismissed.

a) Outline the arguments that could be made on behalf of the plaintiff. a) For the
plaintiff, it could be argued that the school's football coaches might have better
prepared Thomas and the other players with safety strategies. The opposing team's
player, who collided with Thomas and who was partly the cause of the injury, might
have been less aggressive. Given the' severity of the injury and the fact that Thomas

12
was left a quadriplegic at such a young age, an action for millions of dollars-for pain
and suffering, loss of enjoyment of life, cost of future care, loss of future income-was
justified.
b) Why did the plaintiff sue the Hamilton Board of Education? b) The plaintiff,
Jeffry Thomas, sued the school board (the teacher's employer) for not exercising a
proper or adequate duty of care. This is the principle of vicarious liability, which
will be discussed.
c) What factors do you think the court took into consideration in dismissing the
plaintiffs appeal? The appeal was dismissed because there, was no negligence on the
part of the coaches or the school board. The incident was simply an unfortunate
accident that occurred during a routine play. The teacher coaches and the school
board acted as reasonable persons who exercised a proper and adequate duty of
care. As well, Thomas took a voluntary assumption of risk because injuries can
occur in football. Also, Thomas and his mother had signed a consent form whereby
they consented to the normal risks of the game.

Negligence and Other Torts (All About Law, Gibson, pp.333-345)


Review Your Understanding
1. Why should all Canadians know something about tort law? 1. All Canadians should
know something about tort law because it has a direct impact on their daily lives.
Because tort law affects a person's property, reputation and freedom, daily
activities, and interaction with others, it is important to be aware of basic tort law
principles.
2. What is negligence, and why is it the most common form of tort law? 2. Negligence
occurs when someone creates an unreasonable or unplanned risk and carelessly and
unintentionally injures another person or a person's property. Negligence is the
most common form of tort because people socialize with one another all the time-a
situation that frequently leads to accidents and injuries.

You Be the JUDGE


In a 9 to 0 ruling in April 2001, the Supreme Court of Canada ruled that the Canadian
Red Cross Society was negligent in supplying blood products containing the HIV virus to
two patients. Both patients contracted AIDS and died. Their estates received awards of
close to $1 million.
Why do you think the court found the Red Cross negligent?
The Supreme Court of Canada found the Red Cross Society negligent because it
failed in its duty to exercise an adequate standard of care--it failed to ensure the
safety of the blood supply being used for transfusions. The Court ruled that the Red
Cross made a serious error when it elected to simply ask prospective blood donors a

13
routine screening question about whether they felt they were "in good health." The
Court said that this decision flew in the face of advice from its own medical staff and
fell below a standard of care set by the American Red Cross at the time. That agency
was posing more specific questions to donors and describing some of the symptoms
a carrier of HIV might be experiencing.
For Discussion
1. What can victims do if the amount of the property loss or damage exceeds the Small
Claims Court limit of $10 000? 1. If the loss or damage exceeds Ontario's Small
Claims Court limit of $10 000, victims can sue in the Ontario Superior Court of
Justice for a larger amount. Depending on the limit, though, a tradeoff exists.
Actions in Small Claims Court are processed quickly and inexpensively, while
actions in higher courts may be lengthy and costly to pursue. If the amount being
claimed is close to $10 000, then it probably makes sense to file the claim in Small
Claims Court.
2. "This new legislation will create new business for lawyers in defending Small Claims
Court actions on behalf of families." Discuss with a partner the extent to which you agree
or disagree with this statement. 2. Answers may vary. Some may agree with the
quotation because they believe that lawyers like to challenge new laws and test them
in a courtroom, knowing that early tests of legislation may establish precedents.
Also, parents wanting to avoid liability for their children's vandalism maybe more
likely to engage a lawyer's services because the Act places less of the burden of proof
on the plaintiff and more on the parents. Other students may disagree; pointing out
that Small Claims Court is not an appropriate arena for this kind of contest.
3. Should all provinces have a Parental Responsibility Act? Why or why not? 3. Answers
may vary. Because Manitoba, Ontario, and British Columbia have a parental
responsibility act, other provinces and territories may soon follow. Many children
who commit acts of vandalism cannot afford to pay back their victims, so the
legislation does provide welcome compensation for these victims. Nonetheless,
because there has been only one successful application of this legislation by 200 I, it
may not be as practical or useful as politicians hoped it would be. Also, the
legislation shifts the traditional civil law burden of pro off rom the plaintiff to the
youth's parents.
Note: Most U.S. states, Australia, New Zealand, and some European countries
have some form of "parental responsibility" legislation.

Prevost (Committee of) v Vetter


(2001) 197 D.L.R. (4th) 292 British Columbia Supreme Court

14
On June 19, 1998, at around 11 P.M., the 18-year-old defendant, Desiree Vetter, and about
15 other teenagers arrived at the home of her aunt and uncle, Shari and Gregory Vetter, in
Enderby, British Columbia. The aunt and uncle had gone upstairs and were asleep when
the group arrived, but their 17-year-old son Scott was there with a few friends. He did not
see his cousin Desiree or any of her friends bring alcohol or consume it on the premises,
but Desiree admitted to drinking in the backyard. No liquor was supplied by Scott. At
about 11:30 P.M., the 17-year-old plaintiff, Adam Prevost, arrived with a group of
intoxicated young adults. By then, there were about 30 people in the Vetters' yard.
Around 1:00 A.M., the police arrived in response to neighbours' complaints. They told
Scott to quiet the group and clear everyone out. Scott woke his mother to advise her of
this; she asked if he needed help in breaking up the party. He said no, and she went back
to sleep. Evidence indicated that Shari and Gregory regularly permitted Scott to host such
parties, and they were aware that minors sometimes brought their own liquor and drank it
there. In the past, but not this evening, Shari was protective of drinking minors, offering
to ham them sleep over, taking away their cat keys, or driving them home. Everyone had
left by about 1:30 A.m. Desiree was one of the last to leave, and the plaintiff asked her
for a lift. Desiree drove with five passengers in her car. She lost control of the vehicle,
and Adam was thrown through the sunroof, leaving him with a severe brain injury.
Desiree underwent a breath test and registered a blood-alcohol level of 120.
Prevost and his parents brought an action for negligence against Desiree and her aunt
and uncle. His action succeeded, and the court awarded $2.5 million in damages, but a
new trial was ordered on appeal.
For Discussion
1. Did Shari and Gregory Vetter owe the plaintiff any duty of care and, if so, was it
breached? 1. Yes, the Vetters owed a definite duty of care to everyone who visited
their home that evening, and that duty of care was breached. In the past, Shari
Vetter had often exercised control when minors over-indulged at her home. On this
occasion, she failed to take steps to prevent intoxicated minors from driving home
that night-a serious breach.
2. Why would Shari and Gregory be held liable when they were unaware of the party and
were asleep upstairs? 2. The Vetters would be held partly liable because they"...
created a dangerous situation by permitting minors to drink at their home and drive
from it." Shari Vetter was aware of the party and the police visit, and she did
nothing.
3. Is there anything that Shari could have done as a "reasonable person" to have
prevented this accident? 3. As a "reasonable person," Shari Vetter could have gotten
up to ensure that the partygoers were sober enough to drive home. She had the
opportunity and the duty to exercise control, but she chose to go back to sleep. Had
she exercised control over the party, it is likely that she would have noticed that her
niece was intoxicated.
Based on her past behaviour, she would have tried to prevent her niece, Desiree
Vetter, from driving.

15

4. Was the accident foreseeable? Why? 4. Although this specific accident may not
have been foreseeable, the danger to minors who drive with an intoxicated driver is
foreseeable.
Knowing that minors were in the home and drinking, Shari and Gregory Vetter
should have been more proactive.
Update: This case raised the question of "social host" liability. The judge stated
that where this issue is raised, a decision must be based on the particular facts of the
case. At the time of this judgment on March 14,2001, there had been no finding of
this kind. of liability anywhere in Canada. In the United States, there had been just
a few [mdings ofliability against a "social host." In both countries, the number of
judgments finding "commercial hosts" liable had been growing. (See Occupiers'
Liability, pages 348-350.)
The Vetters appealed this judgment to the BC Court of Appeal in December 200
I, arguing that the trial judgment went beyond any similar case in Anglo-American
law. They noted that it forced hosts to become "police officers" investigating
potential drunk drivers leaving their homes. The Vetters' lawyer argued that they
did not contribute to the risk that led to the accident because they did not encourage
the minors to drink. Because of technical and procedural errors in the initial trial,
the BC Court of Appeal has ordered a new trial. As well, the issue of social host
liability has been challenged. For details, see the British Columbia Court of Appeal
civil law online link for Prevost v.

