Alright, let's dive right in. Welcome to the October 2nd torts class.

Today, we're continuing

our exploration of the tort of negligence. This topic is somewhat more straightforward than
the earlier intentional torts because most people are familiar with its elements. The
challenge lies in understanding the content of today's class, particularly the concept of
causation.

In our last class, we discussed the idea that negligence equates to carelessness. But what
does it mean to be careless? According to common law, carelessness is defined as falling
below an objective, contextual standard. It's objective because we consider what a
reasonable person would have done in the same situation. It's contextual because we don't
ask what a reasonable person would do in general, but rather in that specific context.

The core issue is whether a reasonable person should have taken precautions to avoid or
mitigate risks. The question becomes: which risks should be avoided? The answer is those
that a reasonable person would deem unacceptable. This is based on the logic from Bolton v.
Stone, which considers the magnitude of potential injury and the likelihood of its
occurrence. There's also debate about whether the cost or effort to avoid the risk should be
considered. Some suggest evaluating the likelihood and severity of the risk against the cost
of prevention. Bolton v. Stone suggests that the cost of avoidance doesn't matter, while the
American "learned hand" formula does consider it.

In theory, cost matters, but modern negligence law focuses on compensating for injuries.
The key question is whether an injury was caused, regardless of whether it could have been
avoided. Whether this remains the prevailing view is debatable. We'll explore this further
when we discuss causation.

Over time, the scope of tort liability under negligence has expanded, but there's been a
rethinking and reduction of this liability in certain areas. For instance, liability for pure
economic loss has been reduced, while liability for physical injury remains high. In fact, the
definition of physical injury has expanded to include psychological injury, which we'll
discuss today.

This ties back to the fundamental principle of tort law: protecting the physical integrity of
the body. Negligence law reacts when physical injury is caused, even indirectly or carelessly.
However, when it comes to lesser interests like property or economic interests, there's been
a reevaluation of liability.

We'll delve deeper into these topics in future classes. For now, let's focus on the four or five
elements of the tort of negligence, depending on how you classify them.

I posted on Studium an explanation of the five elements, focusing on the first element, which
is duty. This week's class and last week's class primarily address this concept. You can ask
two main questions about duty: What does it require you to do, and to whom is the duty
owed? The essence of duty is that it imposes an obligation, either to act or refrain from
acting.

Today, we explore the question of "duty to whom?" While it might seem that you owe a duty
to the entire world, the reality is more specific. Most debates have centered around this
area, as the content of duty was largely established in early cases like Bolton and Stone.
However, there have been significant developments in this area, as expanding the scope of
duty can increase liability in negligence cases. If you don't owe someone a duty, you aren't
responsible for any harm they suffer, and your legal defense would be straightforward: "I
didn't owe you a duty to avoid it."

Negligence often resembles the principles found in Article 1457, where fault is defined as
falling below a certain standard. However, Article 1457 lacks a duty component. Civil law
doesn't frame liability as owing a specific duty to another party, which is a unique aspect of
common law. The concept of duty in common law emerged to recognize limited liability
towards individuals, allowing for a distinction between those to whom a duty is owed and
those to whom it is not. Previously, common law liability was often based on relationships,
where the nature of the relationship determined the obligations. As this relationship-based
thinking evolved, new methods were needed to link these issues.

In the 19th century, the focus on duty became prominent, leading to debates about whether
a general duty was owed and how it should be understood. To grasp the historical legal
position, it's essential to understand how negligence was perceived before 1932. At that
time, there wasn't a general principle dictating to whom duties were owed. Instead, the law
outlined specific situations where duties existed, allowing for categorization into broader
groups.

The legal framework was based on specific relationships. If you could demonstrate that
parties A and B were in a particular situation, it would follow that A owed B a duty of care. A
classic example involves product liability. If I produced a non-dangerous product and sold it
to you, our relationship would be contractual, and my liability would be based on that
contract. However, if you were merely a user of the product and not the buyer, the common
law in the 19th century stated that no duty was owed if the product had issues.

The problem could be that the product was simply of poor quality, leading to pure economic
loss. If you didn't purchase it, you couldn't complain to the manufacturer about its quality.
However, if the product caused injury, the landmark case of Winterbottom v. Wright
addressed this issue. The ruling stated that if a product injured someone who didn't buy it,
that alone wouldn't establish a duty between the manufacturer and the user. Additional
factors were needed, such as the product being inherently dangerous, like medicine or
explosives. If improperly produced or labeled, these could cause harm, establishing a duty
of care to anyone foreseeably affected.

The relationship had to be specific, such as a manufacturer of an inherently dangerous

product to someone who comes into contact with it. If the product wasn't inherently
dangerous, there was no default duty of care. Another way a duty could arise was through
misinformation about the product, leading to harm. This framework functioned well, but
people questioned whether there was a unifying principle behind these situations. Attempts
to answer this were rejected until 1932 in England and around 1919 in the United States.
However, since English law heavily influenced us, 1932 marks the pivotal moment for this
legal development.

