You have become the founding member of a new law firm. You’ve set up shop, hired some junior partners and are ready to go to work. After a savvy advertising campaign, ten people have come through your doors for an initial consult. You will need to choose five of these ten potential cases and provide a minimum one-page memo/letter for each on the possibilities of a successful lawsuit. Each memo needs to address issues specific to each case (they are mentioned at the end of each case). You do not necessarily have to choose a case where the likelihood of a successful lawsuit is high, you may choose a case and indicate to that client that they should not proceed with a lawsuit. In that instance you will need to indicate why they will not be successful in litigation. Don’t forget that your memos to your clients should be on that snazzy new office letterhead, seeing that it’s your own company and all.
This project involves letters to potential clients. You can find tips on plain language legal writing from the Canadian Bar Association. Plain language legal writing refers to legal writing that is well thought-out, well organized, and understandable to the client without interpretation: the language is clear, the legal concepts are explained and the technical terms are defined.
For your Information, the professional code of conduct (ethics) for the BC Law Society states, it is a lawyer’s duty to:
You'll need to take a look at the main differences between civil and criminal law.You can find more on the differences between criminal and civil law at: Diffen or OttoGraph and you can find out more about Civil Procedures at Canada's Department of Justice or the Courts of British Columbia.
You should become familiar with the Thornton et al. v. Board of School Trustees of School District No. 57 (Prince George) et al. (1978) case together (kind of an important case for non-pecuniary loss in Canada). You should also become familiar with Donoghue v. Stevenson Donoghue v Stevenson [1932] A.C. 562, [1932] UKHL 100, 1932 S.C. so to help
The Donoghue v. Stevenson case relates to the concept of "reasonable foreseeability" and the elements the court should look at when deciding what is “reasonably foreseeable”. In Donoghue v. Stevenson CB 277 (snail in ginger beer) - you must take care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour (opened up manufacturer's liability) and your neighbours are persons who are so closely and directly affected by your act, that you ought to reasonably have them in contemplation of being so affected
Why is Tort Law important? Seinfeld mocked it. Letterman ranked it in his top ten list. And more than fifteen years later, its infamy continues. Everyone knows the McDonald’s coffee case. It has been routinely cited as an example of how citizens have taken advantage of America’s legal system, but is that a fair rendition of the facts? Take a look below to see what really happened to Stella Liebeck, the Albuquerque woman who spilled coffee on herself and sued McDonald’s.
In the case of Liebeck v. McDonald’s Restaurants (1994), 79-year-old Stella Liebeck spilled McDonald’s coffee in her lap, which resulted in second- and third-degree burns on her thighs, buttocks, groin, and genitals. The burns were severe enough to require skin grafts. Liebeck attempted to have McDonald’s pay her $20,000 medical bills as indemnity for the incident. McDonald’s refused, and Liebeck sued. During the case’s discovery process, internal documents from McDonald’s revealed that the company had received hundreds of similar complaints from customers claiming that McDonald’s coffee caused severe burns. At trial, this led the jury to find that McDonald’s knew their product was dangerous and injuring their customers and that the company had done nothing to correct the problem. The jury decided on $200,000 in compensatory damages, but attributed 20 percent of the fault to Liebeck, reducing her compensation to $160,000. The jury also awarded Liebeck $2.7 million in punitive damages, which, at the time, represented two days’ of McDonald’s coffee sales revenue. The judge later reduced the punitive damages to $480,000. The case is often criticized for the very high amount of damages the jury awarded. Your textbook states: Many Canadians regard civil suits like Stella Liebeck’s as frivolous (silly or wasteful). What do you think?
Consider this story...An Ohio man, Arnold Black, a 48-year-old black man from Maple Heights, sued East Cleveland after he was stopped by police in 2012 for suspected drug activity, handcuffed, left locked in a closet for four days without food, water or access to a bathroom and beaten so severely that he suffered memory loss and required brain surgery was awarded $22 million in court.
Or this story where a B.C. judge has awarded a disabled 16-year-old more than $5.2 million in damages after finding her cerebral palsy was the result of the failures of a nurse and doctor involved in her delivery.
Some notes and things to help you understand concepts...
Civil Cases and Trial Procedures
For any civil case to proceed you need a “cause for action” (Negligence, Intentional Tort, Strict Liability) = a civil wrong. Who is responsible for the “cause for action” = Defendant and who the damage was done to = Plaintiff. Responsibility is determined on a “balance of probabilities” (more probable than not) and more than one person can be responsible = “liable”. The people involved in a lawsuit are called “litigants” and you may NOT sue someone under the age of majority (that means under the age of 19). You may sue a “next friend” of a minor (parents). The burden of proof is on the Plaintiff in civil cases.
The best scenario is an “out of court settlement” = where litigants (Plaintiff & Defendant) negotiate an agreement out of court and then file the decision with the court.
Damages
Compensatory Damages - Compensation in tort law is based on the principle of restitutio in integrum. The purpose is to restore the Plaintiff, in so far as money can do, to the same position as if no tort had been committed and, where the person has died, their dependents should be compensated for their loss. Family Law Act, pg. 716 states "when death occurs family are entitled to recover their pecuniary loss (within 2 years)". Compensatory Damages entitles the Plaintiff to be compensated for their pecuniary (you can peg an exact dollar value to) and non-pecuniary (cannot peg an exact dollar value to) losses arising from the Defendant’s tort.
Compensatory damages are divided into Special and General damages. Special Damages include: Pre-trial pecuniary losses incurred by Plaintiff which includes lost income, nursing and personal attendant costs, medical expenses and consequential expenses. General Damages include: Future losses resulting from Defendant’s tort. A Plaintiff may be compensated for three heads of damages under general damages: (1) Inability to work; (2) future care cost; and (3) non-pecuniary losses. Each item of damage must be separately considered and compensated for.
This section is adapted from:
The History and Treatment of Damages in Canada
Patricia J. Armstrong
Lindsay LLP
Damages in British Columbia Tort Claims: What You Need to Know
Preszler Law Firm
General Damages - (3) Non-Pecuniary Loss
In contrast to the relative ease with which pecuniary damages can be determined, non-pecuniary damages compensate for those consequences of an injury that, although real, are not so easily quantified. These types of damages tend to relate to a person’s subjective experience of an injury, which, of course, are not accompanied by an invoice or receipt. In Canada, the factors which are analyzed to determine an appropriate award are: 1) the plaintiff’s age, 2) the nature of the injury, 3) the severity and duration of the pain, 4) the level of the disability, and 5) the loss of lifestyle or impairment of life (Stapley v. Hejslet, 2006 BCCA 34 at para. 46).