The Snail in the Bottle


Negligence was not recognized as a tort until the land mark judgment in Donaghue v.
Stevenson (1932) from England's highest court. A friend bought May Donaghue a
ginger beer in a dark bottle. Pouring the drink into a glass, Donaghue found a dead snail
in the bottle. The sight of the snail caused Donaghue nervous shock, requiring medical
treatment. She sued David Stevenson, the drink manufacturer, claiming he was
negligent. He claimed that she couldn't sue him or his company. There was no contract
between them because Donaghue's friend bought her the drink. Donaghue lost at trial
but won at appeal.
England's highest court ruled that every person has a duty to take reasonable care for
the safety of anyone who might foreseeably be harmed by the person's actions. Since
the manufacturer allowed a harmful or defective product to be sold, it was only
reasonable to hold the company responsible for consumers' safety. The manufacturer
should have been able to foresee that its products would be used by people other than
the actual purchasers.
In its judgment, the court stated: 'The rule that you are to love your neighbour
becomes in law, you must not injure your neighbour. You must take reasonable care to
avoid acts or omissions which you can reasonalbly foresee would be likely to injure
your neighbour." This ruling on duty of care marked the beginning of negligence law.

16
Even today, many lawyers claim this decision is the common law's best-known and
most important precedent. Today, anyone involved in producing consumer goods may
be held liable for negligence if consumers are injured by products when using them
routinely. This is the legacy of this landmark case.
For Discussion
1. Why would Donaghue claim the manufacturer was negligent? 1. Donaghue claimed
the manufacturer was negligent because it failed to properly clean and inspect the
ginger beer bottles. Because the shopkeeper had received the sealed bottle directly
from the manufacturer and had sold it to the consumer, the snail must have been in
the bottle at the time the drink was placed in the bottle at the manufacturer's plant.
It was the only logical explanation.
2. What must a manufacturer be able to prove to avoid liability? 2. To avoid liability,
manufacturers must be able to prove that they exercise an adequate duty and
standard of care to make their products safe for consumer use through proper infactory inspection and quality-control procedures.
3. Why do many lawyers feel this case is a most important precedent? 3. Many lawyers
feel that this case is a most important precedent because it established that a
manufacturer owes a duty of care to the consumer and to other persons who might
be harmed as a result of that manufacturer's negligence. This case gave rise to the
principle of a manufacturer's liability and marked the beginning of negligence law.
4. Explain the meaning of the quotation from the judgment. 4. This quotation means
that we all have a duty of care toward everyone with whom we come in contact to
avoid doing something, or forgetting to do something, that might cause harm or
injury to others.
Note: In one high-profile U.S. case, manufacturers' negligence was the issue that
caused two companies to part ways. In August 2001, Bridgestone-Firestone Inc.
reached a $7.5 million settlement in a $1 billion-liability lawsuit filed by a Texas
family after an accident left 39-year-old Marisa Rodriguez paralyzed and brain
damaged. The plaintiff was on a family trip in her Ford Explorer when the steel belt
and tread on the right tire tore apart, causing the vehicle to overturn three times,
crushing the roof. Rodriguez had earlier reached a $6 million settlement with Ford
for the same incident.
Firestone recalled 6.5 million tires in 2000. It had a net loss ofUS$250.3 million for the
first half of 200 1, largely owing to the US$570 million charge to pay lawsuit and
recall-related costs. Ford replaced an additional 13 million Firestones sold with its
vehicles for a total cost ofUS$3 billion. Federal officials have linked at least 270
d,eaths and over 700 injuries to accidents with Firestone and Ford Explorer sports
utility vehicles, and both companies have had to settle several lawsuits with accident
victims and their families. In May 2001, Ford and Firestone ended a 95-year
relationship because the companies continued to blame each other for the crashes

17

McQueen v. Alberta
2001 ABQB 220
Alberta Court of Queen's Bench
The 32-year-old plaintiff, David McQueen, went to Sikome Lake Provincial Park with his
three children and some friends in June 1994. Sikome Lake, near Calgary, is one of two
artificial swimming lakes in Alberta. Carrying his two- and three-year-old sons, McQueen
waded into the lake a distance of 3 to 5 m toward a skimmer platform (a water-intake
mechanism to recycle and clean the water). On reaching the platform, he put each child
on the edge of the platform and stepped up to the top. He then dove in headfirst, breaking
his neck, which rendered him a paraplegic.
The plaintiff sued the province and the city of Calgary for damages for his injuries.
Evidence at trial indicated that McQueen and his children had been at Sikome Lake on
previous occasions. Several lifeguards were on duty at the time of the accident, and No
Diving signs were posted.
McQueen testified that he did not know how deep the water was, and he thought it was
safe to dive when he looked down and couldn't see the bottom of the lake. He also
admitted that he had consumed about 750 mL of rum the night before,
had finally gone to bed at 4:30 A.M., and ;-_a, up at 7:00 A.M. with his sons. McQueen's
blood-alcohol level was 148 when he was treated in hospital for his accident. McQueen
claimed the province and the city were negligent and he sued for damages for his injuries.
His action was dismissed.
For Discussion
1. What duty of care did the defendants owe McQueen, and was there a breach of it?
Explain. 1.The defendants owed McQueen a reasonable duty of care to ensure that
the lake was safe for swimming and recreational activity. Because lifeguards were
present and No Diving signs were posted on the skimmers, there did not appear to
be any breach of that duty of care.
2. What was the cause of this accident? Was it reasonably foreseeable? 2. McQueen
himself was the cause of the accident. His impairment must have affected his
judgment, because he clearly ignored common sense. He had waded through the
water to reach the skimmer so he knew the water's depth. This accident was easily
foreseeable, and McQueen should have taken proper precautions.
3. The trial judge stated: "Although this Court is very sympathetic to Mr. McQueen in
relation to the tragedy that has befallen him and his family, there is no basis at law upon
which this Court can attribute any responsibility to the defendant for that loss." Why do
you think the action was dismissed? 3. The action was dismissed as McQueen was the
author of his own misfortune. There was no liability on the part of the City of
Calgary or the Province of Alberta. As tragic an accident as this was, it was
McQueen's fault. He owed himself a duty of care, which he did not exercise.

18
Update: McQueen appealed this judgment to the Alberta Court of Appeal where
his appeal was dismissed on March 27, 2002. For details, see McQueen v. Alberta,
2002 ABCA 31 online.
Review Your Understanding
1. Identify the key elements that a plaintiff must prove to succeed in a negligence action.
1. To succeed in a negligence action, the plaintiff must prove that the defendant
owed him or her a duty of care; that an actual loss or injury occurred; that the loss
or injury was caused by the defendant's conduct; and that the loss or injury was
foreseeable by the defendant.
2. What is an intentional tort? Provide three examples. 2. An intentional tort is an
action that causes damage or injury and is foreseeable and voluntary. Examples
include throwing a rock at someone's window, the window breaks, and the flying
glass injures someone; disobeying a "Do Not Trespass" sign while knocking over
garbage cans on someone's property; and throwing an object out of a moving
vehicle that strikes another car, thereby causing an accident.
3. Why do many potential tort actions not result in legal action? 3. Many potential tort
actions do not result in legal action because a certain amount of interference with an
individual's rights occurs daily and is considered acceptable by society,
4. Distinguish between a duty of care and a standard of care in a negligence action. 4.
A duty of care is the principle that individuals have a responsibility to ensure
that their actions do not cause harm to other individuals or their property. A
standard of care is the degree of care society expects of the defendant and all
adults who do not have physical or developmental disabilities
5. When is a minor expected to meet an adult standard of care? 5. Minors are expected
to meet an adult standard of care when they participate in adult activities such as
driving a snowmobile, car, or trail bike. The potential danger from such an activity
makes it unfair to society to apply a lower standard of care.
6. What is the connection between foreseeability and a reasonable person? 6. These two
principles are connected because liability in negligence cases is often determined by
deciding whether or not a reasonable person in similar circumstances would have
foreseen or anticipated that the injury to the victim would result from his or her
actions.
7. Why is proof of causation so important in a negligence action? 7. Causation is
extremely important in a negligence action because, without a direct connection
between the defendant's negligent act and the plaintiffs reason for action, liability
does not exist.
8. Why was "the snail in the bottle" case so important in the development of negligence

19
law? 8. The "snail in the bottle" case is very important in the development of
negligence law because it was the first case that raised the principle of a
manufacturer's liability and marked the beginning of negligence law.