The most famous case in the law of negligence, often referred to as the birth of modern
negligence law, is Donoghue v. Stevenson. The case is primarily concerned with whether the
defendant owed a duty of care, not with determining liability. If a duty of care is established,
then the defendant could be held liable, but the case itself does not decide liability. This is
somewhat frustrating for those studying the case, as the duty was established, but there was
never a trial to determine actual liability.

The case involves the liability of a manufacturer towards a consumer. The basic allegation is
whether the manufacturer owed a duty of care. The incident occurred when a woman and
her friend visited a cafe in Paisley, Scotland. The friend bought the woman a dessert, which
included a ginger beer. The drink was in a brown glass bottle. After pouring and drinking
some of the ginger beer, the woman discovered what appeared to be a piece of a snail in the
remaining liquid, leading to the case being known as the "snail in the ginger beer bottle."

The woman claimed she suffered physical illness from drinking the contaminated beverage
and sought compensation for her injuries. The question was who owed her a duty of care.
She could not sue the cafe directly because she did not purchase the drink herself. The case
ultimately focused on whether the manufacturer owed a duty of care to the consumer, even
though the consumer did not directly purchase the product.

Do you see what I mean? Her only option is to sue in tort. She must argue that a duty is
owed to her, likely to ensure the drink is safe. She would claim that this duty was breached
because there was a snail in the ginger beer. However, the first hurdle is establishing that
she is owed a duty. The challenge she faces is the precedent set by 19th-century cases,
which state that if you didn't purchase the product, you weren't owed a duty, especially if
the product wasn't inherently dangerous. Ginger beer, while many things, is not inherently
dangerous. The defense could argue that they don't owe her a duty. If no duty is owed, then
there can be no breach, and thus no liability.

Before discussing whether the duty was breached, the defendant might argue that the
preliminary issue is whether they owe a duty of care at all. If no duty of care is owed, then
the proceedings are unnecessary. Even if they were as careless as possible, it wouldn't
matter because nothing would follow from that carelessness. This is the issue the court
faces: determining whether the defendant owes a duty, not whether the duty was breached.

To answer this, one approach is to look at precedent. Is this situation consistent with
previous cases where a duty of care was recognized? The clear answer is no. So, one could
conclude that no duty of care exists. Alternatively, the court could consider whether to
recognize a new duty. How should they decide this? The case is famous because one of the
judges, Lord Aiken, proposed a method for recognizing additional duties of care. He
suggested identifying what all situations where a duty of care is owed in negligence have in
common. He argued that these situations share certain characteristics.

In contrast, Lord Buckmaster dissented, foreseeing the consequences of adopting Lord

Aiken's reasoning. He warned that it could lead to an excess of duties of care, causing
confusion about when a duty is owed.

Focusing on Lord Aiken's argument, it's crucial to understand that the question isn't a
general one of whether a duty of care is owed. Instead, it's about whether a duty of care is
owed given the specific relationship between the parties. Lord Aiken questioned whether a
manufacturer owes a duty of care when selling a drink to a distributor, especially when
circumstances prevent the distributor or ultimate consumer from inspecting the product for
defects. The fact that the drink was in a brown bottle was significant for Lord Aiken. Why?

Do you see this? Who knows what's inside it, apart from perhaps some provincial flavors or
something similar? Now, imagine if it were made of glass, allowing me to see inside. At that
point, Lord Aiken suggests we're in a different situation. I might not owe you a duty of care
because if I bought the Eska bottle, I could see what's inside. If I drank it without looking,
you could argue that I was simply careless. Any reasonable person would have checked the
contents. Here, even if I wanted to, I can't. Hence, the fact that it's a brown bottle is
significant. Do you see how his description of the situation illustrates that?

The issue is whether there is a legal duty to the ultimate purchaser or consumer to ensure
the product is free from defects likely to cause injury to health. It's about reasonable care,
an objective standard, but only to avoid risks that could harm your health. See how all these
elements are integrated? Moving forward, he notes how challenging it is to find general
statements in English law that define the relationship between the law and its application.

The language is complex, and I don't know if the discussion is happening in another
language, perhaps Tamil or French. The law of intentional vitriolic activity, or what you
might call negligence, involves further divisions regarding ownership, occupation, or
control, and distinctions based on specific relationships, whether manufacturer, salesman,
landlord, consumer, tenant, or stranger.

Despite these distinctions, the duty common to all cases where liability is established must
logically be based on some element shared by those cases. Seeking a complete logical
definition of the general principle likely exceeds a judge's function. The more general the
definition, the more it risks omitting essentials or introducing non-essentials.

In the early learning of common law, there's a profound statement about the common law
method: cases are about resolving the dispute before the court. This focus makes it difficult
for courts to state solutions in overly broad terms. The emphasis is always on identifying
the problem and finding a specific solution. Rarely will a judge provide an encyclopedic or
comprehensive analysis of the situation. The process is not conducive to such analyses.

Now, the punchline: how do you attempt to provide a general solution? In English law, there
must be a general conception of relationships that give rise to a duty of care, of which
particular cases are merely examples. It's about classifying relationships and understanding
why a duty of care exists in some and not others. Liability for negligence, whether styled as
such or treated as a species of negligence in other systems, is not a duty of care.