Perhaps the best-known type of non-pecuniary damages are damages for pain and suffering, which seek to compensate an injured person for having to experience pain as the result of the injury.
Other types of non-pecuniary damages include: Disfigurement; Loss of expectation of life; and Loss of amenities of life.
In fixing the amount of such damages in British Columbia, courts consider past awards in similar cases, considering the type of injury, age of the injured person, and other relevant circumstances (see above).
Limits on Non-Pecuniary Damages in British Columbia
When many people think of “pain and suffering” damages, they think of the extremely high damage awards often made in the United States. But here in Canada, the Supreme Court of Canada has long imposed an upper limit on pain and suffering and other non-pecuniary damages.
In the late 1970s, the Supreme Court of Canada decided a trilogy of cases in which it established a cap on non-pecuniary damages. On January 19, 1978, the Supreme Court of Canada tackled this issue head-on by ruling on a trilogy of cases to limit the maximum amount of non-pecuniary damages a plaintiff could receive in a civil action (Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 (SCC) [Andrews]; Thornton v. School District No. 57 (Prince George) et al., [1978] 2 S.C.R. 267 (SCC) [Thornton]; and Arnold v. Teno, [1978] 2 S.C.R. 287 (SCC) [Arnold]) (the “Trilogy”). As the Court explained (emphasis added):
Justice Dickson for the Supreme Court of Canada imposed a conservative upper limit on non-pecuniary damages:
Note, however, that this upper limit is only available in the worst of injury cases. For example, in two of the cases in which the Court first developed that limit, the plaintiffs were young adults who had become paralyzed from the neck down. In the average B.C. tort claim, plaintiffs should anticipate an award of non-pecuniary damages well below the cap. Non-pecuniary damages were meant to provide a substitute for loss of amenities and to make the plaintiff’s life more bearable. Damages may be awarded in other headings to provide equality in the amount of compensation a plaintiff receives in a negligence case.
In D.S. v. Quesnelle (2019) ONSC, the Ontario Superior Court held that the cap on general damages of $100,000 set by the "trilogy" Supreme Court of Canada cases did not apply to intentional torts.
Non-Compensatory Damages include: Punitive Damages which are appropriate where the Defendant’s misconduct was so malicious, oppressive and highhanded. Their Purpose? Punishment and deterrence. Nominal Damages are small amounts of money awarded when the plaintiff has successfully established a cause of action but has suffered no substantial loss or is unable to prove what that loss is. Their purpose? Vindication of the Plaintiff’s rights and a minor deterrence to the Defendant.
This section is adapted from:
The History and Treatment of Damages in Canada
Patricia J. Armstrong
Lindsay LLP
Generally, punitive damages are imposed in rare circumstances where there has been high-handed, malicious, arbitrary or highly reprehensible misconduct that departs markedly from ordinary standards of decent behaviour. Their purpose is not to compensate the plaintiff, but to give the defendant his or her just dessert (retribution), to deter the defendant and others from similar misconduct in the future (deterrence), and to mark the community’s collective condemnation (denunciation) of what has happened. Currently, the range for punitive damages in Canada is between $50,000 to $1 million. Most cases, however, fall within the $100,000 to $200,000 range (see Clarfield v. Crown Life (2000), 23 C.C.L.I. (3rd) 266 (Ont. S.C.J.), Kogan v. Chubb (2001), 27 C.C.L.I. (3rd) 16 (Ont. S.C.J.), Fidler v. Sunlife, 2004 BCCA 273, Fernandes v. Penncorp Life Insurance Company, 2013 ONSC 1637).
In Canada, aggravated damages are awarded to compensate a party for the mental distress experienced from another party’s misconduct or misbehaviour. Aggravated damages cover intangible injuries such as mental distress, pain, anguish, grief, anxiety, vexation, humiliation, indignation, outrage, wounded pride, damaged self-confidence or self esteem, loss of faith in friends or colleagues, and other similar matters. As no Supreme Court of Canada case has ruled on aggravated damages in bad faith claims, the damages are specific to the provinces and vary in range. In provinces such as British Columbia, the highest award has only been $35,000 (Asselstine v. Manulife, 2005 BCCA 292). On the other hand, a recent 2013 Ontario case awarded $100,000 in aggravated damages on a disability insurance claim (Fernandes v. Penncorp Life Insurance Company, 2013 ONSC 1637). Currently, the typical range for aggravated damages in Canada is $10,000 to $100,000 but most of the awards fall on the lower end of the spectrum.
As the numbers currently stand in Canada, the upper limit for non-pecuniary damages is approximately $360,000. The range for aggravated damages is between $10,000 and $100,000, and the range for punitive damages is between $50,000 and $1 million.
Enforcing Judgments – The liable Defendant must have $, assets, a job that pays wages. There are 3 ways that you can receive payments:
Negligence
This is an unintentional or an intentional civil wrong (tort). Negligence is the most common civil tort (inattention, carelessness, and the possibility of harm) and there are 4 components to the “Test for Negligence:
1. Did you have a responsibility to someone?
2. Did you fail in your responsibility-How?
3. Did you cause them harm?
4. Did the suffer an actual loss?
Conduct is negligent if it creates an objectively unreasonable risk of harm.
To avoid liability, a person must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances.
The measure of what is reasonable depends on the facts of each case, including
• the likelihood of a known or foreseeable harm,
• the gravity of that harm, and
• the burden or cost which would be incurred to prevent the injury.
In addition, one may look to external indicators of reasonable conduct
• such as custom,
• industry practice, and
• statutory or regulatory standards
Defenses for Negligence
The best defense is no duty of care. Another defense is that the Defendant actually met the Standard of Care expected. Other defenses include no actual loss or harm to the Plaintiff and…
1. Contributory Negligence – if the Plaintiff and Defendant are both negligent then damages can be split between them. In this the Defendant must establish that the Plaintiff was partially at fault
2. Voluntary Assumption of Risk – This implies that you accept factors that may lead to harm or injury. This means you assume risk. The Defendant must prove that the Plaintiff clearly knew the risk involved in their actions and chose to assume it. Waivers – are not always enforceable The Defendant must establish that the Plaintiff made a conscious decision to sign the waiver and knew what it implied.
Motor Vehicles, Vicarious Liability & Occupier’s Liability
In the context of B.C. motor vehicle accidents, a tort claim is a claim that another person was at fault in causing the accident and should be required to compensate an injured person for his or her injuries. Such claims are covered by the third-party liability provisions of ICBC’s Basic Autoplan.