Defences for Negligence (All About Law, Gibson, pp. 345-348)


Jordan v. Poirier
(2000) 231 N.B.R. (2d) 170
New Brunswick Court of Queen's Bench
In July, 1998, the plaintiff, James Jordan, and the defendant, Ulysse Poirier, each headed to
a corner store to buy cigarettes at around 11:30 P.M. Jordan was on his bike and was
wearing a brown leather jacket, jeans, and a baseball cap because it was raining heavily.
Poirier drove his parents' car. The young men went to the same corner store but did not see
each other there.
On their way home, the parties were traveling in the same direction on parallel streets.
They both stopped at the stop signs at the intersection with a through street. As Jordan
entered the intersection, Poirier made a left turn into the intersection, proceeded along the
through street, and struck Jordan, severely injuring him. Evidence indicated that Poirier's
car windows were fogged up and he had trouble seeing. It was raining so hard that he had
his wipers on full speed and his headlights on high beams. There was no evidence that
Poirier was speeding, although Jordan thought he was driving fast. Jordan was wearing
dark clothing, and his bike didn't have the required headlight or bell. There were no other
vehicles on the roadway, and there were streetlights illuminating both streets and the
intersection.
Jordan sued Poirier for damages for negligence, but the Court of Queen's Bench held
that both parties were equally negligent as either party could and should have been seen by
the other.
For Discussion
1. What arguments could the plaintiff use to establish negligence on the part of the
defendant? I. The plaintiff, Jordan, would argue that Poirier owed him a duty of care
to drive carefully and safely. That is not what occurred. Poirier's car windows were
fogged up, and he could not see traffic clearly. Given how hard it was raining, the
defendant should have been driving slower than the speed limit, and more carefully
than usual.
2. How did each of the parties contribute to the negligence for this accident? 2. Jordan
was wearing dark clothing, and his bike did not have the required equipment. As he
entered the intersection, he would have seen the high beams of Poirier's oncoming
car if he had been keeping a proper lookout. Poirier was driving with limited
visibility with his fogged windows, and he too should have seen Jordan clearly, in
spite of the heavy rain.
3. Under New Brunswick's Contributory Negligence Act, the judge found the parties

20
equally at fault. Why do you think the judge found equal fault? 3. Answers may vary.
Because a civil action is determined on the balance of probabilities and on who is
more credible, both parties in this action were at fault. Nonetheless, the judge could
not determine which of the litigants was more at fault. As the judge stated, "Based
on the evidence I find that both parties are negligent. But the evidence is not
conclusive as to who was the more negligent. I am inclined to the view that both
parties are equally responsible for the accident."
Voluntary Assumption of Risk Note: One of Canada's landmark judgments concerning
exemption clauses and waiver of liability is the Supreme Court of Canada's unanimous
judgment in Crocker v. Sundance Northwest Resorts Ltd. in 1988.
Crocker v. Sundance Northwest Resorts Ltd. [1988] 1 S.C.R. 1186 Supreme Court of
Canada
In March 1980, a tube race took place at the Sundance Resort near Thunder Bay, Ontario,
during its Spring Carnival, held to promote the resort. The prize money offered was $200.
The race consisted of two-person teams racing down a heavily mogulled hill (a hill
covered with mounds of snow) on oversized tire tubes. Videotapes made of earlier races
showed contestants being tossed about like rag dolls. Little or no skill was involved, and
the contest was mainly for the entertainment of participants and spectators.
William Crocker, 29 years old, and his partner, Rick Evoy, signed up for the race and
paid a $15 registration fee. Although they did not read the application, nor have their
attention drawn to it, the form contained a clearly marked exemption clause releasing the
resort from responsibility for "... all damage sustained ... and from any or all actions,
causes of action, claims, and demands of any nature."
When the race began, Crocker and Evoy were intoxicated because they had been
consuming their own alcoholic beverages as well as drinks bought at the bar. The resort's
manager was supervising the race and was aware of the plaintiff's intoxication when he
saw Crocker stumble and fall before the race. He suggested to Crocker that he not race,
but he did not attempt to actually prevent Crocker from doing so. Crocker and Evoy won
the first heat.
Between races, both the resort owner and the manager suggested to Crocker that he
should not race again because of his condition. Nonetheless, Crocker stated in no
uncertain terms that he intended to race. In the second heat, the plaintiff was thrown from
the tube when the tire hi t a mogul. Crocker broke his neck, rendering him a quadriplegic.
Although he had some very limited use of his arms, Crocker became entirely unable to
care for himself and would likely require hospitalization or permanent care for the rest of
his life.
Crocker brought an action against the resort for negligence causing personal injuries.
At trial in 1983, he was awarded damages of $405 275, even though he was found to be
25 percent at fault for his own injuries. Crocker appealed this decision in 1985 to the
Ontario Court of Appeal, where the award was overturned and the resort was held not
liable at all in a 2 to 1 decision. Crocker was granted leave to appeal to the Supreme
Court of Canada, and in June 1988 the Court restored the trial judgment in a 6 to 0
decision.

21
For Discussion
1. What standard of care did Sundance owe Crocker and other participants? Was that
standard met? 1. Sundance owed Crocker and other participants a reasonable
standard of care to take all necessary steps to prevent him, in his intoxicated state,
from entering the race. Answers may vary regarding whether or not Sundance met
that standard of care. Some students may feel that Crocker was a totally
irresponsible person, that he was voluntarily intoxicated during a dangerous
activity, and that what happened to him was his own fault. Other students may feel
that Sundance had a definite responsibility to prevent Crocker from participating at
all.
2. Why did the trial court and the Supreme Court not accept Sundance's defence that
Crocker's signing of the waiver exempted it from liability? Do you agree? Explain. 2.
Crocker was not bound by the exemption clause on the registration form because he
did not read it, know of its existence, or have its importance drawn to his attention.
In short, he really didn't know or appreciate its significance as a waiver of liability
3. What steps could Sundance have taken to prevent this accident? 3. To have prevented
this accident, Sundance could have taken the following steps:

. cancel the race completely or delay the start until Crocker was removed
. disqualify Crocker when it became apparent that he was drunk
. impress upon Crocker the serious risk of injury when competing while drunk
. call the police to deal with Crocker if he persisted in participating
4. Why was Crocker found 25 percent at fault for his own injuries? Do you agree?
Explain. 4. Crocker was held 25 percent at fault for his own injuries because of his
contributory negligence. He didn't exercise an adequate duty of care toward himself
in that he deliberately got drunk and still participated in the race. This contributed
to the accident that caused his serious injuries. As well, he ignored the warnings of
the resort manager, who urged him not to participate.
5. With which court decision do you agree, and why? 5. Answers will vary. Most
students will likely agree with the Supreme Court ruling stating that the resort owed
Crocker and others a duty of care to prevent a noticeably intoxicated person from
participating in a very dangerous activity. When an event like this is organized to
increase a company's profits, it must exercise a proper duty of care. In this case,
Sundance did not. Some students may agree with the Court of Appeal and not hold
the resort liable at all because Crocker brought this tragic accident upon himself. As
well, the resorts owner and manager had tried to discourage Crocker from
participating.

22

Hagerman v. Niagara Falls (City)


(1980) 29 O.R. (2d) 609 Ontario High Court
The 66-year-old plaintiff and avid hockey fan, Hagerman, and her friend Bruce Harris
attended the Niagara Falls Memorial Arena to watch a junior A hockey game. They
requested seats at the south end of the arena behind a plexiglass screen, 1.5 m high. They
usually sat there, since Hagerman preferred this view of the ice surface, and she also had
protection from flying pucks.
During the game, a player shot a puck from the blue line in the direction of the goal.
Harris saw the puck coming and thought it would hit the plexiglass, but it just cleared the
top of the screen and came toward them. He raised his arm to protect himself and leaned to
his left to protect the plaintiff, who had been distracted from the play and did not see the
puck coming toward her. The puck shattered the left lens of Hagerman's glasses, resulting
in the loss and removal of her eye.
Hagerman sued the city of Niagara Falls and others for damages. However, her action
was dismissed.
For Discussion
1. On what grounds did the plaintiff base her claim? 1. The plaintiff based her claim on
the negligence of the city and the hockey club personnel. She argued that these
parties did not provide proper protection and did not exercise an adequate standard
of care for her as a spectator.
2. What duty of care did the defendants owe the plaintiff and others attending the game?
2. The defendants owed spectators a reasonable duty of care to make the premises
reasonably safe for spectators. This involved taking care to prevent injury from
possible dangers. The defendants argued that with the 1.5-m high plexiglass screen
in place, no further duty of care was required.
3. Explain the meaning of the following statement: "Flying pucks are an inherent risk of
the-game of hockey." Does it apply to this case? Explain. 3. This statement means that
when a person goes to a hockey game, that person should realize that there is a
possible risk or danger of being hit with a puck while watching the game. It applies
to the case in question because Hagerman should have been watching the game
more closely.
4. Why did the defendants argue the defence of voluntary assumption of risk? 4. The
defendants argued voluntary assumption of risk because Hagerman was an
experienced hockey spectator and she should have been watching the game more
closely. She selected her seat because it had a better view and because she assumed
she was also protected from flying pucks. If she had been paying closer attention to
the game, this accident might have been avoided. She willingly assumed a risk when
she selected her seat.

