C13 Cases

Front 1

Blyth v. Birmingham Water Works:

Back 1

- Definition of Negligence
- Still relevant today
- Negligence is the omission to do something which a reasonable person guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable person would not do

Hint 1

Negligence

Front 2

Arland v. Taylor

Back 2

- Definition of a reasonable person
- Mostly described terms of what a reasonable person is not yet powerfully puts forward the idea of the standards we might associate with the ordinary person
- Stated positively, this created is a usual person, an ordinary human being, of ordinary skill, of ordinary intelligence and having ordinary foresight

Hint 2

Reasonable Person

Front 3

Carriss v. Buxton

Back 3

- Contractual entrant enters onto premises under a contract with the occupier (hotel guest or theatre goer)
- Contract may state obligations relating to the entrant’s safety
- If so, the contract governs. If not, the contract is said to have an implied (unwritten) term to the effect that the premises are as safe for the purpose as reasonable care and skill on the part of anyone can make them
- This implied contractual term amounts to the occupier’s duty to the entrant

Hint 3

Contractual Entrant

Front 4

Polemis and Furness Withy & Co. Ltd.

Back 4

- A wooden plank was negligently dropped into the hold of a ship causing a spark to ignite gas vapors in the hold resulting in the complete destruction of the ship
- The charters (Furness Withy & Co Ltd) were held liable even though the fall of the plank could not have been expected to destroy the ship

Hint 4

Foreseeability

Front 5

Overseas Tankship (UK) Ltd. v. Morts Dock and Engineering Co

Back 5

- The Polemis decision was overruled in 1961 by the Privy Council in the Overseas Tankship v Morts Dock on appeal from the Australian courts
- In this case, fuel oil was spilled onto the water and spread a considerable distance from the ship, the Wagon Mound, from which it had been negligently emitted
- Expert opinion was that it was highly unlikely that fuel oil floating on the water could be ignited, consequently, the plaintiffs (using blow torches)continued repair work on a wharf despite the presence of fuel oil in the water below
- By freak circumstance, cotton waste floating in the oil was ignited by the sparks, causing considerable damage to property
- The Privy Council held that it was not reasonably foreseeable that such circumstances would arise and, therefore, despite their negligence, the defendants were not liable.

Hint 5

Wagon Mound Case

Front 6

R. in Right of Canada v. Saskatchewan Wheat Pool

Back 6

- the Supreme Court of Canada set out the rules to follow in order to prove a negligence claim based on the breach of a statute in R. in Right of Canada v. Saskatchewan Wheat Pool which follow:
1. the statute must have been breached
2. the conduct which was a breach of the statute must also have caused the damage  for which compensation is sought
3. the statute must have been intended to prevent the damage which occurred
4. the person making the claim must be among the group which the statute was intended to protect  
- However, even though a defendant may have complied with a statute does not mean necessarily that it is a defense to a claim for negligence

Hint 6

Proving Negligence based on Breach of Statute

Front 7

Rylands v. Fletcher

Back 7

- Strict Liability permits a tort action to succeed against an occupier without having to prove negligence for unintended harm
- Rylands v Fletcher, strict liability was imposed on a n occupier who brought dangerous things onto the premises that later escaped and damaged adjoining property
- The plaintiff must show the following:
- The occupier used the land in a way that changed its natural form or use
- The occupier brought something onto the land that was likely to do mischief if it (a potentially dangerous thing) escaped
- The escape of the dangerous thing did occur
- The escape resulted in damage to the plaintiff

Hint 7

Strict Liability for Occupiers

Front 8

Venoit v. Kerr-Addison Mines Ltd.

Back 8

- Occupier must treat the trespasser with common humanity
- Venoit v Kerr-Addison Minds the Supreme Court of Canada set out a list of factors to consider in determining whether an occupier’s duty to trespass had been breached:
- Gravity of the probable injury
- Likelihood of the probably injury
- Character of the intrusion or trespass
- Nature of the premises trespassed upon
- Knowledge the occupier had
- Or ought to have had of the likelihood of a trespasser’s presence
- Cost to the occupier of preventing the harm

Hint 8

Occupier’s Duty of Care - Trespassers

Front 9

Bux v. Slough Metals Ltd.