The driver of the vehicle is liable for all passengers in the vehicle – if passenger enters vehicle and assumes risk (VAR- voluntary assumption of risk) then no liability exists for driver to passenger.
Vicarious liability – a Defendant is held liable for another person’s tort even though they may have done nothing wrong. Companies are liable for their employees’ actions through vicarious liability (as are parents for their children)
Occupiers Liability – An occupier is someone who is in control of property. You have a duty of care to ensure that your property is safe for others. The occupier should be able to foresee any harm and mitigate it. There are three classes of people who occupiers are liable to:
Take some time to review invitees, licencees, and tresspassers for occupiers' liability (which is relevant for cases 1, 2, 3, 4, 5, and 8). The Insurance Bureau of Canada has a great webpage to help with Occupier's Liability called Slip/Trip and Fall. On this site it indicates:
As an occupier, you and/or your organization are required to keep areas such as aisles, stairs, ramps, walkways, driveways and parking lots reasonably safe for persons who are using them. Some common hazardous conditions include:
Occupiers Liability Act [RSBC 1996] Chapter 337
Products Liability Act
Doing Business in Canada (Product Liability)
Family Compensation Act [RSBC 1996] Chapter 126
Host Liability - Commercial Hosts have a specific duty of care to their patrons so that they do not harm themselves from consuming alcohol. How to control patron’s alcohol intake:
The Duty of Care for the commercial property exists through their patron’s to anyone who that patron’s come into contact with (third parties) Social Hosts have a specific duty of care to their licensees (where alcohol is served but there is no financial benefit) – there is also third party liability here…
In the text there are some important sections involving "liability" for businesses and social guests on pages 406-410 (Occupiers' Liability: general invitees; commercial and social host invitees; licensees; trespassers; and the Occupiers Liability Act). These topics are relevant to all cases except for Case 7. From the Canada Safety Council dealing with Social Host Liability:
It is important for every social host to consider the consequences involved with the service of alcohol because there will continue to be lawsuits. The social host could be found to have a duty of care to guests and all those who are at risk due to the intoxication of the guests for events that could be foreseeable. Further, the host has a duty to monitor and supervise the service and consumption of alcohol during a party or event. The best course is to take risk management measures. The social host should check his or her insurance to determine if there is coverage for any incident that may occur on the property or as a result of actions from the property. When hosting a party, plan appropriately. This includes:
For more on the BC Liquor laws (pertaining to case 5) check out the
Serving It Right information here or for information on liquor law basics here.
BC Liquor Control and Licensing Act [RSBC 1996] Chapter 267
43 (1) A person must not sell or give liquor to an intoxicated person or a person apparently under the influence of liquor.
(2) A licensee or the licensee's employee must not permit
(a) a person to become intoxicated, or
(b) an intoxicated person to remain in that part of a licensed establishment where liquor is sold, served or otherwise supplied.
Liability of officer of corporation
77 If an offence under this Act is committed by a corporation, the officer or agent of the corporation in charge of the establishment in which the offence is committed is deemed to be a party to the offence and is personally liable to the penalties prescribed for the offence as a principal offender but nothing in this section relieves the corporation or the person actually committing the offence from liability for it.
Liability of occupant of establishment
78 On proof that an offence under this Act has been committed by
(a) a person employed by the occupant of a house, shop, restaurant, room or other establishment in which the offence is committed, or
(b) a person permitted by the occupant to be or remain in or on that house, shop, restaurant, room or establishment, or to act in any way for the occupant, the occupant is deemed to be a party to the offence and is liable as a principal offender to the penalties prescribed for the offence, even though the offence was committed by a person who is not proved to have committed it under or by the direction of the occupant but nothing in this section relieves the person actually committing the offence from liability for it.
For your project, there are a few things you should know about helping people in distress or need:
Lowering the Standard of Care
A. Emergency
1) The Emergency Medical Aid Act
2. If, in respect of a person who is ill, injured or unconscious as the result of an accident or other emergency,
(a) a physician, registered health discipline member, or registered nurse voluntarily and without expectation of compensation or reward renders emergency medical services or first aid assistance and the services or assistance are not rendered at a hospital or other place having adequate medical facilities and equipment, or
(b) a person other than a person mentioned in clause (a) voluntarily renders emergency first aid assistance and that assistance is rendered at the immediate scene of the accident or emergency, the physician, registered health discipline member, registered nurse or other person is not liable for damages for injuries to or the death of that person alleged to have been caused by an act or omission on his part in rendering the medical services or first aid assistance, unless it is established that the injuries or death were caused by gross negligence on his part.
NOTE: This does not provide immunity but lowers the standard of care and protects rescuers up to gross negligence
GOOD SAMARITAN ACT [RSBC 1996] CHAPTER 172
Section 1: No liability for emergency aid unless gross negligence
Section 2:Exceptions
Section 3:Health Care (Consent) and Care Facility (Admission) Act
No liability for emergency aid unless gross negligence:
1 A person who renders emergency medical services or aid to an ill, injured or unconscious person, at the immediate scene of an accident or emergency that has caused the illness, injury or unconsciousness, is not liable for damages for injury to or death of that person caused by the person's act or omission in rendering the medical services or aid unless that person is grossly negligent.
Exceptions
2 Section 1 does not apply if the person rendering the medical services or aid
(a) is employed expressly for that purpose, or
(b) does so with a view to gain.
Health Care (Consent) and Care Facility (Admission) Act
3 The Health Care (Consent) and Care Facility (Admission) Act does not affect anything in this Act.
COMMON LAW: The Duty To Assist
As a general principle, common law does not require a bystander to help someone in peril - the priest and the Levite would not be liable for failing to assist the stranger. Common law jurisdictions generally rely on inducements - the carrot and stick approach - to persuade citizens to aid others by minimizing risk to themselves. However, several exceptions exist where failure to act could result in both civil and criminal liability. A "special relationship" may give rise to a duty to assist. Such a relationship exists when, for example, one party derives an economic advantage from the other. An employer may be obligated to assist an employee injured at work. In an accident, common carriers must assist passengers, and innkeepers must aid their quests. Although the spectrum of special relationships has not yet been determined by the courts, the scope will likely expand as it has in the United States.
Another exception occurs when a person creates a situation placing another in danger. A negligent motorist who causes an accident involving injuries is liable if he or she does not provide assistance. In some circumstances, a person is assumed to have a duty to assist because of the nature of his or her job. Policemen and Firemen, not good Samaritans since it is their job to assist in an emergency. In general, a good Samaritan is not paid for rescuing people in danger.