The Roman concept of negligence, or "culpa," is undoubtedly rooted in a general public

sentiment of moral wrongdoing for which the offender must be held accountable. This
raises an interesting question: Where does liability originate? Is it based on morality?
According to this perspective, negligence arises because one has acted in a morally
inappropriate manner. While one might disagree with this view, it appears to be the belief
held by some. This leads to further analysis: acts or omissions that any moderate moral
code would condemn cannot, in the practical world, be treated in such a way that every
person injured by them has the right to demand relief.

The issue is not solely about personal beliefs; it also concerns whether one must pay for
their actions. Morality extends beyond the law, influencing legal rules that limit the scope of
complaints and the extent of remedies. The moral directive to "love your neighbor" is
translated in legal terms to "you must not injure your neighbor." This concept, rooted in
religious teachings, particularly from the Sermon on the Mount, is a significant statement of
legal effort. Lord Atkin, who was quite religious, explicitly draws from this source, stating
that while Jesus says to love thy neighbor, the law requires only that you do not injure them.

The legal question then becomes: Who is my neighbor? The Sermon on the Mount suggests
that every human being is your neighbor, but in legal terms, this cannot be the case. Instead,
the law requires that you take reasonable care to avoid acts or omissions that you can
reasonably foresee might injure your neighbor. Legally, your neighbor is someone who is so
closely and directly affected by your actions that you must have them in your contemplation
when considering your actions or omissions.

When considering your actions, you must ask if it is foreseeable that someone might be
injured by them. If so, they are your neighbors in a broad and reasonable sense. The law
does not extend to those who are too far removed from the situation. In medical practice,
for example, the focus is on those directly affected by one's actions.

Liability in negligence does not arise merely from putting others at risk. It requires that
there was a duty to avoid that risk, and that the risk materialized and caused injury. All
these elements must be present for liability to exist.

Lord Buckmaster's dissent is quite scathing. He argues that if a duty exists, it must extend to
every person who lawfully uses the article made. Is it not reasonably foreseeable that
anyone using the article could be injured by it? If so, then there is a duty to avoid that risk.
However, this duty is not merely a lawful act but a responsibility to prevent foreseeable
harm.

You mentioned that the manufacturer owes a duty to anyone who consumes or uses the
product. This is the first step. Traditionally, there is no special duty for food manufacturers
beyond what is implied by contract or imposed by statute. If such a duty exists, it should
logically extend to the construction of every product. If you accept that there is liability for
food, which is not inherently dangerous, then you must also accept that any manufacturer of
any product owes a duty of care to its users.

The argument is that if such a duty exists, it should apply to the construction of every
article, including houses. Historically, there was no duty of care in cases involving houses.
However, if a house is negligently built and the ceiling collapses, injuring the occupant,
English law allows for action against the builder. The speaker sarcastically notes that such a
right existed in Babylonian law, implying that it was not the right kind of law from a modern
perspective.

The importance of the case lies in determining how to advance the question of duty. Is your
neighbor in law if it is reasonably foreseeable that your actions might cause them physical
injury? It took a long time for the implications of Lord Atkin's statement to be fully realized.
Before World War II, there was only one case before the House of Lords or the Privy Council
that considered this, involving itchy underwear from Australia Mills. The case involved a
man who bought underwear for someone else, which caused skin irritation. The court found
that there was a duty of care.

From the late 1960s to the end of the 1990s, there was a significant expansion of tort
liability and duties of care under Donoghue v. Stevenson. This led to concerns about
whether the expansion had gone too far. Judges began to question if they had reached a
point where further expansion was unnecessary. The modern Canadian analysis of this
issue began with the 2001 Supreme Court of Canada case, Cooper v. Hobart.

This is not a case of physical injury, correct? In that sense, it is considered less worthy of
protection compared to the situation in Donoghue v. Stevenson. Instead, the injury claimed
by the plaintiff is purely economic—they lost money. Why did they lose money? They
invested in a business scheme run by a mortgage broker, essentially investing in some form
of mortgages. The mortgage broker was either incompetent or possibly fraudulent, leading
to their financial loss. Can they sue the mortgage broker? Yes. However, is that likely to be
effective? No.

One common issue, especially with fraudulent activities, is that by the time the fraud is
discovered, there is often little to no money left to recover. Even if some funds remain, they
are usually insufficient to compensate everyone affected. So, what is needed at that point?
You need to identify someone else who might owe you a duty of care and could be liable for
the loss. Typically, this involves finding individuals or entities who should have detected the
fraud but failed to do so. In this case, the target is the BC mortgage broker regulator.

The claim is essentially that the regulator, responsible for overseeing mortgage brokers,
failed in their duty. The argument is straightforward: had the regulator properly monitored
the broker, they would have discovered the broker's improper activities and stopped them,
preventing the financial loss. Does the regulator have a duty to monitor the broker? Yes,
because the regulator is established by statute, usually by a government authority, which
grants them the authority to address such issues.