23
5. Why do you think the action was dismissed? 5. Answers may vary. Some may feel
sorry for Hagerman's loss of an eye and may want to see her receive some
compensation. The accident could have been avoided, however, if she had paid
closer attention to the game. The court accepted the defence of voluntary
assumption of risk in dismissing the plaintiffs action.
Note: On March 16,2002, 13-year-old Brittanie Cecil was the first fan ever killed
at a National Hockey League game after she was struck by a flying puck during a
Columbus Blue Jackets-Calgary Flames hockey game. Video of the incident showed
that Espen Knutsen, the Blue Jackets player, shot the puck that flew over the high
glass at the west end of the rink, glancing off a spectator and then hitting the young
Cecil on the head. Cecil was later seen standing, being escorted from her seat, and
being transported to hospital by ambulance where she received stitches to her head.
She died on March 18 of complications arising from damage to an artery running
from the back of her brain to her spine.
Sports Illustrated devoted the cover of the March 27, 2002, issue to this tragic
accident. The magazine contains articles on the incident itself, as well as about why
the NHL should make protecting fans as much a priority as European leagues do. A
sidebar article mentions that teams and leagues are usually shielded from liability
when spectators are injured during action, but this does not mean that Cecil's
family will not be compensated. A memorial fund has been established in her
memory.
Review Your Understanding
1. What are the two best defences in a negligence action? I. The two best defences in
a negligence action are contributory negligence and voluntary assumption of risk.
2. What is contributory negligence? Explain, using an original example. 2. Contributory
negligence exists when the plaintiff has done something that contributes to the
injury or loss. For example, contributory negligence exists if a person darts across
the street without looking-just as a traffic light is changing-and is hit by a vehicle.
While the driver should have waited for the light to change completely, the
pedestrian should have waited or looked for oncoming cars.
3. How do the courts divide the fault between the parties when both are
at fault? 3. When both the litigants are at fault, the judge listens to the evidence to
determine which party is more negligent based on the credibility of the facts
presented by each party. The judge determines if the parties are equally at fault or if
one party is more at fault than the other, and then assigns a percentage, or degree, of
fault to each litigant.
4. What is voluntary assumption of risk? 4. Voluntary assumption of risk occurs when
a person should be aware of the possible risks of an action but makes a decision to
assume, or not to assume, the risk; for example, getting in a car with an impaired
driver.

24

5. Identify the two factors that the defendant must prove for the defence of voluntary
assumption of risk to succeed. 5. For the successful defence of voluntary assumption
of risk, the defendant must prove that the plaintiff clearly knew of the possible risk
of his or her actions and that the plaintiff made a choice to assume that risk.

Special Types of Negligence (All About Law, Gibson, pp.348-358)


Barnfield v. Westfair Foods Ltd. (2000) 258 A.R_ 7R3 Alberta Court of Queen's
Bench
The 77-year-old plaintiff, Eileen Barnfield, was shopping at one of the defendant's stores,
Real Canadian Superstores, in Calgary in January, 1995, where she shopped twice a week.
As she was moving from one side of the tomato bin to another, she caught her foot in the
gap between the tomato bin and a protruding bumper corner. She slipped, fell, and broke
her hip. At the time, she was wearing winter boots with good grip soles. The corner was
bolted to the floor at the base of the bin to protect the bin from being damaged by shopping
carts.
The plaintiff sued for damages for pain and suffering caused by the injury. Evidence at
trial indicated that there had been only one other reported accident in that store involving - a
customer tripping on the protective corners. Also, the plaintiff admitted that she had noticed
these corners in the past but didn't remember specifically looking for them the day of this
accident.
Although the plaintiff won her action, the court awarded her an agreed amount of
damages, reduced by 25 percent for her contributory negligence.
For Discussion
1. Did the defendant owe the plaintiff a duty of care? Explain. 1. Yes, the defendant owed
the plaintiff a duty of care. As a visitor, the plaintiff should have been assured of
reasonable safety when shopping at the store.
2. If so, how did the defendant breach the duty of care? 2. The defendant breached the duty
of care because it was reasonably foreseeable that an accident could occur. The
comer was a definite hazard, and prior safe use does not relieve the occupier of
liability for unsafe conditions. Thus, the defendant was found 75 percent liable.
3. Did the plaintiff take reasonable care for her own safety while in the store? Explain. 3.
No, the plaintiff did not take reasonable care for her own safety. Barnfield had seen
the dangerous comer on past visits, and she owed herself a duty of care to watch out
for objects in her path. Because she failed to do so on that particular day, she was
found to be contributorily negligent to the extent of 25 percent. (The actual amount
of damages awarded was not listed in the judgment.)

25
4. How would you have decided the case? Use negligence law concepts to support your
answer. 4. Answers may vary, but key arguments for the litigants appear in the
answers to Questions 1-3.
Hunt et al. v. Sutton Group Incentive Realty Inc. (2001) 196 D.L.R. (4th) 738 Ontario
Superior Court of Justice
The 44-year-old plaintiff, Linda Leigh Hunt, attended a Christmas office party organized by
her employer, a real estate company, in December 1994. The defendant, Sutton Realty, held
the party at its business establishment where there was an open, unsupervised bar. Hunt
was a part-time employee working as a receptionist, and she regularly answered the phone
while attending the party that began at 1:00 P.M. At about 4:00 P.m., her employer was so
concerned about Hunt's intoxication that he offered to call her husband to drive her home.
She refused. When the party ended around 6:30 P.m., he asked if anyone needed a ride
home and offered to provide cabs. Again, Hunt declined.
On her way home, the plaintiff stopped at PJ.'s Pub with some co-workers and had two
more drinks. Around 8:00 P.m., she turned down offers to give her a ride home and a bed
for the night.
Driving home in a bad storm with a blood-alcohol reading of 175, Hunt lost control of
her car and crashed into an oncoming truck. The crash left her with severe head injuries
causing personality changes. She was unable to work.
The plaintiff brought an action against her employer and the pub, and was awarded $1.1
million, the judge finding the plaintiff 75 percent responsible for the accident and the
defendants liable for the remaining 25 percent. However, the pub, which was uninsured,
was out of business, so Sutton Realty was fully responsible for the nearly $300 000
awarded to Hunt. Notice of appeal was filed in the Ontario Court of Appeal on March 2,
2001, by the defendant and its insurance company.
For Discussion
1. Did the defendant pub owe the plaintiff a duty of care? Explain. 1. As commercial
hosts, the pub owners and staff should have noted Hunt's impairment and refused to
serve her any drinks. The staff should have foreseen the consequences of allowing
the plaintiff to drive home in a storm when she was impaired. The pub personnel
did not exercise an adequate duty of care toward Hunt.
2. Why was the plaintiff found 75 percent contributorily negligent? 2. Hunt was found
75 percent at fault because her excessive alcohol consumption was self-induced. She
should have foreseen that getting drunk and then driving home in a winter storm
was negligent. Her employer and friends had offered Hunt several options, but she
refused all of them. She was therefore found to be at fault to a significant extent.
3. In his ruling, the trial judge stated: "I find that the defendant Sutton not only owed its
employee an obligation to take reasonable care to avoid acts or omissions which it could
reasonably have foreseen would likely cause her some harm.... He ought to have
anticipated the possible harm that could have happened to her and ... taken positive steps

26
to prevent her from driving home." What did the judge feel Hunt's employer should have
done? 3. The trial judge did not feel that Hunt's employer had exercised an adequate
duty of care. He should have personally intervened to prevent Hunt from driving.
He could have taken her keys away or called a cab and physically forced her into it.
The judge felt that Hunt would have had no choice but to accept. Failing all of this,
the employer should have called the police. Given Hunt's degree of intoxication at
the office party, the employer ought to have foreseen the danger to Hunt of driving
home. Because Hunt's employer permitted an "open and unsupervised bar," he had
a significant responsibility toward her and other employees for their safety
4. What arguments do you think will be made by the defendant on appeal? 4. Answers
may vary, but the fact that the defendant and its insurance company have appealed
this judgment suggests they believe they should not have been held liable. Hunt was
given ample opportunities to make better decisions about her transportation that
night, but she ignored them all. One could argue that she was the author of her own
misfortune and should be found completely negligent. As an adult, she should have
known better and owed herself a considerable duty of care.
Update: The appeal of this case was heard by three justices in the Ontario Court
of Appeal in May 2002. Three weeks into the original trial, and just before the
testimony of the last witness, the trial judge had discharged the civil jury, after
accepting arguments from Hunt's lawyer that the issues were too complex for
ordinary people and that the legal principles involved were too complicated for
juries to understand.
At the appeal, lawyers for the Sutton Group and its insurance company argued
that the original trial judge had abused his discretion by refusing to allow a jury to
determine liability, a question involving both common sense and community values.
"The right of a jury trial is a substantive right and should not be interfered with,"
stated lawyer Earl Cherniak. Sutton admitted it owed a duty of care to Hunt as her
employer, but felt a jury must determine if the firm lived up to the required
standard of care. Because Hunt had had more to drink after leaving the office party,
then her employer should not be held responsible for her actions, because the chain
of causation (page 342) had been broken. The lawyer argued that the trial decision
should be overturned or a new trial ordered with a jury.
Daniel Dooley, Linda Hunt's lawyer, argued that the judge was correct in
dismissing the jury because the technical evidence, and especially the toxicology
report about Hunt's impairment, was too complex for a jury to consider. Also, the
issue of an employer's responsibility when alcohol is served is too important to leave
to a jury. Finally, Dooley noted a climate of public hostility fuelled by some of the
media-Hunt herself had been ridiculed on the CBC program, Royal Canadian Air
Farce. The court reserved judgment on this matter until a later date.
Note: For a related case, see Jacobsen v. Nike Canada Ltd., (1996) BC Supreme
Court 133 D.L.R. (4th) 377 in which Michael Jacobsen, a 19-year-old warehouse
employee, was assigned to build a marketing display at a trade show. The Nike
project manager provided the work crew with beer during its dinner break, and
Jacobsen consumed about 10 beers. He also had a few more beers at a pub after
work with a co-worker. He drove home in the early morning and was involved in a