Risks Of A Good Samaritan
In Legal theory, the bystander is safe as long as he or she does absolutely nothing. But as soon as steps are taken to help, immunity for failing to act is removed. If a bystander decides to act as a good Samaritan and chooses to intervene, he or she will be liable to the victim if rescue actions were unreasonable, and indeed aggravated the plight of the sufferer.
So long as nothing is done to worsen the situation, a good Samaritan can abandon the rescue effort and leave the scene. A point is reached, however, when someone who intervenes is considered to have assumed a legal duty to act, but the rule and limits have not been tested.
The good Samaritan probably runs greater risk of being held liable for personal injury or damage to property to a third party than to the victim. But the old common law defense of necessity protects a rescuer from liability for trespass if the individual enters another's property or uses others' goods necessary to save lives or protect property. A good Samaritan can break into a garage and seize an axe to save a stranger trapped in a burning car.
Rights Of A Good Samaritan
What happens when a good Samaritan suffers injuries or damage to his or her property as a result of responding to a call for help? Courts formerly considered that risk of loss or injury was voluntarily assumed. Today, the rights of a good Samaritan to claim compensation depend mainly on whether the emergency was caused by another's negligence or fault. If danger is caused by the victim, the good Samaritan can claim compensation from the victim. If a third party causes the situation, both rescuer and victim can recover damages from that person.
The Ogopogo Case
The case of Horsley v MacLaren, 1970, represents a controversial example of the right to compensation. A guest (Matthews) on a power boat (the Ogopogo) owned by the defendant (MacLaren) fell overboard into Lake Ontario. MacLaren tried to rescue Matthews but was unsuccessful. Meanwhile, the plaintiff Horsley (another guest) attempted to save Matthews but both men drowned. The court held that MacLaren had a duty to rescue Matthews because of a special relationship - a power boat operator owed a duty of protective care to the passengers - and if negligent, MacLaren would be liable to Matthews (or his dependents).
Horsley, on the other hand, was a good samaritan with no duty to rescue Matthews. His only recourse was against MacLaren and his right to compensation depended on whether MacLaren had been negligent to Matthews, which the Supreme Court found not to be the case. Since MacLaren was not liable to Matthews, he could not be liable to Horsley.
FYI:
Spraggs & Co. Should I Claim My Work Injury with WorkSafeBC or in a Personal Injury Lawsuit?
Worksafe BC The basics of making a claim
Worksafe BC What you need to know about benefits and lawsuits for injury, death, or disease in the workplace
Worksafe BC Critical Incident Response
Worksafe BC Workers compensation and Lawsuit basics
Some help regarding the baseball case can be found at City of Vancouver Standards of Maintenance By Law (look at section 5 Structural Conditions). Some help regarding the amusement park and ski resort cases can be found at SAFETY STANDARDS ACT [SBC 2003] CHAPTER 39 and at Safety Standards Act
SAFETY STANDARDS GENERAL REGULATION.
There are also things you should know about Professional Negligence and standard of care:
Reibl v. Hughes (1980, SCC)
The Court held that the actions of the doctor in this case were negligent. The relationship of doctor -patient gives rise to a duty for the doctor to disclose all material risks relationship to the recommended surgery. The Court held that the doctor failed to adequately communicate to the appellant the risks of the operation that he was to undergo. The doctor was negligent in leaving the patient with the opinion that he would be better off for having the operation. The doctor should have more clearly explained the incidences of mortality and the incidences of morbidity. He was also negligent in not making it plain to the plaintiff appellant that the operation would not cure his headaches. There was no neurological deficit that mandated the surgery. There was also no emergency that required the surgery
1. Lack of informed consent won't lead to liability for battery unless there is no consent at all, where there is fraud, or where the treatment went beyond the consent. However, negligence principles are to be applied.
2. modified objective test - relies on a combination of objective and subjective factors in order to determine whether the failure to disclose actually caused the harm of which the plaintiff complains. It requires that the court consider what the reasonable patient in the circumstances of the plaintiff would have done if faced w/ the same situation.
1st QUESTION: Whether the Dr. gave the warning?
2nd QUESTION: Would the patient have gone ahead anyway?
To succeed there are 3 steps:
1. Plaintiff must show that material risk existed
2. Plaintiff must show that material risk was not disclosed
3. Plaintiff must show that had risk been disclosed plaintiff would not have consented - prove using the subjective/objective test
Family Compensation Act [RSBC 1996] Chapter 126
Medical Malpractice Canada
Lawyers BC Medical Malpractice
John McKiggan Medical Malpractice Informed Consent (minors)
Intentional Torts
There are two main types of Intentional Torts:
1. Trespass to Person/Land – presence on another person’s body or property without consent. Person = assault and battery or false imprisonment (Assault – no offensive touching required – Battery – contact must be direct and it assumes fault on Defendant a.k.a. Defendant must prove they did not do action). False Imprisonment = wrongful or unauthorized confinement in a specific area.
2. Nuisance – a person’s unreasonable use of land so that it interferes with the enjoyment of use of adjoining land. Private & Public (public = pollution, blocking a highway, oil spills) Defamation of Character
Defenses to Trespass
• Consent (has to be established by Defendant) – a Defendant that can show willing consent from Plaintiff for actions can be excused from liability.
• Self Defense – force must be reasonable and necessary to prevent personal injury
• Defense of Others – 3rd party can come to the aid of another only in cases of immediate danger.
• Defense of Property – force must be reasonable and necessary but you MUST first ask the trespasser to leave
• Others? Legal Authority, Necessity
And don't forget if you're choosing to do three cases with a video for your law firm...you "Better call Saul"
For your Information, the professional code of conduct (ethics) for the BC Law Society states, it is a lawyer’s duty to:
- promote the interests of the state
- serve the cause of justice
- maintain the authority and dignity of the courts
- be faithful to clients
- be candid and courteous in relations with other lawyers
- demonstrate personal integrity.
You'll need to take a look at the main differences between civil and criminal law.You can find more on the differences between criminal and civil law at: Diffen or OttoGraph and you can find out more about Civil Procedures at Canada's Department of Justice or the Courts of British Columbia.