However, it's important to note that violating this duty or government-imposed obligation
does not automatically mean the regulator owes a duty to any third party. The obligation to
perform certain duties for the government does not inherently make the regulator liable to
third parties. Instead, it must be established that the broker owed a duty of care to the
customers. This is what the Supreme Court examined in the Cooper v. Hobart case, where
they developed a more complex test to determine such duties.

In answering the question of who is considered a "neighbor" in legal terms, it involves more
than just foreseeability; there are additional elements and multiple steps to consider.

Let me turn to the judgment of Chief Justice McLaughlin and Justice Major. In paragraphs 21
and 22, they rely on the Donoghue v. Stevenson case as the starting point of their analysis.
This case introduced the principle that a person could be held liable only for reasonably
foreseeable harm. However, it also acknowledged that not all reasonably foreseeable harm
might be captured.

In paragraph 22, the judgment notes that the House of Lords revolutionized common law by
replacing the old categories of tort recovery with a single comprehensive principle: the
negligence principle. From then on, liability would arise in negligence when a reasonable
person would have viewed the harm as foreseeable. However, foreseeability alone was
insufficient; there also needed to be a close and direct relationship of proximity or
neighborhood. Thus, it wasn't just about carelessness; there had to be a duty of care,
referred to here as proximity or neighborhood.

In paragraph 23, the judges clarify the limits of proximity. One way to determine if
proximity is satisfied is to see if a duty has been established in the past. If it has, then the
duty exists. Cases like Cooper v. Hobart and Donoghue v. Stevenson are only relevant when
a duty has been previously established. In cases where there is no pre-existing duty of care,
the question is whether to recognize a new duty.

When new cases arise, we must look for guidance in determining whether, in addition to
foreseeability, the circumstances disclose sufficient proximity to justify imposing liability
for negligence. The House of Lords addressed this in the case of Anns, where Lord
Wilberforce stated that the duty of care required a finding of sufficient proximity to create a
duty, followed by consideration of any factors that might negate it.

This means moving from the question of foreseeability to an analysis of proximity. The first
step is to ask if it is foreseeable that a person would be injured if a duty of care was not
taken. The second step, known as a policy analysis, considers whether there are any policy
reasons to reject the duty despite its foreseeability.

Paragraphs 24 to 26 focus on the importance of Anns in recognizing that policy issues might
complicate the existence of a duty of care. This introduces a level of uncertainty, as policy
reasons may not always align with legal arguments. However, Chief Justice McLaughlin
views this flexibility as a positive aspect, allowing for the right decision to be made. This is
step two in the analysis.

You still need to address what happens at step one. Much of the analysis focuses on this. In
ANZ and Canada, the ANZ test is often referred to as the ANZ Kamloops test. This is because
ANZ was a UK House of Lords case, and several years later, the Supreme Court of Canada
approved it in a case called City of Kamloops in 1984. For a long time, the Supreme Court
referred to the ANZ Kamloops test for the duty of care. The test has two parts. The first part
is straightforward, with no particular reason for its simplicity. It was a simple test,
addressing mistakes made at the exact time. This test was indemnified for intention in order
to... In the civil service, the focus was on foreseeability. Foreseeability and proximity, and
therefore the concept of a "neighbor," are all considered equal in this context. This is one
way to understand what ANZ essentially states. Cooper argues that this is too broad and
requires more precision.

The term "neighbor" is crucial because the concepts of proximity, neighbor, and
foreseeability are often used interchangeably. In paragraph 28, the question arises: should
we completely discard the ANZ Cooper test? Chief Justice McLaughlin and Justice Major
argue that the ANZ two-stage test, when properly understood, does not involve duplication,
as it is a double-stage test. They maintain that the ANZ framework continues to be useful for
determining whether a duty of care should be imposed in new situations. However, they
acknowledge some issues. Is foreseeability enough? In paragraph 30, it is suggested that
foreseeability alone is insufficient; something more is needed.

In summary, paragraph 30 suggests that at this stage in the evolution of the law, both in
Canada and abroad, the ANZ analysis is best understood as follows: in the first stage of ANZ,
two questions arise. The process has evolved from a single question to two parts. This is the
novel aspect of the process. The two parts are: Was the harm that occurred reasonable? Did
the rule stand? The other part questions whether the act was held on.

No. All right. So, that's your 512. You know the basics. The default requirement is a
reasonably foreseeable consequence of the defendant's actions. You still need reasonable
foreseeability, but there must be something additional because it looks exactly like this. So,
what's the extra part? Are there reasons, despite the proximity between the parties, that
should be recognized? The proximity analysis in the first stage of the ANZ test focuses on
factors arising from the relationship between the plaintiff and the defendant. These factors
also include policy questions in a broad sense. If foreseeability and proximity are
established at the first stage, a prima facie duty of care arises. She then argues that
foreseeability and proximity are separate. That's the extra part—she separates them based
on policy. She then asks different questions. To make it slightly more confusing, step two
still involves policy, but she restates the types of policy involved. Do you understand? I don't
really grasp the second policy. I think the second part of the first stage of the ANZ test needs
clarification. It's a fair question. If they all look the same and she claims they're not, she
owes you an explanation. How are they different? She will say that these policy reasons are
external to the relationship, while others are internal. I'm outlining what she's discussing.
Right? Okay. I'm going to delve into this. In case it wasn't clear, in the first branch of the ANZ
test, reasonable foreseeability of harm must be supplemented by proximity. The question,
which you considered, is what is meant by proximity? Reasonable foreseeability is still, in
some ways, what Lohr's argument is about. I think you have to consider what Lord Aiken
had in mind: Would a reasonable person imagine that if I do this, I would cause you injury?
That's the question.