27
serious car accident that left him a quadriplegic. The court held that the employer
had a duty of care to monitor employees' alcohol consumption and found Nike
negligent for having failed to do so. The court apportioned 75 percent of the liability
to the employer and awarded a total of $2.7 million in damages.
Posca v. Sotto (1999) 43 O.R. (3d) 42C Ontario Court of Appeal
On May 26, 1989, the plaintiff, Rosario Posca, went to the emergency department of Peel
Memorial Hospital where he was treated for a scalp laceration by the defendant, Dr. Alain
Sotto. Sotto was an independent physician and not a hospital employee.
Posca was treated on an operating table without side rails. After his wound was cleaned
and sutured, he sat up on his own with his legs dangling over the side of the table. He
complained of dizziness but declined Dr. Sotto's advice to lie down, saying he felt better
sitting up. The doctor then told the plaintiff, "Just sit there, don't move, I'll be back in a
couple of minutes" and then left the room, leaving Posca unattended. In the doctor's
absence, Posca fell off the operating table and suffered a fractured nose, damaged teeth, and
lacerations to his face.
The plaintiff brought an action for negligence against Dr. Sotto and the hospital. The
trial judge dismissed the action against the hospital but found for the plaintiff against the
doctor. Posca was awarded nearly $40 000 in August 1997. This represented $30 000 in
general damages, future dental care of $9500, and special damages of $137.77. The defendant doctor appealed this judgment, and the Court of Appeal dismissed his appeal in April
1999.
For Discussion
1. How did the doctor breach the duty of care owed to the plaintiff? Explain. 1. The doctor
breached the duty of care when he failed to insist that the plaintifflie down, the
acknowledged treatment for dizziness. He failed to do what a prudent and diligent
doctor would have done in similar circumstances.
2. What should the doctor have done regarding his patient? List at least three options. 2.
Several options were available to the doctor to fulfill his duty of care:
. He could have called a nurse for assistance when he left the room for a couple of
minutes.
. He could have warned the plaintiff of the danger of falling off the table and
injuring himself.
. He could have waited longer to check for signs of another fainting episode before
leaving the room.
3. Why was the action against the hospital dismissed? 3. The action against the hospital
was dismissed because a hospital cannot be held vicariously responsible for the
conduct of an independent physician. Dr. Sotto was not an employee of the Peel
Memorial Hospital, and so the hospital was not held liable.

28
4. Why do you think the Court of Appeal dismissed the doctor's appeal? 4. The Court of
Appeal dismissed the doctor's appeal because there was no error in law by the trial
judge. The cause of the accident was totally Dr. Sotto' s negligence.

The Need for Informed Consent


Doctors have no right to touch any patient, no matter how sick or close to death, without
that person's consent. Medical emergencies are exceptions to this principle, but the
situation must be life threatening. In all but these cases, the consent must be informed.
Exactly what must physicians tell patients? This issue was settled with the landmark
Supreme Court of Canada judgment in Reibl v. Hughes (1984). See case below. Reibl
accepted Dr. Hughes's advice about the need for surgery, but the doctor neglected to tell his
patient that there was a slight risk of stroke or death during the operation. Although the
doctor performed the operation with proper care and competence, Reibl suffered a massive
stroke and was left with partial paralysis. Reibl sued for damages and was awarded $225
000, a judgment later upheld by the Supreme Court of Canada.
Since that judgment, doctors must fully disclose any significant or material risks
involved in the proposed treatment. Doctors must inform patients of known side effects,
length o+- recovery time, recovery rates, and expected quality of life after surgery. The
patient has to be sufficiently informed about all risks to make a reasoned decision about
whether or not to submit to the treatment. Only then can the patient give informed consent
to the doctor for the proposed treatment.
For Discussion
1. Why did the courts find the defendant doctor at fault? 1. The courts found the
defendant doctor at fault because he had not exercised an adequate duty of care to
inform Reibl of the gravity, nature, and extent of the risks of the operation. Reibl
needed this information in order to give informed consent.
2. Does this decision mean that doctors must tell patients even obvious information? For
example, an appendectomy will probably result in some pain and leave a scar. Explain. 2.
Answers may vary. Given the excerpt from the Supreme Court of Canada judgment
(see Question 3), only material risks need be disclosed. Obvious information need
not be shared with patients to acquire informed consent. In this particular case, if
all of the risks had been explained to Reibl, it is likely that he, as a reasonable
person, might have delayed the surgery .
3. The Supreme Court judgment stated: "Even if a certain risk is only a mere possibility
that ordinarily need not be disclosed, if its occurrence carries serious consequences it
should be regarded as a material risk and the patient informed of it." What risk should have
been disclosed in the Reibl v. Hughes case? Why? 3. Dr. Hughes should have told Reibl
that there was a slight chance of death and stroke during surgery. This is material

29
information that should have been disclosed so that Reibl could have given informed
consent to the procedure. Dr. Hughes gave Reibl the impression that surgery didn't
carry any risks. This excerpt from the Supreme Court indicates that doctors must
inform patients of all of the serious consequences of any surgery or procedures so
that they may give an informed consent. This is the standard of care.
Reihl v. Hughes [1980] 2 S.C.R. 880 Supreme Court of Canada
In 1970, the plaintiff, Edward Reibl, then 44 years of age, was told by his doctor, Robert
Hughes, that the cause of his high blood pressure and headaches was a partially plugged
artery in his neck. The artery allowed only 10 to 15 percent of his blood to reach his
brain. The doctor indicated that this problem posed aID percent risk of stroke every year
it remained untreated, and advised his patient to have surgery. Hughes failed, however, to
tell Reibl that the surgery carried a 4 percent risk of death and a 10 percent risk of stroke
either during the operation or soon after.
Reibl accepted the doctor's advice and consented to having the operation done right
away, although he had the impression that there was no rush. The surgery could have
been delayed until after Reibl' s retirement pension income was assured, 18 months later.
Although the doctor performed the operation with proper care and competence, Reibl
suffered a massive stroke soon afterward and was left with a paralyzed right arm and a
lame leg. Because of his paralysis, Reibl could no longer continue in his job and was
ineligible for certain disability benefits from his employer.
Reibl took legal action in the Supreme Court of Ontario in 1977. The trial judge
found the defendant surgeon liable, awarding Reibl damages of $225 000. Hughes
appealed this decision to the Ontario Court of Appeal, where a 2 to 1 decision ordered a
new trial. This judgment was appealed to the Supreme Court of Canada where, in a
unanimous decision, the trial judgment was restored.
For Discussion
1. Why did the courts find the defendant doctor liable? 1. The courts found the
defendant doctor at fault because he had not exercised an adequate duty of care to
inform Reibl of the gravity, nature, and extent of the risks of the operation. Reibl
needed this information in order to give informed consent.
2. Did the patient give informed consent? Explain. 2. Answers may vary. Given the
excerpt from the Supreme Court of Canada judgment (see Question 3), only
material risks need be disclosed. Obvious information need not be shared with
patients to acquire informed consent. In this particular case, if all of the risks had
been explained to Reibl, it is likely that he, as a reasonable person, might have
delayed the surgery.
3. What do you think a reasonable person in Reibl's position would have decided to do if
all the risks had been fully explained? 3. Dr. Hughes should have told Reibl that there
was a slight chance of death and stroke during surgery. This is material information
that should have been disclosed so that Reibl could have given informed consent to

30
the procedure. Dr. Hughes gave Reibl the impression that surgery didn't carry any
risks. This excerpt from the Supreme Court indicates that doctors must inform
patients of all of the serious consequences of any surgery or procedures so that they
may give an informed consent. This is the standard of care.
4. What is the significance of the Supreme Court of Canada judgment?
5. The Supreme Court judgment stated, "Even if a certain risk is only a mere possibility
that ordinarily need not be disclosed, if its occurrence carries serious consequence, it
should be regarded as a material risk and the patient informed of it." Explain the meaning
of this