You should become familiar with the Thornton et al. v. Board of School Trustees of School District No. 57 (Prince George) et al. (1978) case together (kind of an important case for non-pecuniary loss in Canada). You should also become familiar with Donoghue v. Stevenson Donoghue v Stevenson [1932] A.C. 562, [1932] UKHL 100, 1932 S.C. so to help
The Donoghue v. Stevenson case relates to the concept of "reasonable foreseeability" and the elements the court should look at when deciding what is “reasonably foreseeable”. In Donoghue v. Stevenson CB 277 (snail in ginger beer) - you must take care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour (opened up manufacturer's liability) and your neighbours are persons who are so closely and directly affected by your act, that you ought to reasonably have them in contemplation of being so affected
Why is Tort Law important? Seinfeld mocked it. Letterman ranked it in his top ten list. And more than fifteen years later, its infamy continues. Everyone knows the McDonald’s coffee case. It has been routinely cited as an example of how citizens have taken advantage of America’s legal system, but is that a fair rendition of the facts? Take a look below to see what really happened to Stella Liebeck, the Albuquerque woman who spilled coffee on herself and sued McDonald’s.
In the case of Liebeck v. McDonald’s Restaurants (1994), 79-year-old Stella Liebeck spilled McDonald’s coffee in her lap, which resulted in second- and third-degree burns on her thighs, buttocks, groin, and genitals. The burns were severe enough to require skin grafts. Liebeck attempted to have McDonald’s pay her $20,000 medical bills as indemnity for the incident. McDonald’s refused, and Liebeck sued. During the case’s discovery process, internal documents from McDonald’s revealed that the company had received hundreds of similar complaints from customers claiming that McDonald’s coffee caused severe burns. At trial, this led the jury to find that McDonald’s knew their product was dangerous and injuring their customers and that the company had done nothing to correct the problem. The jury decided on $200,000 in compensatory damages, but attributed 20 percent of the fault to Liebeck, reducing her compensation to $160,000. The jury also awarded Liebeck $2.7 million in punitive damages, which, at the time, represented two days’ of McDonald’s coffee sales revenue. The judge later reduced the punitive damages to $480,000. The case is often criticized for the very high amount of damages the jury awarded. Your textbook states: Many Canadians regard civil suits like Stella Liebeck’s as frivolous (silly or wasteful). What do you think?
Consider this story...An Ohio man, Arnold Black, a 48-year-old black man from Maple Heights, sued East Cleveland after he was stopped by police in 2012 for suspected drug activity, handcuffed, left locked in a closet for four days without food, water or access to a bathroom and beaten so severely that he suffered memory loss and required brain surgery was awarded $22 million in court.
Or this story where a B.C. judge has awarded a disabled 16-year-old more than $5.2 million in damages after finding her cerebral palsy was the result of the failures of a nurse and doctor involved in her delivery.
Some notes and things to help you understand concepts...
Civil Cases and Trial Procedures
For any civil case to proceed you need a “cause for action” (Negligence, Intentional Tort, Strict Liability) = a civil wrong. Who is responsible for the “cause for action” = Defendant and who the damage was done to = Plaintiff. Responsibility is determined on a “balance of probabilities” (more probable than not) and more than one person can be responsible = “liable”. The people involved in a lawsuit are called “litigants” and you may NOT sue someone under the age of majority (that means under the age of 19). You may sue a “next friend” of a minor (parents). The burden of proof is on the Plaintiff in civil cases.
- Filing a claim – the first step is making a “Statement of Claim” (full name and address of plaintiff and defendant, the remedy being sought, and a brief explanation of the reason for the claim).
- Claim is delivered to Defendant “Claim Served”. The Defendant has 10 – 30 days to respond…
- The Defendant then can file a “Statement of Defence” (a legal doc that outlines the reason you disagree with the Plaintiff’s claim) – goes to Plaintiff and to court. The Defendant can “counterclaim” (stating that the Plaintiff is actually liable for damages). The Defendant can make a “third party claim” (another person who is partially or wholly liable). If Defendant doesn’t respond the court may issue a “default judgement” (the Plaintiff gets everything they asked for)
The best scenario is an “out of court settlement” = where litigants (Plaintiff & Defendant) negotiate an agreement out of court and then file the decision with the court.
Damages
Compensatory Damages - Compensation in tort law is based on the principle of restitutio in integrum. The purpose is to restore the Plaintiff, in so far as money can do, to the same position as if no tort had been committed and, where the person has died, their dependents should be compensated for their loss. Family Law Act, pg. 716 states "when death occurs family are entitled to recover their pecuniary loss (within 2 years)". Compensatory Damages entitles the Plaintiff to be compensated for their pecuniary (you can peg an exact dollar value to) and non-pecuniary (cannot peg an exact dollar value to) losses arising from the Defendant’s tort.
Compensatory damages are divided into Special and General damages. Special Damages include: Pre-trial pecuniary losses incurred by Plaintiff which includes lost income, nursing and personal attendant costs, medical expenses and consequential expenses. General Damages include: Future losses resulting from Defendant’s tort. A Plaintiff may be compensated for three heads of damages under general damages: (1) Inability to work; (2) future care cost; and (3) non-pecuniary losses. Each item of damage must be separately considered and compensated for.
This section is adapted from:
The History and Treatment of Damages in Canada
Patricia J. Armstrong
Lindsay LLP
Damages in British Columbia Tort Claims: What You Need to Know
Preszler Law Firm
General Damages - (3) Non-Pecuniary Loss
In contrast to the relative ease with which pecuniary damages can be determined, non-pecuniary damages compensate for those consequences of an injury that, although real, are not so easily quantified. These types of damages tend to relate to a person’s subjective experience of an injury, which, of course, are not accompanied by an invoice or receipt. In Canada, the factors which are analyzed to determine an appropriate award are: 1) the plaintiff’s age, 2) the nature of the injury, 3) the severity and duration of the pain, 4) the level of the disability, and 5) the loss of lifestyle or impairment of life (Stapley v. Hejslet, 2006 BCCA 34 at para. 46).
Perhaps the best-known type of non-pecuniary damages are damages for pain and suffering, which seek to compensate an injured person for having to experience pain as the result of the injury.
Other types of non-pecuniary damages include: Disfigurement; Loss of expectation of life; and Loss of amenities of life.
In fixing the amount of such damages in British Columbia, courts consider past awards in similar cases, considering the type of injury, age of the injured person, and other relevant circumstances (see above).
Limits on Non-Pecuniary Damages in British Columbia
When many people think of “pain and suffering” damages, they think of the extremely high damage awards often made in the United States. But here in Canada, the Supreme Court of Canada has long imposed an upper limit on pain and suffering and other non-pecuniary damages.
