Trip G Torts Flow Chart

Yes
Is duty of care a given?
Move on to
page 2
TRIP GS
Must show:
1.
2.
3.
4.
5.
Ultimate Torts Flow Chart

No
No
No
negligence
START HERE!
Any neighbours?
Anns test
Cooper v Hobart
Policy reasons
Proximity and Yes
not to impose
foreseeability?
duty?
Yes
No
Duty of Care exists

Breach of standard of care
Causation
Harm
Proximate Causation
Only owe duty to reasonably forseeable plaintiff, not

the whole world (Bourhill v Young)
Duty to protect subjects of the state (ORourke)
No
Expectations,
reliance, property,
representations
Crazy relationship?
Prima facie duty of

care established!
Police?
Duty to protect subjects of the state (ORourke)
Creation of danger?
Pregnant?
Further questions
Once a person has created a danger, negligently or not, he

owes a duty to those exposed (Oke dissent), even rescuers
Pregnant mother has no duty to unborn child

(Dobson)
Patron?
Duty to Rescue?
If a patrons condition is foreseeably and reasonably likely

to result in harm and the owner has created this, through
overserving then a duty is owed (Jordan House)
Statute?
Further questions
Statutes are evidence, but not proof of duty (ORourke);
Government actors are only liable for operation, not policy
Duty can be imposed and create a positive duty to act when:

1.
2.
3.
Defendant created or controlled risks

Pateralistic relationship
Defendants have a public function and can owe a
duty to the public at large (power plants)
Harm?
1. Personal injury/death
2. Damage to property
3. Pure economic loss (see pg 5)
Yes
Move on to
page 3
Is a breach of standard of care given?
The reasonable person standard is

objective and not based on the specific
defendant (Vaugn v Menlove)
No
- Negligence
No
Yes
+Harm/+Likelihood
Police take certain risks

Preistman;
Such as speeding
Bittner
Harm must be the kind

envisioned by statute
Hatch v Ford
Class of person harmed
must be envisioned
Kelly;Davey
Simple compliance with
statue doesnt exhaust
standard
Ryan v Victoria
+ Negligence
Was the harm forseeable?
Bolton; Blyth
Was the likelihood of

harm trivial?
Bolton
Gravity of potential harm

vs. likelihood
Paris
Yes
No
-Harm/-Likelihood
Yes
Are precautions
expensive?
Bolton; Wares Taxi
No
Yes
Was the negligent activity

one of social utility?
Hertfordshire County
No
Yes
Yes

in compliance with
(reasonable) customs?
Waldick v Malcolm;
Rolls Royce

in compliance with
statute?
Sask. Wheat Pool
No
No
Standard of care special

groups
Children
Should be compared to a child
of like age, intelligence, and
experience (Heisler v Moke)
Mental Illness
Doctors (Skilled People)
Cant be liable if struck with sudden mental

illness that impedes understanding of
standard of care (Fiala v Cechmanek)
Tested against reasonable

Dr. of that specialty
(Challand v Bell)
A mentally ill person who cannot

appreciate a duty of care while driving will
be tested under the objective reasonable
driver (Wenden v Trikha)
Lawyers
Same as above (Brenner)
Move on to
page 4
Must be a necessary condition

of harm, not just possibility
Kauffman v TTC
Yes
Is causation given?
Negligent act must change the

outcome. If irrelevant then not
satisfied. Davidson v
Connaught Labs
No
Yes
Can the plaintiff show that but for the defendants

actions, the harm would not have occurred?
Snell v Farrell
No
Tactical Burden Shift!

Defendants must exonerate
themselves.
Is there a knowledge that only the defendant has?

Snell
Yes
No
Is only one defendant clearly liable but it is

impossible to discern which one?
Cook v Lewis
Must prove that they were not

the responsible party.
No
Causation proved!!
Material Contribution!
Are there two contributing causes of the harm and it

is impossible to discern the single cause?
(Mesothelioma in Fairchild)
Yes
No
Modified objective test!

Would a reasonable person in
the position of the plaintiff have
elected for surgery/procedure?
Reibl v Hughes
This test can include age,
income, family status, beliefs,
fears. Only disregard
unreasonable fears or unrelated
ones.
Arndt v Smith
No
Medical disclosure?
Patients must be give

information about alternative
procedures Van Mol v Ashmore
Patients must be give
information about risks,
including psychological harm
Meyer Estate v Rogers
Doctor must be able to judge
degree of understanding.
Usually must be discussed in
person. Byciuk v Hollingsworth
Defendant must have already

breached duty of care owed,
exposing the plaintiff to
unreasonable risk, with injury
resulting. Resurfice
Yes
Medical malpractice?
No
Yes
Very little evidence needed to

infer causation when lopsided
distribution of knowledge.
Doctors health only need be

disclosed when there is no
abnormal risk Halkyard
Information need not be
repeated unless no new risks
and risk/benefit hasnt changed
Ciarlariello v Schacter
No
No causation!!!!
Move on to
page 6
Yes
Is proximity a given?
Damage is too remote
No
No
Is this a mental injury?
Yes
No
Yes
No
Does the mental injury must rise to the level of

physical injury to be recognized. Mustapha
Would a reasonable person of ordinary
fortitude have suffered injury? Mustapha
Is the kind of harm forseeable?