Back 9

- Defendants must prove that there was no negligent conduct, even when there has  been compliance with applicable statutes
- For example, an employer who is required by statute to provide employees with safety goggles and does so but knows that the employees rarely use them, will likely be found negligent when an employee suffers an eye injury

Hint 9

Denial

Front 10

Palsgraf v. Long Island Railroad Co (leading case on this defense)

Back 10

- Was the plaintiff a “foreseeable plaintiff”?
- This question is asked to show whether an obligation to take care to avoid conduct which might injure or cause the plaintiff to suffer damage is in effect
- In Palsgraf, the defendant’s guard knocked a package of fireworks from the arm of a man being helped to board a departing train
- The fireworks exploded, knocking over  scale, which injured the plaintiff
- She was denied recovery on the grounds that she was beyond the range of foreseeable danger

Hint 10

No Duty Owed

Front 11

Ryan v. Youngs

Back 11

- The theory of defense for inevitable accident places the onus on a defendant to show that the cause and result of the accident were inevitable. It must be shown that the damages arose form an outside cause of which the defendant had no control
-  Mr. Youngs suffered a heart attack while he was driving his car. The car went out of control and caused injury to a third party, Mr. Ryan. Mr. Youngs’ medical history revealed he did not have  a heart condition of any kind nor did he have any warning that this would happen. Mr. Youngs succeeded in defending his position citing inevitable accident.

Hint 11

Inevitable Accident

Front 12

Telfer v. Wright

Back 12

- Mr. Wright suffered a dizzy spell while driving. He stopped his car for a short while and then started it again. He drove off and then blacked out completely. He lost control of his car and collided with Mr. Telfer
- But six months earlier, Mr. Wright had suffered the same symptoms. He knew or should have known that it was not safe for him to drive. A driver who is aware he suffers from a disability must take necessary precautions to avoid causing an accident. Under the circumstances, Mr. Wright was judged to be negligent  and his plea of inevitable accident was not successful.

Hint 12

Inevitable Accident

Front 13

Waldick v. Malcolm

Back 13

- The defense of volenti will not be successful unless it passes a two-step test
1. Proving the plaintiff had knowledge of the risk
2. Proving the plaintiff waived his legal right to make a claim.
- In Waldick v. Malcolm the Appeal Court of Ontario held that a person must not only know about the risk and physically assume it but also must waive the rights of any legal claim in the event of injury.
- The defendant’s argument that knowledge of the risk itself constitutes a defense was rejected
- Unless it can be proven that the plaintiff had not only  accepted the physical risk but also the legal risk, pursuing this as a defense is not likely to be successful.
- However, occupier’s liability legislation in certain categories deems that persons have willingly assumed any associated risks. In Ontario a volenti defense will succeed in the following circumstances outlined in the Occupiers Liability Act:
- Rural premises that are used for agricultural purposes including land under cultivation, orchards, pastures, woodlots and farm ponds
- Vacant or underdeveloped premises
- Forested wilderness premises
- Golf courses when not open for playing
- Utility rights of way and corridors excluding structures located thereon
- Unopened road allowances
- Private roads reasonably marked by notice as such
- Recreational trails reasonably marked by notice as such
- In Ontario and the other provinces with similar occupier’s liability statutes, the considerations raised by the volenti defense at common law are no often raised as contributory negligence

Hint 13

Voluntary Assumption of Risk

Front 14

Banque Nationale due Canada v. Houle

Back 14

- The notion of Abuse of Right applies generally to extra-contractual and contractual matters
- It might be considered as establishing a general standard of care limiting how you can treat people
- In Banque National v Houle, the bank was secured creditor of a company whose stockholders were, to the knowledge of the bank, negotiating the sale of their shares to a third party
- The bank called back the loans, took possession of the company’s assets and sold the assets within three hours of taking possession
- Consequently, instead of paying $1million for the shares, the third party only paid $300,000
- The Supreme Court held that although the bank was allowed contractually to act as it did, its actions were unreasonable under the circumstances and the actions were judged to be extra-contractual fault
- Consequently the bank was held liable for the drop in value of the shares

Hint 14

Abuse of Right