In the late 1970s, the Supreme Court of Canada decided a trilogy of cases in which it established a cap on non-pecuniary damages. On January 19, 1978, the Supreme Court of Canada tackled this issue head-on by ruling on a trilogy of cases to limit the maximum amount of non-pecuniary damages a plaintiff could receive in a civil action (Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 (SCC) [Andrews]; Thornton v. School District No. 57 (Prince George) et al., [1978] 2 S.C.R. 267 (SCC) [Thornton]; and Arnold v. Teno, [1978] 2 S.C.R. 287 (SCC) [Arnold]) (the “Trilogy”). As the Court explained (emphasis added):
[T]he problem here is qualitatively different from that of pecuniary losses. There is no medium of exchange for happiness. There is no market for expectation of life. The monetary evaluation of non-pecuniary losses is a philosophical and policy exercise more than a legal or logical one.
Justice Dickson for the Supreme Court of Canada imposed a conservative upper limit on non-pecuniary damages:
I would adopt as the appropriate award in the case of a young adult quadriplegic like Andrews the amount of [CDN]$100,000. Save in exceptional circumstances, this should be regarded as an upper limit of non-pecuniary loss in cases of this nature (Andrews at p. 21).As a result, the Court established $100,000 as the cap on non-pecuniary damages. However, it later clarified that that amount was subject to inflation. In the 1981 Supreme Court of Canada decision of Lindal v. Lindal ([1981] S.C.J. No. 108 (SCC), it was agreed upon that the $100,000 cap would be adjusted at the rate of inflation to determine the upper limit at the time of trial. Today, the cap is a bit more than $360,000.
Note, however, that this upper limit is only available in the worst of injury cases. For example, in two of the cases in which the Court first developed that limit, the plaintiffs were young adults who had become paralyzed from the neck down. In the average B.C. tort claim, plaintiffs should anticipate an award of non-pecuniary damages well below the cap. Non-pecuniary damages were meant to provide a substitute for loss of amenities and to make the plaintiff’s life more bearable. Damages may be awarded in other headings to provide equality in the amount of compensation a plaintiff receives in a negligence case.
In D.S. v. Quesnelle (2019) ONSC, the Ontario Superior Court held that the cap on general damages of $100,000 set by the "trilogy" Supreme Court of Canada cases did not apply to intentional torts.
Non-Compensatory Damages include: Punitive Damages which are appropriate where the Defendant’s misconduct was so malicious, oppressive and highhanded. Their Purpose? Punishment and deterrence. Nominal Damages are small amounts of money awarded when the plaintiff has successfully established a cause of action but has suffered no substantial loss or is unable to prove what that loss is. Their purpose? Vindication of the Plaintiff’s rights and a minor deterrence to the Defendant.
This section is adapted from:
The History and Treatment of Damages in Canada
Patricia J. Armstrong
Lindsay LLP
Generally, punitive damages are imposed in rare circumstances where there has been high-handed, malicious, arbitrary or highly reprehensible misconduct that departs markedly from ordinary standards of decent behaviour. Their purpose is not to compensate the plaintiff, but to give the defendant his or her just dessert (retribution), to deter the defendant and others from similar misconduct in the future (deterrence), and to mark the community’s collective condemnation (denunciation) of what has happened. Currently, the range for punitive damages in Canada is between $50,000 to $1 million. Most cases, however, fall within the $100,000 to $200,000 range (see Clarfield v. Crown Life (2000), 23 C.C.L.I. (3rd) 266 (Ont. S.C.J.), Kogan v. Chubb (2001), 27 C.C.L.I. (3rd) 16 (Ont. S.C.J.), Fidler v. Sunlife, 2004 BCCA 273, Fernandes v. Penncorp Life Insurance Company, 2013 ONSC 1637).
In Canada, aggravated damages are awarded to compensate a party for the mental distress experienced from another party’s misconduct or misbehaviour. Aggravated damages cover intangible injuries such as mental distress, pain, anguish, grief, anxiety, vexation, humiliation, indignation, outrage, wounded pride, damaged self-confidence or self esteem, loss of faith in friends or colleagues, and other similar matters. As no Supreme Court of Canada case has ruled on aggravated damages in bad faith claims, the damages are specific to the provinces and vary in range. In provinces such as British Columbia, the highest award has only been $35,000 (Asselstine v. Manulife, 2005 BCCA 292). On the other hand, a recent 2013 Ontario case awarded $100,000 in aggravated damages on a disability insurance claim (Fernandes v. Penncorp Life Insurance Company, 2013 ONSC 1637). Currently, the typical range for aggravated damages in Canada is $10,000 to $100,000 but most of the awards fall on the lower end of the spectrum.
As the numbers currently stand in Canada, the upper limit for non-pecuniary damages is approximately $360,000. The range for aggravated damages is between $10,000 and $100,000, and the range for punitive damages is between $50,000 and $1 million.
Enforcing Judgments – The liable Defendant must have $, assets, a job that pays wages. There are 3 ways that you can receive payments:
- Examination of a Debtor is a legal hearing in front of a judge to determine assets and to build a repayment schedule for the Defendant
- The court can Seize Assets and auction them off to pay the Plaintiff
- Your wages can be Garnished ( a percentage of the Defendant’s wages can be withheld by employer and submitted to Plaintiff)
Negligence
This is an unintentional or an intentional civil wrong (tort). Negligence is the most common civil tort (inattention, carelessness, and the possibility of harm) and there are 4 components to the “Test for Negligence:
- Duty of Care – The Plaintiff must prove that the Defendant had the legal obligation not to cause harm on their property (The “neighbour principle” – you have a responsibility to take reasonable care for the safety of anyone who may be harmed by your actions)
- Breach in the Duty of Care (Standard of Care) – The Plaintiff must prove that the Defendant did not meet the expected standard of care owed to them (based on the “Reasonable Person Principle” – concept of “Foreseeability”)
- Causation – Once the Plaintiff has proven the Defendant didn’t meet the Standard of Care there needs to be a determination of “direct causality” (“but for…” principle – but for the actions of the Defendant the Plaintiff would not have been harmed – sometimes the acts speak for themselves “Res Ipsa Loquitor”).
- Actual Harm/Loss – The Plaintiff must prove that real damages occurred to them as a result of the Defendant’s negligent acts
1. Did you have a responsibility to someone?
2. Did you fail in your responsibility-How?
3. Did you cause them harm?
4. Did the suffer an actual loss?
Conduct is negligent if it creates an objectively unreasonable risk of harm.