Wagon Mound #1
Yes
No
Is the kind of harm a real risk

and not a mere possibility?
Wagon Mound #2
Yes
Was there an intervening cause?

The harm is too
remote for liability to
arise!!
Yes
No
Apply
Does the plaintiff have a

previous condition?
Complete defence. But if fails may still be

evidence of contributory negligence.
Harris; Contributory Negligence Act
Yes
Thin skull: A defendant must only foresee the
type of injury, not the extent of injury
Leech Brain
No
Apply
The harm is sufficiently

proximate for liability to arise!!
Crumbling Skull: If a plaintiff would have

eventually suffered the same harm anyway the
defendant is only liable for the harm between
when the harm did occur and when it would
have occurred. Athey v Leonati
Move on
No
Policy Considerations
Does there appear to be

economic loss?
Can find more with an

Anns test (Martel)
Apply in negligent construction of

buildings and contractual relational loss
(Winnipeg Condo)
Who is the best person to insure the risk?
That person should bear the loss. CNR
Yes
What kind?
Negligent
Misrepresentation
Negligent Service
Negligent Goods and

Structures
BDC Ltd v Hofstrand
5 requirements (Queen)
Duty of care from special
relationship? Cooper,
Hercules
Yes
Representation was untrue,
inaccurate or misleading?
Yes
Representor acted
negligently?
Yes
Creates
prima
facie duty
of care;
Hercules
Reasonable reliance? D
expected reliance?
Does the building pose real

and substantial danger to
inhabitants?
Yes
Did D assume risk by
providing service?
Yes
No
Yes
Did Ds undertaking affect
Ps actions?
Doesnt
apply to
chattels
(Rivtow)
Duty owed to
subsequent purchasers
Winnipeg Condo
No
Yes
Duty of care found

under Cooper
No duty owed!
Reasonable Reliance? Hercules
Yes
Did D disclaim
responsibility? Hedly Byrne
No
duty
found
No
Yes
Reliance was detrimental?
Yes
No
Did P rely on D?
(Required)
No
Duty of care found

under Cooper
a. Defendant had a direct/indirect financial interest

in the transaction in respect of which the
representation was made.
b. Defendant was a professional or someone who
possessed special skills, judgment or knowledge.
c. The advice or information was provided in the
course of defendants business.
d. The advice or information was given deliberately,
and not on a social occasion.
e. The advice or information was given in response
to a specific enquiry or request.
Contractual Relational Loss

Strong presumption against recovery
CNR.
McLachlin Anns test good enough
La Forest Only in exceptional cases
Current categories (not closed) Bow Valley
a. cases where the claimant has a possessory or
proprietary interest in the damaged
property;
b. general average cases (maritime sacrifice
made by one party in a joint sea activity in
imminent peril to save the ship);
c. cases where the relationship between the
claimant and property owner constitutes a
joint venture. [no legal test for joint
venture].
Yes
Is there a physical contract?

Star Tavern
No
No
No duty found
Yes
Personal injury is not recoverable

under contracted loss (DAmato)
Action for fatalities can be brought
by spouse, child, etc.
Duty of care found

under Cooper
Does the defendant want to

defend themselves?
Obviously!
Yes
Did the plaintiff sign a

waiver?/Assume risks
No
No
Was the plaintiff hurt while

doing something immoral or
illegal?
Volenti defence (complete)

Genuine inference that the plaintiff
consented to both the risk of injury and
the lack of reasonable care that may
produce the risk; Hambley v Shepley
Signing party must have his attention
drawn to it, cant be buried in fine print,
must be aware of nature of the clause;
Crocker v Sundance
Yes
No
Ex turpi defence (complete?)

Cant profit from legal (and possibly
moral) wrongs; Hall
Cant negate or partially negate a
criminal penalty; Zastowny
No
Integrity of legal system at stake
Was the plaintiff incarcerated?
Yes
No
Yes
Were they driving a car?