Review Your Understanding


1. Who is an occupier, and what duty of care does this person have for persons entering his
or her property? 1. An occupier is a person who has supervision and control over
property on which an injury occurs and includes both property owners and persons
renting a house, an apartment, or other dwelling. As a reasonable person, an
occupier owes a reasonable duty of care to keep the premises safe for all visitors,
regardless of who they are and why they are there.
2. Name the three common-law classes of persons who may enter another's property.
Outline the duty of care that occupiers owe to each class. 2. The three common-law
classes of persons who may enter another's property and the required duty of care
are as follows:
. Invitees (people on a property for a purpose other than a social visit) are owed the
highest duty of care because the occupier and invitee will likely do business so that
each of them obtains some material benefit from their meeting. The occupier is
responsible for warning invitees about unusual dangers that the occupier knows
about or ought to know about.
. Licensees are owed a lesser duty of care when they enter property with the implied
permission of the occupier, usually as guests, because no economic benefit is
expected from the visit. The occupier must warn licensees of any known concealed
or unusual dangers. No liability exists for dangers unknown to the occupier.
. Trespassers are owed the least duty of care because they are on the premises
without permission. Once an occupier is aware of a trespasser's presence, however,
occupiers must exercise a reasonable standard of care and warn of unusual dangers
of which they are aware.
3. What are occupiers required to do to prevent children from being harmed around an
allurement? 3. To prevent children from being injured by allurements, occupiers
must take reasonable precautions to prevent any accident that could have been
reasonably foreseen as arising from the allurement, such as a swimming pool or a
construction site. This includes fencing off properties such as pools, and marking

31
and barricading other dangerous premises.
4. How does some provincial legislation on occupiers' liability abolish the old common
law? 4. Some provincial or territorial legislation has abolished the distinction
between invitees and licensees because the distinction is not often precise. As a
result, occupiers owe all persons coming onto their property a reasonable duty of
care to make the premises safe.
5. Why does the burden of proof shift to the defendant in motor vehicle cases? 5. The
burden of proof shifts to the defendant in motor vehicle cases, because the plaintiff
would be unable to prove his or her version of the events without examination of the
defendant's side. After the plaintiff proves that he or she has been involved in an
accident, the defendant then must prove that the loss or injury was not the result of
the defendant's negligence.
6. What trends have developed in judgments regarding passengers who fail to wear seat
belts? 6. Answers may vary. More judges are tending to rule that contributory
negligence exists when a person fails to wear a seat belt. In these cases, damages are
reduced by as much as 40 percent, even when the accident is caused by the driver of
another vehicle.
7. What is the principle of vicarious liability? How does it relate to negligence and tort law? 7.
Vicarious liability is the principle of holding a blameless person responsible for the
misconduct of others. This happens in tort law when the person is assumed to have a
duty of care to a third party through another individual.
8. Identify five types of professionals, and give an example of negligence for each. 8.
Examples include the following:
. A dentist pulls the wrong tooth or performs a procedure incorrectly.
. A surgeon performs an unnecessary operation or removes a healthy organ.
. An architect designs a building without following industry standards.
. An engineer fails to install an operating system properly.
. An accountant ignores changes in tax law or completes returns without
informing clients.
. A lawyer fails to inform clients of their options concerning a trial or other legal
matter.
9. What is informed consent and why is it so important? 9. Informed consent is the
patient's approval to undergo a procedure after the doctor has completely explained
all the patient's options and the risks that are associated with each. If informed
consent is not present, the doctor may be liable for a civil action for negligence.
10. Distinguish between medical negligence and medical assault and battery. 10. Medical
negligence occurs when a doctor does not fully inform a patient about all the risks
involved so that the patient can give an informed consent. Medical assault and
battery may occur if a doctor treats a patient without any consent at all, or

32
treatment goes beyond that to which consent was given.

Trespass to Persons and Land (All About Law, Gibson, pp. 358-364)
Arthur v. Wechlin
[2000] B.C.W.L.D. 1150
British Columbia Supreme Court
The 38-year-old plaintiff and longtime Elton John fan Shelley Arthur and a friend
attended an Elton John concert at Vancouver's Pacific Coliseum in September 1995.
The 43-year-old defendant, Jerry Wechlin, his girlfriend, and two friends were seated
behind them. During a ballad sung by Mr. John, the defendant yelled out insults and
profanity at the performer. The plaintiff asked the defendant to take his party to the
lobby so she and others could enjoy the concert.
Although no smoking was allowed in the arena, Arthur had a lit cigarette in her
hand. When Wechlin told Arthur that smoking was not allowed, she agreed to put it out
if he stopped yelling and disrupting the concert. As she dropped the cigarette, Wechlin
thought she was throwing the butt at him. He grabbed her wrist, held it for a couple of
seconds, lifted her out of her seat, and turned her around, causing- immediate pain.
Wechlin believed that Arthur was trying to burn him with her cigarette.
Arthur brought an action for damages. Evidence at trial indicated that Arthur's
shoulder and neck were seriously injured by this incident. Her ability to work as a court
reporter was severely restricted. The trial judge awarded her nearly $500000, mainly for
lost future income because Arthur was one of the few people in her community skilled
in this field.
For Discussion
1. On what grounds would the plaintiff base her action? 1. Arthur based her action on
the assault and battery caused by the defendant.
2. What defence or explanation would Wechlin use to justify his actions? 2. Wechlin
argued that he thought the plaintiff was going to bum him with her cigarette and
that he was acting in self-defence to protect himself.
3. On the balance of probabilities, which version of this incident is more credible? Explain.
3. On the balance of probabilities, the court found Arthur's explanation much more
credible. Even if self-defence was accepted as a valid argument, the force Wechlin
used was excessive and unreasonable, as evidenced by Arthur's Injures.
4. What is your opinion of the trial judgment? Explain. 4. Answers may vary.
Update: The defendant, Wechlin, appealed this decision to the British
Columbia Court of Appeal. His appeal was dismissed on April 10th 2002, in a 3 to 0
judgment.

33
You Be the Judge
In Malette v. Shulma i (1990), the Ontario Court of Appeal ruled that the defendant doctor
committed a battery on the plaintiff. Georgette Malette, a Jehovah's Witness, carried a
signed card refusing blood transfusions. Shulman ignored the card and gave Malette a
blood transfusion to save her life. The plaintiff was awarded $20 000.
Why was the doctor liable for battery? Dr. Shulman was held liable for battery because
he performed emergency surgery without the patient's consent, and he ignored her
unqualified wishes on the card in her purse.
Should the plaintiff be able to sue the doctor when his actions saved her life? Discuss with
a partner. The Court of Appeal stated that Dr. Shulman was not free to disregard a
patient's advance instructions under any circumstances. To transfuse blood violated
Malette's right to control her own body and showed disrespect for her religious
beliefs, even though Shulman was faced with a medical emergency in which a blood
transfusion was standard procedure. Some students may feel that the plaintiff
should be grateful for being alive and should have set aside her religious beliefs. For
more details, see Malette v. Shulman, (1990) 72 O.R. (2d) 417 Ontario Court of
Appeal.
Note: In April 2002, an Alberta Court of Queen's Bench justice ruled that blood
transfusions were an essential treatment for a 16-year-old girl, B.H., in her battle
against leukemia. In February, the court gave the Alberta government temporary
custody of the girl and ordered her to undergo blood transfusions as part of her
treatment. The girl and her family are Jehovah's Witnesses. The girl's father
consented to the blood transfusions, but his wife and two daughters supported
B.H.'s wishes. Doctors at Alberta Children's Hospital say that B.H. has a 40 to 50
percent chance of survival with the treatment but that she will die if she doesn't
receive blood products. B.H. and her lawyer are seeking leave to appeal to the
Supreme Court of Canada.
Assault and battery are usually tried together, since assault often occurs before or
with battery. In fact, the distinction between these two torts is disappearing. Most cases
based on assault include battery. The damages awarded in such actions compensate the
victim for harm or loss. If an assault was extremely vicious or committed without
reason, the court may also award punitive damages.

Defences for Trespass (All About Law, p.364-368)


Review Your Understanding
1. Identify six defences for trespass.
2. When is consent not a valid defence in a contact sport?
3. When is self-defence a valid defence against battery?
4. When may defence of another person be used?
5. Who may use the defence of legal authority, and in what situations?
6. Explain necessity as a defence against trespass to land.