To avoid liability, a person must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances.
The measure of what is reasonable depends on the facts of each case, including
• the likelihood of a known or foreseeable harm,
• the gravity of that harm, and
• the burden or cost which would be incurred to prevent the injury.
In addition, one may look to external indicators of reasonable conduct
• such as custom,
• industry practice, and
• statutory or regulatory standards
Defenses for Negligence
The best defense is no duty of care. Another defense is that the Defendant actually met the Standard of Care expected. Other defenses include no actual loss or harm to the Plaintiff and…
1. Contributory Negligence – if the Plaintiff and Defendant are both negligent then damages can be split between them. In this the Defendant must establish that the Plaintiff was partially at fault
2. Voluntary Assumption of Risk – This implies that you accept factors that may lead to harm or injury. This means you assume risk. The Defendant must prove that the Plaintiff clearly knew the risk involved in their actions and chose to assume it. Waivers – are not always enforceable The Defendant must establish that the Plaintiff made a conscious decision to sign the waiver and knew what it implied.
Motor Vehicles, Vicarious Liability & Occupier’s Liability
In the context of B.C. motor vehicle accidents, a tort claim is a claim that another person was at fault in causing the accident and should be required to compensate an injured person for his or her injuries. Such claims are covered by the third-party liability provisions of ICBC’s Basic Autoplan.
The driver of the vehicle is liable for all passengers in the vehicle – if passenger enters vehicle and assumes risk (VAR- voluntary assumption of risk) then no liability exists for driver to passenger.
Vicarious liability – a Defendant is held liable for another person’s tort even though they may have done nothing wrong. Companies are liable for their employees’ actions through vicarious liability (as are parents for their children)
Occupiers Liability – An occupier is someone who is in control of property. You have a duty of care to ensure that your property is safe for others. The occupier should be able to foresee any harm and mitigate it. There are three classes of people who occupiers are liable to:
- Invitees are people who are on property for reasons OTHER than social visits. These people are owed the HIGHEST standard of care.
- Licensees are people who are on property on the implied permission of the occupier (social visits where no business is transacted).
- Trespassers are people who enter property without permission or a legal right.
Take some time to review invitees, licencees, and tresspassers for occupiers' liability (which is relevant for cases 1, 2, 3, 4, 5, and 8). The Insurance Bureau of Canada has a great webpage to help with Occupier's Liability called Slip/Trip and Fall. On this site it indicates:
As an occupier, you and/or your organization are required to keep areas such as aisles, stairs, ramps, walkways, driveways and parking lots reasonably safe for persons who are using them. Some common hazardous conditions include:
- ice and snow that has not been cleared
- unexpected elevation changes
- uneven surfaces (e.g., cracks, gaps, potholes)
- slippery surfaces (e.g., wet floors, tile flooring)
- missing or loose handrails on stairs
- debris on walking paths (e.g., boxes in aisles)
- inadequate lighting.
- Whether the danger was foreseeable.
- Whether the occupier’s conduct was in accordance with acceptable standards of practice.
- Whether there was an adequate system of inspection (considering the risks involved) in place and carried out.
- Whether the danger was allowed to exist for an unreasonable amount of time.
- The ease with which the danger could have been prevented.
Occupiers Liability Act [RSBC 1996] Chapter 337
Products Liability Act
Doing Business in Canada (Product Liability)
Family Compensation Act [RSBC 1996] Chapter 126
Host Liability - Commercial Hosts have a specific duty of care to their patrons so that they do not harm themselves from consuming alcohol. How to control patron’s alcohol intake:
- Every server needs to take and pass a “Serving it Right” course (experience and training)
- Every server needs to monitor patron’s alcohol intake
- No server can sell alcohol to someone who is intoxicated
- Take away keys, call taxis, call police
The Duty of Care for the commercial property exists through their patron’s to anyone who that patron’s come into contact with (third parties) Social Hosts have a specific duty of care to their licensees (where alcohol is served but there is no financial benefit) – there is also third party liability here…
In the text there are some important sections involving "liability" for businesses and social guests on pages 406-410 (Occupiers' Liability: general invitees; commercial and social host invitees; licensees; trespassers; and the Occupiers Liability Act). These topics are relevant to all cases except for Case 7. From the Canada Safety Council dealing with Social Host Liability:
It is important for every social host to consider the consequences involved with the service of alcohol because there will continue to be lawsuits. The social host could be found to have a duty of care to guests and all those who are at risk due to the intoxication of the guests for events that could be foreseeable. Further, the host has a duty to monitor and supervise the service and consumption of alcohol during a party or event. The best course is to take risk management measures. The social host should check his or her insurance to determine if there is coverage for any incident that may occur on the property or as a result of actions from the property. When hosting a party, plan appropriately. This includes:
- Either don't drink or limit your own consumption of alcohol in order to track that of your guests.
- Know your guests - it is much easier to track the changes in behaviour of those you know.
- Try to serve all drinks yourself and avoid self-serve bars to track and monitor your guests' consumption. Consider hiring a bartender trained in alcohol service.
- Have plenty of non-alcoholic choices.
- Serve lots of food that has protein and fat - salt encourages more drinking and sugar does not mix well with alcohol.
- Meet, Greet and Repeat - meet and greet all your guests as they arrive in order to determine if they have had anything alcoholic to drink before arriving. If the party is an open house or cocktail format, repeat the process as guests leave.
- If a guest is intoxicated, encourage him or her to give you their car keys if relevant. Buddy up with a friend to assist in persuading the intoxicated person to take a cab.
- Keep the phone numbers of cab companies handy and tell the guest that a cab has been ordered - don't give them the option to refuse.
- If the guest is quite intoxicated, keep that person with you until they have sobered or can be left with a sober responsible person.
- Only time will sober the person, not additional fluids or food. Offering a spare bed is a good recourse.
- If the person refuses to give the car keys or spend the night at your house, call the police. It may seem drastic, but it could be a choice between that of an upset friend or far more tragic consequences.
For more on the BC Liquor laws (pertaining to case 5) check out the
Serving It Right information here or for information on liquor law basics here.
BC Liquor Control and Licensing Act [RSBC 1996] Chapter 267
43 (1) A person must not sell or give liquor to an intoxicated person or a person apparently under the influence of liquor.
(2) A licensee or the licensee's employee must not permit
(a) a person to become intoxicated, or
(b) an intoxicated person to remain in that part of a licensed establishment where liquor is sold, served or otherwise supplied.