So, what are we considering when we look at proximity in this context? Proximity is
generally used by authorities to describe the type of relationship where a duty might arise.
The focus isn't on whether it's likely or possible that I might harm you; rather, it's on the
nature of the relationship between the parties involved.

In an interesting way, she's trying to balance both perspectives from before and after
Donoghue v. Stevenson. She wants to maintain a broad general approach while also
categorizing based on relationships. Does that help clarify the difference between the two?
Is it at least somewhat understandable? Can you provide a simple example to define both?

Let's refer to Donoghue v. Stevenson. If I sell you a ginger beer and it's tainted, is it
reasonably foreseeable that improper production could harm someone who consumes it?
Yes. But what's our answer? It's about our relationship. My relationship with you is as a
manufacturer of a food product, and you are the consumer. This differs from my
relationship with a restaurant that sells the product. In that case, I'm a consumer in the
sense that I'm buying it, but not in the sense of consuming or drinking it. That distinction
might matter. Why? Because the nature of the potential harm differs.

If I'm the consumer drinking it, the concern is that I might get sick. On the other hand, if I'm
the restaurant, my loss is likely economic. My customers might sue me, or people might
discover that the restaurant sells toxic drinks and avoid it. This scenario was precisely the
claim made in a recent Supreme Court case: a tainted product was manufactured, and I
bought it for my customers' use.
When it became known that I was serving this product, I lost clients. So, let's address that.
You mentioned something about the employer and consumer sides being competitors
because they need a standard. I included a tainted product, and that's the main issue. The
frequency of this occurrence is concerning, especially when it comes to the information
being leaked.

Regarding the service, it should be safer rather than less safe. I hope most people agree with
me that food should be an adventure in taste, not a health risk. Moving forward, let's discuss
relationships. Starting at paragraph 33, she asks, "What are relationships?" She explains
that proximity describes a close and direct relationship.

The next question is which relationships owe a duty of care and how to determine that. The
answer is complex. As she explains in paragraph 34, defining the relationship involves
examining expectations, representations, reliance, and the property or other interests
involved.

Proximity suggests closeness. Expectations refer to whether we expect people to act in a

certain way from a social perspective. Representations mean you might feel close if
someone tells you their food is good and healthy, and you consume it based on that
representation. Reliance occurs when you change your position because of someone's
actions, creating a link between you.

Finally, consider whether there is a property or other interest that connects you. These
factors help evaluate the closeness of the relationship between the plaintiff and the
defendant to determine if it is just and fair to impose a duty of care in law. Thank you.

Thank you. Thank you. Thank you. Thank you. Okay, thank you. Aloha. Thank you. So, thank
you. Thank you. Okay. Some might see me as a subordinate in conduct. I have a request and
there are things I couldn't do. I could ask you questions about expectations. One way
expectations could arise is by the parties imposing them on themselves. However, they
could also arise because we believe, for policy reasons, that it would be beneficial for them
to exist.

For example, when you go to a restaurant, do you think it would be a good policy to require
the restaurant to serve only healthy food? I would think so. I would be surprised if many
societies said it doesn't matter, as it makes life more interesting. Notice, this isn't about the
nature of the right; it's about policy and how we want these things to operate. That's the
idea we're exploring.

Now, let's consider the second stage briefly. What are the policy reasons? Could we take a
break? Yes, but let me address this last point first. At the second stage, the policy might be
external to the relationship. It could be that the liability is too large, unclear, or could
negatively impact the world. At that point, we can take a break because the situation is
problematic, at least from that perspective.
Okay, we'll restart in about ten minutes. Just a moment. Yay! I'm going to cook with that
then. Is that okay? Okay. So, let's start. Hopefully, we'll be able to go home at some point as
well.

Having stated the general test in Cooper and Hobart, how did the Supreme Court apply it? It
basically looks at...

The relationship between the parties is fundamentally governed by the statutory

obligations imposed on the brokerage regulator, as outlined in Cooper and Hobart. This
raises the question of whether a duty of care should exist. We will explore this in detail in
one of our classes, focusing specifically on public authority liability.