No
No
Contributory negligence?
Yes
No
Yes
Cant recover lost wages for time

incarcerated; Zastowny
No
Yes
Yes
All occupants have a duty to wear a
seatbelt. Driver must ensure <16yo wear
seatbelts. Parents of <16yo must ensure
seatbelts; Galaske.
Failure to weat a seatbelt is only relevant
when the injury would have been
significantly less serious when worn.
Labbee v Peters
Yes
Court can determine the degree of fault (s.2(1))

CNA) and apportion as such (s.2(1)) CNA).
If apportionment cannot be determined then
liability will be apportioned equally (s.1(1) CAN).
Defendants have burden of proof to prove that harm
would have been reduced if the plaintiff had not
been negligent Labbee
Last clear chance rule does not exclude harm when
someone could have avoided consequences and
failed to do so. (s.3.1 CAN)
No
Yes
No defence granted!
Partial defence granted!
Complete defence granted!
Occupiers Liability?
Applies to condition, activities and

conduct of third parties on premises
s. 6(a-c)
Occupier owes a duty of care to every visitor that they will

be reasonably safe using the premise for the purpose of
their invitation or permission. Waldick v Malcolm; s. 5 OLA
Occupier?
S. 1(c)
(i)
S. 1(d)
Premises?
(ii)
Physical
possession of
premise?
Or
Control over
premise?
Scaffolding affixed or not
(i)
Yes
Poles, pylons, wires used for power,

communication, or transport affixed or not
(ii)
Railway cars
Through
contract?
(ii)
(i)
Or
Ships
(iv)
Leaving after
unlawful entry
Or
Duty found!
(iii)
By right?
(iii)
Or
Can be more than one
Lawful
presence?
Or
Or
Occupier!
S. 1(e)
Or
Or
Yes
Visitor?
Trailers used or designed for

offices, shelters, residences
(v)
Yes
(iv)
Yes
Visitor!!
Premise!
Defences
They are a child. s. 13

No duty owed to trespassers
unless:
Or
Occupier has acted wilfully
(s.12(1)) or recklessly (s.12(2))
Warning not enough for defence

unless it enables a visitor to be safe
s. 9
Visitor willingly accepts risks

s. 7
Express agreement or notice

to visitor s. 8(1)
Strict Liability
(No Fault Liability
Non-Natural Use?
(Rylands)
vii.
viii.
ix.
x.
xi.
xii.
Increased danger to others

Not merely the ordinary use of the land
General benefit of the community (e.g., Sewers (Tock))
Necessity/obligation.
How others view it (e.g., aerial spraying, Ratke)
Time, place, and circumstances (e.g., landfill, Gertsen)
Yes
Escape?
Harm?
Yes
iv. According to Read (HL 1947), escape is from a place which the defendant has
occupation of, or control over, to a place which is outside his occupation or control.
v. In Dokuchia (ONCA 1945), Rylands was not confined to landowners but made the
owner of a dangerous thing liable for damage caused by it, whether caused on or off
the defendants premises.
vi. In Ekstrom (Alta SC 1946), Rylands applied to a person who takes a dangerous article
onto another persons property and damages that property.
i. Traditionally, only property damage (Read).

ii. May include personal injury (Perry).
iii. In ON, includes personal injury to anyone to whom the probability of such damage
would naturally be foreseen (Aldridge).
Strict Liability
Found!
Yes

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Yes

Is duty of care a given?

Ultimate Torts Flow Chart

Duty of Care exists

Only owe duty to reasonably forseeable plaintiff, not

Prima facie duty of

Duty to protect subjects of the state (ORourke)

Once a person has created a danger, negligently or not, he

Pregnant mother has no duty to unborn child

If a patrons condition is foreseeably and reasonably likely

Duty can be imposed and create a positive duty to act when:

Defendant created or controlled risks

Is a breach of standard of care given?

The reasonable person standard is

Police take certain risks

Harm must be the kind

Was the likelihood of

Gravity of potential harm

Was the negligent activity

Was the negligent activity

Was the negligent activity

Standard of care special

Doctors (Skilled People)

Cant be liable if struck with sudden mental

Tested against reasonable

A mentally ill person who cannot

Same as above (Brenner)

Must be a necessary condition

Negligent act must change the

Can the plaintiff show that but for the defendants

Tactical Burden Shift!

Is there a knowledge that only the defendant has?

Is only one defendant clearly liable but it is

Must prove that they were not

Are there two contributing causes of the harm and it

Modified objective test!

Patients must be give

Defendant must have already

Very little evidence needed to

Doctors health only need be

Is this a mental injury?

Does the mental injury must rise to the level of

Is the kind of harm forseeable?

Is the kind of harm a real risk

Was there an intervening cause?

Does the plaintiff have a

Complete defence. But if fails may still be

The harm is sufficiently

Crumbling Skull: If a plaintiff would have

Does there appear to be

Can find more with an

Apply in negligent construction of

Negligent Goods and

BDC Ltd v Hofstrand

Does the building pose real

Duty of care found

Reasonable Reliance? Hercules

Duty of care found

a. Defendant had a direct/indirect financial interest