34

Nonpecuniary Damages: T h e " T r i l o g y "


In 1978, the Supreme Court of Canada established an upper limit on nonpecuniary
damages when it delivered decisions in three cases:
Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229Thorton v: Board o f
School Trustees o f School District No. 5 7 I Prince George, [1978] 2 S.C.R. 267
Teno v Arnold, [1978] 2 S.C.R. 287
On the date of the accident, Andrews was a twenty-one-year-old apprentice employed by the
Canadian National Railways. He was injured in a traffic accident involving a vehicle
driven by a Grand & Toy employee. Fifteen year-old Gary Thorton was participating in a
gymnastics class at his high school when he fractured his spinal cord while using the
springboard and box horse. Diane Teno was struck by an oncoming car when she ran
across the street to meet the ice-cream truck. She was only four and a half years old.
In these cases, the plaintiffs had incurred such severe injuries that they were left
with little more than life itself. All three plaintiffs suffered quadriplegia. In the
"Trilogy" cases, the Supreme Court set a clear upper limit to the amount that can be
awarded for non-pecuniary damages. In his opinion in Andrews v. Grand & Toy Alberta
Ltd., Mr. Justice Dickson said:
I would adopt as the appropriate award in the case of a young adult quadriplegic
like Andrews the amount of $100,000. Save in exceptional circumstances, this
should be regarded as an upper limit of nonpecuniary loss in cases of this nature.
This upper limit was based on the grounds that damage awards should serve a
useful function; neither high compensation for pain and suffering nor punitive awards
help the plaintiff, but they do unfairly burden the defendant. In Teno v. Arnold, the
Court said:
The real difficulty is that an award of non-pecuniarv damages cannot be
"compensation." There is simply no equation between paralyzed limbs and/or injured
brain and dollars. The award is not reparative: there can be no restoration of the lost
function. Explain the Supreme Courts position regarding Non-pecuniary damages and
the purpose of placing a ceiling on non-pecuniary damages.
1. Non-pecuniary damages cannot be considered "compensation" since it is not
possible to actually calculate pain and suffering from loss of life or severe injl1ly.
Non-pecuniary damages do not really satisfy the plaintiff, but they can be an
enormous financial strain on the defendant. The Supreme Court of Canada
considers the defendant's burden to be unfair.
2. Without a ceiling, defendants might be unfairly burdened by damages that could
escalate to the "dramatically high levels" awarded in the United States.

P r e v o s t v . Vet t e r ( 2 0 0 1 ) , B.C.C.A. 202


Eighteen-year-old Desiree Vetter arrived with several friends at the home of her
aunt and uncle, Gregory and Shari Vetter. On past occasions, the Vetters had
supervised gatherings, discouraged the use of alcohol by minors, and looked after
anyone who appeared to be intoxicated. On the night in question, the Vetters went

35
to sleep before Desiree arrived. The Vetters' 17-year-old son, Scott, was present
with some friends.
Desiree and her friends brought their own alcohol, which they consumed on the
Vetters' property. After a complaint about noise that led to a visit from the police,
Scott woke his mother and told her the police wanted everybody to leave. His
mother asked if he needed help. He said he could handle it, and his mother went
back to sleep.
Adam Prevost and six other teenage passengers left with Desiree in her car.
Desiree was intoxicated and, while driving, lost control of the car. Adam suf fered
severe injuries and sued Desiree and the Vetters.
The Vetters applied to have the claim against them dismissed without a trial on
the basis that it did not raise a cause of action known to Canadian law. They
argued that as social hosts, they did not owe the plaintiff a duty of care to pre vent
him from coming to harm.
The British Columbia Supreme Court refused to dismiss the case without a
trial. It found that minors often brought alcohol to the Vetters' property and
consumed it there. The court found that the Vetters' past actions had "established a
`paternalistic relationship' with intoxicated teenagers," and they had "created a
dangerous situation by permitting minors to drink at their home and drive from it:"
Further, "the Vetters recognized they had a duty to prevent minors from the
potential danger of driving under the influence of al cohol and to protect those who
might drive with them." Consequently, the Vetters owed a duty of care to Adam
Prevost. According to the Court, they had a duty to exercise control, and it was
foreseeable that harm could result from their ~failure to do so. Because Shari
Vetter did not exercise any control after she was woken, she breached that duty.
The Vetters appealed.
The Court of Appeal found that it was not possible for the summary trial judge
to determine the existence of a duty of care, the appropriate standard of care, or
breach of the standard of care without first establishing facts im portant to the issue
of causation, i.e., the issue of impairment. Establishing these facts was beyond his
jurisdiction. The appeal was allowed, and a new trial was ordered.
l. Why did the Vetters believe that the case should be dismissed ? 1. The Vetters
applied to have the case dismissed without a trial on the basis that there is no
liability imposed on social hosts in Canadian law. They argued that, as social hosts,
they did not owe Adam Prevost a duty of care to prevent him from injury.
2. Why did the British Columbia Supreme Court rule that the Vetters owed a duty to
Adam Prevost? 2. The British Columbia Supreme Court ruled that the Vetters owed
a duty of care to Prevost, since the Vetters claimed that they had supervised
proceedings on past occasions" discouraged the use of alcohol by minors, and cared
for intoxicated guests. By their actions, the Vetters themselves recognized that they
had a duty of care to prevent minors from the potential dangers of driving while
under the influence of alcohol and to protect those (such as Prevost) who might ride
with them.

36
3. Explain why causation would have to be established before the existence of a
duty of care and the appropriate standard of care could be determined.
3. In order to determine who owed the plaintiff a duty of care and what the
appropriate standard of care would be, causation would first have to be established.
For example, it would have to be established that Desiree Vetter was impaired and
that her impairment caused the accident that led to Prevosts injuries. Establishing
these facts were beyond the jurisdiction of the British Columbia Supreme Court.

F.S.M. v. Clarke, [1999] B.C.J. No. 1973 (B.C.S.C.)


When he was eight years old, F.S.M. was sent to St. George's Indian Residential School
in British Columbia. The federal government funded the school, while members of the
Anglican Church instructed the students in various subjects. Residence at the school was
mandatory for children from Aboriginal communities. Prior to F.S.M.'s entry to the
school, his mother signed a form that gave the government guardianship of F.S.M. until
his return.
Between 1970 and 1973, a dormitory supervisor, Derek Clarke, sexually assaulted
several students repeatedly, including F.S.M. In 1973, word of Clarke's activities
reached the principal of the school. F.S.M. summoned to the principal's office and asked
about Clarke's behaviour. F.S.M. hinted at sexual assaults, but was too frightened to
give details. The principal subsequently informed Clarke that he could either resign or
"the police would call." The government (Department of Indian Affairs) was informed
of Clarke's resignation, but it was not informed about Clarke's sexual misconduct.
Eventually, Clarke was charged with sexual assault; he pleaded guilty and was
imprisoned. In 1998, F.S.M. sued the Anglican Church and the Canadian government
for negligence. The British Columbia Supreme Court held that both the Canadian
government and the Anglican Church were Clarke's employers, and both were
vicariously liable for his actions. The Court ruled that the government and the Church
owed F.S.M. a duty of care because they assumed a parental role in caring for F.S.M.
while he was in their charge. The Court found both the government and the Church in
breach of this duty of care because they put Clarke in a position where he could commit
sexual assaults; then they failed to adequately supervise him to ensure that these
assaults did not occur.
1. Why did the government and the Church owe F.S.M. a duty of care? The
government and the Church owed FS.M. a duty of care because they assumed
a parental role in caring for FS.M. while he was in their charge.
2. What standard of care did the defendants have to meet? What could they have
done to meet that standard? The standard of care would be equivalent to being in
loco parentis. It would be expected that the government and the Church would
ensure that employees (such as Clarke) would be adequately informed and
supervised to ensure that such assaults did not occur.

Cempel v. Harrison Hot Springs Hotel Ltd., [199s16 W.WR. 233 (B.C.C.A.)

37

One night in May 1993, 16-year-old Cassandra Cempel and her friends went camping
at Harrison Hot Springs, near Chilliwack, British Columbia. It was late when they
arrived, but they decided to go to the hot pool. Instead, by mistake they went to the
source pool, which contained scalding hot water. The pool was obviously closed, but
Cassandra started to climb over a fence that surrounded the pool. As she was climbing
the fence, part of it gave way and bent over. Cassandra fell into the water, which was
60C. She was badly burned and spent 51 days in hospital. Cassandra sued Harrison
Hot Springs Hotel Ltd. for damages.
The trial court found that the fencing around the source pool was inadequate, and
the hotel was in breach of its duty to take care that persons on the premises were
reasonably safe. It also found the plaintiff's actions "foolhardy and imprudent," and
that she was "primarily the author of her own misfortune." The court apportioned fault
75 percent to the plaintiff and 25 percent to the hotel. The plain tiff appealed on the
basis that she could not have anticipated the kind of damage she suffered and that the
trial court had attributed too much fault to the plaintiff and too little to the defendant.
The British Columbia Court of Appeal agreed with the trial judge as to the law, but
altered the apportionment of damages. In the opinion of the Court, apportionment
should be assessed on the extent of departure from the respective standards of care.
The court apportioned 60 percent to the defendant and 40 percent to the plaintiff.
1.Was Cempel an invitee or a trespasser? Should this determination have any bearing on
the duty of care owed and the damages awarded? Explain. 1. Cassandra Cempel was an
invitee to the camping facilities, but she was a trespasser to the source pool where
the injuries occurred (e.g., you're invited into the bank, but you must get permission
to enter the vault). Generally, a lower standard of care is owed to trespassers. Still,
occupiers of a property have a duty to maintain their property so that anyone
entering the premises is not injured-including trespassers.
Since the fence surrounding the pool was of an inadequate safety standard and
there appeared to be an absence of signs warning that the extremely hot
temperatures of the pool were dangerous (the plaintiff believed the temperature of
the source pool was like a hot tub, or approximately 40C), the defendants would
still be liable for a significant portion of the damages.
2. Do you agree that both plaintiff and defendant should share liability? Support your
view. 2. In the final judgment, the court apportioned 60 percent to the defendant
and 40 percent to the plaintiff. Student responses to this apportionment should
consider the following facts and circumstances of the case:

The fence surrounding the source pool was of an inadequate safety standard.
There was no warning regarding the extremely hot temperature of the source
pool.
The plaintiff knowingly entered the source pool premises without permission
(climbed over the fence). (One judge concluded that she was "the author of
her own misfortune.")