The issue at hand is that the broker regulator acts as a quasi-governmental agency fulfilling
a statutorily defined obligation. This leads to questions about whether liability should be
imposed in terms of duties. Even if the relationship satisfies the first step, the second step
presents challenges. In paragraph 52, Chief Justice McLaughlin and Justice Major state that
even if a prima facie duty of care is established under the first branch of the ANZ test, it
would be negated at the second stage due to overriding policy reasons. This illustrates a
policy reason: the decision to suspend a broker involves both policy and quasi-judicial
elements. The registrar must balance public and private interests, acting not just as an
executor of predetermined government policy but as an agent of the executive branch in
determining that policy. Moreover, the decision is quasi-judicial, requiring the registrar to
act fairly or judicially in removing a broker's license. These requirements conflict with a
duty of care to investors, as such a duty would undermine the obligations imposed by the
legislature on the registrar. Thus, even if a prima facie duty of care could be posited, it
would be negated by overriding policy considerations. The broker regulator's function is
not just to verify but to set policy and fairly prosecute breaches, which is inconsistent with
owing a duty to one party.

Now, let's consider another major case: Hill v. Hamilton Wentworth Regional Police Services
Board. The claim here is that an individual, suspected of committing several robberies, was
falsely investigated and prosecuted due to police negligence. Had the police conducted a
proper investigation, they would have discovered that he was not the perpetrator,
preventing his conviction. The claim is that the individual suffered a deprivation of liberty
because the police improperly investigated him as a suspect.

When the police investigate a crime, do they owe a duty of care to any person involved in
the investigation to ensure it is conducted non-negligently? Typically, when the police begin
an investigation, they do not know who the perpetrator is. Therefore, the question arises:
should a duty of care exist in such situations? The initial answer might be that duties of care
do not exist in this context, as they would be owed to the world at large.
The Supreme Court highlights a shift in focus when moving from investigating the world at
large to investigating a specific individual. This shift is significant because it involves a more
detailed discussion of the second step in the legal process. However, let's first address step
one. Beginning with paragraph 19, Chief Justice McLaughlin discusses tort law and the duty
of care. In paragraph 20, she clarifies that determining whether a person owes a duty of
care involves two questions:

1. Does the relationship between the plaintiff and the defendant demonstrate sufficient
foreseeability and proximity to establish a prima facie duty of care?
2. If so, are there any residual policy considerations that should negate or limit that duty?

The first element of such a relationship is foreseeability. In paragraph 22, the initial
question in determining a duty of negligence is whether it was reasonably foreseeable that
the alleged wrongdoer's actions would harm the victim. However, foreseeability alone is
insufficient; proximity is also required. The proximity inquiry examines whether the
relationship between the plaintiff and the defendant was sufficiently close to establish a
legal duty of care. The focus is on whether imposing legal liability for the wrongdoer's
actions is appropriate.

Generally, the proximity analysis involves examining the relationship in question,

considering factors such as expectations, representations, reliance, and other relevant
interests. The court ultimately concludes that there is sufficient proximity because the
question is not whether the police owe a duty of care to the world, but rather to the specific
individual they are investigating. This satisfies the closeness requirement.

The next step is to consider whether imposing liability on the police is compatible with
other important policies. One reason against imposing liability is the quasi-judicial nature of
police duties. Police officers are not like judges; their role is to collect evidence, not evaluate
it. This contrasts with the broker regulator in Cooper and Hobart, who had to evaluate
evidence and potentially prosecute breaches.

Another issue is the level of discretion police have. Their job requires flexibility and
intuition, not a mechanical exercise. This raises the question of whether a duty of care can
exist. The answer is yes; a duty of care can still be imposed despite the discretionary nature
of police work.

Many professions, such as lawyers and doctors, require a high standard of care despite
having significant discretion in their roles. A key issue arises when considering whether to
impose a duty of care on the police. Critics argue that doing so could have a chilling effect,
making officers hesitant to act for fear of being sued if their actions are based on hunches.
However, there is no concrete evidence that this hesitancy occurs in practice, so this
argument can be dismissed.

Another concern is the potential for excessive litigation. While it's true that imposing a duty
of care might lead to more lawsuits, this raises questions about the quality of policing. If
increased litigation suggests poor performance, then improving police work should be the
focus. Importantly, not everyone is owed a duty of care; it applies only to specific suspects,
not suspects at large. This distinction helps clarify the nature of the standard and the scope
of liability.

The last case in this series is "Art vs. Imperial Tobacco." In this case, the government sued
several tobacco companies for producing products that caused injury and death, leading to
increased healthcare costs. The liability of these companies to the government is
controversial, hinging on whether it is a matter of court decision or statute. The British
Columbia government led the charge by passing legislation that altered negligence rules to
favor the government in litigation. This raises the question of whether the case is one of
negligence or a hybrid legal action crafted by the government.

They said, "Now that we've made it easier, we'll prove that we won." However, that's not
what RB, Imperial Tobacco Canada, is dealing with. In this case, Imperial Tobacco
essentially argued that if the government sues them, they will initiate a third-party action
against Health Canada and Agriculture Canada. Why? Because if the government claims
their tobacco was unhealthy, one reason they used that type of tobacco was due to
recommendations from researchers at Agriculture Canada and Health Canada. These
researchers aimed to promote tobacco farming in Canada and suggested that this was a
healthier approach. They advised that a healthier type of tobacco should be grown in
Canada. Imperial Tobacco argues that if they sold a defective, unhealthy product, it was
partly because they relied on government advice regarding which tobacco to sell.