38

The plaintiff could not have anticipated the kind of damages she would suffer
because she did not know the temperature of the source pool (she believed
the temperature to be 40C, when in fact it was 60C).

3.Explain the significance of the altered apportionment regarding the "the extent of
departure from the respective standards of care." 3. The degree of liability to the
defendant was altered (25 percent increased to 60 percent apportionment) to the
extent to which the standard of care was not met. For instance, the fence
surrounding the pool was of an inadequate safety standard. There was no warning
of the dangers regarding the hot temperature of the source pool. In addition, the
defendant would have known the temperature of the pool and should have
reasonably anticipated that anyone entering the pool vvould be injured by the
extremely hot temperatures.
Crocker v. Sundance Northwest Resorts, [1988] 1. S.C.R. 1186
BACKGROUND As a promotion for its ski resort, Sundance Northwest Resorts
hosted a competition in which a two-person team raced down a steep hill in an inner
tube. The prize was $200. Mr. Crocker paid the $15 entrance fee and signed the
entry form, without reading it. Consequently, he did not know the form contained a
waiver clause.
Crocker was visibly drunk at the beginning of the first race. At the start of the
second race, the owner of Sundance asked Crocker if he was in any condition to
compete but did nothing to stop him. The resort manager also suggested that he not
continue but took no further steps to restrict him when he insisted on competing.
During the second race, Crocker suffered a serious neck injury and was ren dered
quadriplegic.
Crocker sued the ski resort for negligence. At trial, he was successful in his suit, but
the Court applied the defence of contributory negligence. Crocker was awarded 75
percent of his damages. He appealed. The Ontario Court of Appeal overturned the
trial judge's decision and found that the resort was not liable at all. Crocker appealed
this decision to the Supreme Court of Canada.
LEGAL QUESTION: Did Sundance owe a duty of care to Mr. Crocker? If a duty
existed, what standard of care was required and was the standard met?
DECISION The Supreme Court found that the plaintiff's injuries were "clearly
foreseeable in this case,' and the resort failed to take reasonable steps to prevent Mr.
Crocker from competing in the race that caused his injuries. By allowing Crocker to
participate in the event, the resort breached the duty of care it owed him and was
therefore liable for damages that resulted from its negligence. However, the Court

39
did uphold the finding that Crocker was 25 percent liable due to contributory
negligence.
LEGAL SIGNIFICANCE The Court ruled that when a resort organizes an event to
enhance its profits, it has a duty of care to prevent a visibly intoxicated person from
competing in a dangerous competition. Crocker's signing of the entry form
containing the waiver did not release the resort from its duty of care because Crocker's
attention had not been drawn to the waiver; in fact, he had not read it and had no idea it
existed.
ANALYSIS
1.What did Mr. Crocker have to show in order to prove the resort was negligent? 1. To
prove the resort was negligent, Mr. Crocker had to prove
Sundance owed the plaintiff a duty of care
Sundance breached the standard of care
the actions of the defendant caused the injuries
2. What are three possible defences Sundance could argue in this case? 2. Possible
defences:
Sundance did not owe a duty of care.
Voluntary assumption of risk
Contributory negligence
3. Why do you think Crocker appealed the trial judge's decision? How did the trial judge's
decision differ from that of the Supreme Court of Canada? 3. Mr. Crocker appealed the
case with the expectation that he would be awarded 100 percent damages to be paid
by Sundance by the appeal court. Both the trial judge and the Supreme Court
awarded 75 percent damages to be paid by Sundance and 25 percent by Mr.
Crocker.
4. If Crocker's intoxication had not been evident, would Sundance Resorts still have been
liable for his injuries? Explain. 4. If Mr. Crocker's intoxication had not been evident,
and if the resort had warned Mr. Crocker of the potential risks, and if Mr. Crocker
had carefully read and signed the waiver form releasing the resort from its duty of
care, and if the resort had not breached the expected standard of care, then
Sundance Northwest Resorts would not have been liable for his injuries (assuming
the defence of voluntary assumption of risk was successful).

Ross v. Beutel, [2001] N.B.C.A. 62 (Law in Action, Blair, p.407)


BACKGROUND In 1993, the New Brunswick Teachers' Association held workshops on
Jewish history and culture. The Association invited the political cartoonist Josh Beutel to
make a presentation. In his presentation, called "An Editorial Cartoonist Confronts
Holocaust Issues," Beutel displayed political cartoons dealing with racism and
stereotypes. He also discussed freedom of the press versus hate literature. A number of

40
Beutel's cartoons depicted Malcolm Ross, a former teacher in New Brunswick who was
known for his anti-Semitic and racist opinions. Ross's books and articles alleged that an
international Jewish conspiracy existed to take over the Christian world. Because of his
publications, Ross was removed from his teaching position, although he remained a
member of the Association.
Ross attended Beutel's presentation. One cartoon Beutel showed was of Ross holding
two of his books. To the left of Ross was the name "Goebbels," a German Nazi leader
who was Hitler's minister of propaganda. The setting of the cartoon was a concentration
camp showing a group of German soldiers with someone who looked like Hitler. The
word Conspiracy was prominently displayed, and the caption asked, "What's the difference between the views of ... Josef Goebbels and Malcolm Ross?" Beutel also read a
passage from one of Ross's books about the theory of a Jewish conspiracy. Ross sued
Beutel for defamation.
LEGAL QUESTION Was Beutel's cartoon fair comment about Ross?
/
DECISION The Court of Queen's Bench of New Brunswick found that Beutel had
defamed Ross in the cartoon. The judge found that a reasonable listener and viewer of the
commentary and cartoon would regard Ross as a Nazi who advocated the extermination
of the Jewish people. Ross was awarded $7500 in damages. Beutel appealed the decision.
The New Brunswick Court of Appeal accepted Beutel's defence of fair comment and
allowed the appeal. The Court of Appeals found that Beutel's cartoon was based on his
opinion that Ross and Goebbels had similar beliefs about a Jewish conspiracy and that a
reasonable person would not take the cartoon to mean that Ross was a Nazi who
advocated the extermination of Jewish people. While the cartoon was still defamatory, it
was a fair comment in that Beutel's opinion was honest, not malicious. According to the
Court, "... [cartoons] by their very nature, contain statements of opinion rather than
statements of fact. Relying, as they do, on the devices of allegory, caricature and analogy,
cartoons contain subjective expressions of opinion."
LEGAL SIGNIFICANCE This decision became a precedent for subsequent defamation
cases involving cartoon depiction.
ANALYSIS
1. In the defence of fair comment, does the comment have to be true? Explain. 1. The
"fair comment" defence applies to protect honestly held opinions on a matter of
public interest that are not motivated by the desire to harm the plaintiff (malice).
Protected opinions, however, must be "based on fact." The question arises as to the
extent to which the fact must be true and what standard of proof is required to
demonstrate that a fact is true. In other words, how "true" does the fact have to be,
and how does a defendant prove it? Student answers should identify these two
issues.
2. The "right of fair comment is one of the essential elements which go to make
up our freedom of speech." Explain the meaning of this statement. How would you

41
relate it to this case? 2. Citizens have the right to express opinions that they honestly
hold on matters of public interest, as long as they are not motivated by malice in
expressing them. In Ross v. Beutel, the plaintiff's anti-Semitic opinions were
published and widely known; they were a matter of public interest. Josh Beutel was,
therefore, entitled to express a contrary opinion on Ross's views. Free speech
includes the ability to express comparisons based on the factual similarity between
two authors' views. Beutel honestly believed that Ross and Nazi minister Josef
Goebbels held similar views. Expressing his opinion allowed others to evaluate it
and comment in turn. Protecting honest dialogue on matters of public interest is
necessary to ensure "freedom of speech" for all.

You might also like