In negligence terms, they are claiming that the government was careless in the advice
provided about what tobacco to grow. The question then becomes whether the government
owed them a duty of care in these circumstances. This depends on the nature of the
decision: was it a policy decision or the execution of a policy? The distinction is crucial when
imposing duties of care on governmental agencies. The decision is considered a policy
decision, meaning no duty of care is owed.

This argument is similar to the one seen in Cooper v. Hobart, which we will revisit when
discussing public authority liability. We will examine two well-known cases next, and then I
will pause, as my voice is starting to give out and there is much to discuss. I was given ample
time, but speaking about the process...

On the other side of the floor, there's an important figure, Tim Divine. The first time I saw
him, I was impressed. If I'm not here next week, you'll know why—I let his secret out. He
was actually quite a good singer, albeit with cheesy taste. I recall he sang Beau Dommage
once in class. He's a man of a certain age, so he's not going to be singing Beyoncé. Is he in a
band? I don't know. You could ask him, but he might not want to say. He clearly enjoys
singing, though. Think guitar, kind of folky style. Did I mention he's of a certain age?
Now, back to more serious matters, specifically the Paul Scrapp case. It's one of the more
famous cases involving the law of negligence. It's so well-known that someone even made a
Lego version of it on YouTube. While not entirely accurate, you have to admire the effort.

In the Paul Scrapp case, the plaintiff was standing on a platform at the defendant's railway
station. She was on one side, similar to being at a metro station, with platforms on each side
and trains running in the middle.

A train arrives on the opposite side, and two men attempt to catch it at the last moment.
They manage to board the train, but only with the help of a railway employee who pushes
them onto the stairs. In the process, one of the men drops a package wrapped in brown
paper. The package, which appears unremarkable, falls onto the railway tracks and shortly
thereafter explodes, causing a commotion at the station.

Despite being far from the explosion, the plaintiff claims to have suffered an injury,
including the development of a stutter. To recover damages for negligence, the plaintiff
must establish that the defendants owed her a duty of care. The two men carrying the
package would likely owe such a duty, as the package contained fireworks, which are
inherently dangerous. The legal definition of inherently dangerous is satisfied by the nature
of fireworks, which can cause foreseeable harm. Therefore, anyone carrying such an item
has a duty of care to those who might be affected by it.

Certainly, let's refine the text for clarity and coherence:

So, you might think it falls within the standard of a reasonable person to carry a box full of
fireworks carelessly in a public place. A reasonable person would not do such a thing. Is that
reasonable? The problem is, if I consider myself a reasonable person, I wouldn't do that.
Perhaps I'm too cautious to leave a box there. The rule suggests it's worth providing
feedback. Are we clear on this?

I also understand that everyone agrees the government has the right to act as a citizen, to
run for federal or private sector office, and to be part of a development team for a new
project. What's the issue? First, you must demonstrate that the railway company owes a
duty of care. On one level, it's obvious they owe a duty of care. If you enter a railway station
they control, don't they owe you a duty of care? Certainly, right? It's not implausible.

The debate then becomes: if they owe you a duty of care, what does that entail? Remember,
the duty of care must be foreseeable. I owe you a duty to ensure you are not injured in a
foreseeable way by my actions. What actions are in question here? The railway employee
pushing the train. Exactly. So, the employee pushed it. Given that the fireworks were in a
nondescript box, is it foreseeable that pushing you into the train would cause the station to
explode, injuring you on the other side? Stated that way, it's not obvious.

This is the insight of the Palsgraf case, which is the majority's position. It doesn't make
sense to ask if I owe you a duty of care without considering the specific relationship. Even
within a relationship, I might owe you duties of care for some things but not others, as some
are too remote or unforeseeable. That's the majority's insight. The dissent argues that if you
owe a duty of care, it doesn't matter how the injury occurs; it only matters that it happened
within that relationship, making you liable.

If you don't see the dissent's point, that's fine. We'll revisit it when we discuss causation.
Understanding causation law changes will clarify this. Let's focus on the majority opinion.
The majority judgment, a famous case, was written by Chief Justice Benjamin Cardozo, a
highly influential common law judge in the U.S. during the early 20th century. He served on
New York's appellate courts and briefly on the U.S. Supreme Court.

What does he say? In paragraph two of his reasoning, he states that the conduct of the
defendant's guard, if wrong in relation to the package holder, was not wrong in relation to
the plaintiff standing far away. For her, it was not negligence. Nothing in the situation
indicated that the falling package posed a danger to distant persons. That's the
foreseeability point. Negligence is not actionable unless it involves invading a legally
protected interest or violating a right. Proof of negligence "in the air," so to speak, is
insufficient. Negligence is a breach of a pre-existing right. If I don't owe you a right, I might
be careless, but it's not actionable against you.

In paragraph four or five, the author clarifies that negligence, like risk, is a relational term.
Negligence, when considered in the abstract and detached from related circumstances, is
not inherently a tort, if it is even comprehensible. The law of causation, whether remote or
proximate, is irrelevant to the case at hand. The question of liability precedes the question
of the extent of consequences associated with that liability. The focus is on the relationship
between the parties before determining if a duty of care exists. In this context, it involves an
employee versus another individual at a distance. The question regarding this relationship
is whether the act of pushing was negligent. The answer is no, as it was entirely
unforeseeable that this act would pose a risk to the plaintiff.

Justice Andrews offers a different perspective, defining negligence as an act or omission that
unreasonably affects the rights of others or unreasonably protects oneself from the dangers
resulting from such acts. Noticeably absent from his definition is a strict sense of
relationship. He suggests that everyone has a duty to the world at large to refrain from acts
that may unreasonably threaten the safety of others. This duty extends beyond those who
might reasonably be expected to be harmed to include anyone who is actually injured, even
if they are outside what is typically considered the danger zone. In this broader context, the
question of reasonable foreseeability is less relevant, as the mere fact of injury can be
objected to.

Regarding proximity, Justice Andrews argues that it has little substantive content. He
describes proximate cause as a concept shaped by convenience, public policy, and a rough
sense of justice, where the law arbitrarily stops tracing a series of events beyond a certain
point. This is not a matter of logic but of practical politics.

The debate centers on the idea that, before considering the relationship between the
parties, one must also consider the nature of the risk involved. Some risks may warrant a
duty of care, while others may not.

The final case discussed is an illustration from England, Hoy (or Hay) v. Bruhill v. Young, a
1943 House of Lords case. This case is significant due to the nature of the injury claimed,
which was psychiatric rather than physical. The issue is whether this changes the analysis.
Before addressing this, the primary question is whether there was a duty of care. The facts
are as follows: a woman is standing at a bus stop in a square area. As the bus arrives, a
defendant is riding a motorcycle in one direction on a street leading into the small town.

He's riding very fast, which is essentially careless. The problem is that because of his speed,
he doesn't notice an oncoming vehicle. I can't recall if it's a car or a truck, but that's not
important. What happens next is that the defendant collides with the vehicle and,
unfortunately, is killed. Since he was speeding on a motorcycle, I suspect he wasn't wearing
a helmet. That's often the case with motorcyclists, right? If you wanted safety, you'd take the
bus; if you wanted adventure, you'd ride a motorcycle. So, he dies. Meanwhile, she's there,
with a bus in front of her, when she hears a loud noise and people screaming, "Oh my God,
did you see it?" She only heard the incident, not witnessed it, yet claims that hearing and
experiencing it caused her psychiatric injury. Consequently, she sues the estate of the
deceased, arguing that his carelessness in the accident caused her psychiatric injury. These
cases happen frequently. There's the famous Quebec case involving Bell Helicopters, where
a man was decapitated, and the helicopter company sued for the damage to their helicopter.
Because he was careless, he stuck his head out and damaged the blades. Needless to say,
they sued his estate. That's an exceptional case, and I don't think there's a claim for
psychiatric injury there.

The first question before considering liability is whether he owed her a duty of care. When
riding a motorcycle, do you owe a duty of care to those around you? Possibly. But do you
owe a duty of care to avoid having a gruesome death that might cause them psychiatric
injury? Maybe not. This is the basic point that Lord Wright makes in the House of Lords. He
states that the general concept of reasonable foresight as a criterion of negligence or breach
of duty may be too vague. Negligence is a fluid principle that must be applied to diverse
conditions and problems of human life. It is a concrete, not abstract, idea and must be fitted
to the facts of a particular case. As Willis defined it, negligence is the absence of care
according to the circumstances and is always relative to the individual affected. This raises a
serious additional difficulty in cases where it must be determined not only whether the act
itself was negligent against someone but also whether it was negligent concerning the
plaintiff. So, was the motorcycle rider negligent?

Was the motorcycle negligent towards the plaintiff? No. This is a crucial point in cases
involving nervous shock. In the present case, John Young was certainly negligent in his
dealings with the owner of the car he collided with. However, whether he was negligent
towards the appellant is another question. Terms like derivative, original, primary, and
secondary have been used to define and distinguish types of negligence. If the appellant has
a cause of action, it is due to a wrong done to her, not to someone else. Her interest in her
own bodily security was different from the interest of the car owner. Therefore, I cannot
accept that John Young, or a reasonable hypothetical observer, could have foreseen that
someone in the appellant's position would be affected as she was. In my opinion, John
Young did not breach any duty to the appellant and is not legally responsible for the harm
she sustained.

I should add that whether a duty exists is a question for the court, but it depends on the
interpretation of the facts. Lord Porter, like Justice Cardozo, emphasizes that in civil actions,
negligence cannot exist in the abstract. There must be a failure to exercise care towards a
person to whom the defendant owes a duty of care. This duty is not owed to the world at
large but must be assessed with reference to each complainant. If none of them were in a
position where physical injury could reasonably be anticipated, then typically, no duty
would be owed.

One reason for the reluctance to impose a duty of care in this case is the nature of the injury.
The risks from the same event might differ for different individuals, leading to different
kinds of injuries and, consequently, different duties of care. Let's stop here. At the beginning
of the next session, I will briefly recap the summary of this class, discuss Dobson, and then
move on. Thank you very much.