Liability of officer of corporation
77 If an offence under this Act is committed by a corporation, the officer or agent of the corporation in charge of the establishment in which the offence is committed is deemed to be a party to the offence and is personally liable to the penalties prescribed for the offence as a principal offender but nothing in this section relieves the corporation or the person actually committing the offence from liability for it.
Liability of occupant of establishment
78 On proof that an offence under this Act has been committed by
(a) a person employed by the occupant of a house, shop, restaurant, room or other establishment in which the offence is committed, or
(b) a person permitted by the occupant to be or remain in or on that house, shop, restaurant, room or establishment, or to act in any way for the occupant, the occupant is deemed to be a party to the offence and is liable as a principal offender to the penalties prescribed for the offence, even though the offence was committed by a person who is not proved to have committed it under or by the direction of the occupant but nothing in this section relieves the person actually committing the offence from liability for it.
For your project, there are a few things you should know about helping people in distress or need:
Lowering the Standard of Care
A. Emergency
1) The Emergency Medical Aid Act
2. If, in respect of a person who is ill, injured or unconscious as the result of an accident or other emergency,
(a) a physician, registered health discipline member, or registered nurse voluntarily and without expectation of compensation or reward renders emergency medical services or first aid assistance and the services or assistance are not rendered at a hospital or other place having adequate medical facilities and equipment, or
(b) a person other than a person mentioned in clause (a) voluntarily renders emergency first aid assistance and that assistance is rendered at the immediate scene of the accident or emergency, the physician, registered health discipline member, registered nurse or other person is not liable for damages for injuries to or the death of that person alleged to have been caused by an act or omission on his part in rendering the medical services or first aid assistance, unless it is established that the injuries or death were caused by gross negligence on his part.
NOTE: This does not provide immunity but lowers the standard of care and protects rescuers up to gross negligence
GOOD SAMARITAN ACT [RSBC 1996] CHAPTER 172
Section 1: No liability for emergency aid unless gross negligence
Section 2:Exceptions
Section 3:Health Care (Consent) and Care Facility (Admission) Act
No liability for emergency aid unless gross negligence:
1 A person who renders emergency medical services or aid to an ill, injured or unconscious person, at the immediate scene of an accident or emergency that has caused the illness, injury or unconsciousness, is not liable for damages for injury to or death of that person caused by the person's act or omission in rendering the medical services or aid unless that person is grossly negligent.
Exceptions
2 Section 1 does not apply if the person rendering the medical services or aid
(a) is employed expressly for that purpose, or
(b) does so with a view to gain.
Health Care (Consent) and Care Facility (Admission) Act
3 The Health Care (Consent) and Care Facility (Admission) Act does not affect anything in this Act.
COMMON LAW: The Duty To Assist
As a general principle, common law does not require a bystander to help someone in peril - the priest and the Levite would not be liable for failing to assist the stranger. Common law jurisdictions generally rely on inducements - the carrot and stick approach - to persuade citizens to aid others by minimizing risk to themselves. However, several exceptions exist where failure to act could result in both civil and criminal liability. A "special relationship" may give rise to a duty to assist. Such a relationship exists when, for example, one party derives an economic advantage from the other. An employer may be obligated to assist an employee injured at work. In an accident, common carriers must assist passengers, and innkeepers must aid their quests. Although the spectrum of special relationships has not yet been determined by the courts, the scope will likely expand as it has in the United States.
Another exception occurs when a person creates a situation placing another in danger. A negligent motorist who causes an accident involving injuries is liable if he or she does not provide assistance. In some circumstances, a person is assumed to have a duty to assist because of the nature of his or her job. Policemen and Firemen, not good Samaritans since it is their job to assist in an emergency. In general, a good Samaritan is not paid for rescuing people in danger.
Risks Of A Good Samaritan
In Legal theory, the bystander is safe as long as he or she does absolutely nothing. But as soon as steps are taken to help, immunity for failing to act is removed. If a bystander decides to act as a good Samaritan and chooses to intervene, he or she will be liable to the victim if rescue actions were unreasonable, and indeed aggravated the plight of the sufferer.
So long as nothing is done to worsen the situation, a good Samaritan can abandon the rescue effort and leave the scene. A point is reached, however, when someone who intervenes is considered to have assumed a legal duty to act, but the rule and limits have not been tested.
The good Samaritan probably runs greater risk of being held liable for personal injury or damage to property to a third party than to the victim. But the old common law defense of necessity protects a rescuer from liability for trespass if the individual enters another's property or uses others' goods necessary to save lives or protect property. A good Samaritan can break into a garage and seize an axe to save a stranger trapped in a burning car.
Rights Of A Good Samaritan
What happens when a good Samaritan suffers injuries or damage to his or her property as a result of responding to a call for help? Courts formerly considered that risk of loss or injury was voluntarily assumed. Today, the rights of a good Samaritan to claim compensation depend mainly on whether the emergency was caused by another's negligence or fault. If danger is caused by the victim, the good Samaritan can claim compensation from the victim. If a third party causes the situation, both rescuer and victim can recover damages from that person.
The Ogopogo Case
The case of Horsley v MacLaren, 1970, represents a controversial example of the right to compensation. A guest (Matthews) on a power boat (the Ogopogo) owned by the defendant (MacLaren) fell overboard into Lake Ontario. MacLaren tried to rescue Matthews but was unsuccessful. Meanwhile, the plaintiff Horsley (another guest) attempted to save Matthews but both men drowned. The court held that MacLaren had a duty to rescue Matthews because of a special relationship - a power boat operator owed a duty of protective care to the passengers - and if negligent, MacLaren would be liable to Matthews (or his dependents).
Horsley, on the other hand, was a good samaritan with no duty to rescue Matthews. His only recourse was against MacLaren and his right to compensation depended on whether MacLaren had been negligent to Matthews, which the Supreme Court found not to be the case. Since MacLaren was not liable to Matthews, he could not be liable to Horsley.
FYI:
Spraggs & Co. Should I Claim My Work Injury with WorkSafeBC or in a Personal Injury Lawsuit?
Worksafe BC The basics of making a claim
Worksafe BC What you need to know about benefits and lawsuits for injury, death, or disease in the workplace
Worksafe BC Critical Incident Response
Worksafe BC Workers compensation and Lawsuit basics
Some help regarding the baseball case can be found at City of Vancouver Standards of Maintenance By Law (look at section 5 Structural Conditions). Some help regarding the amusement park and ski resort cases can be found at SAFETY STANDARDS ACT [SBC 2003] CHAPTER 39 and at Safety Standards Act
SAFETY STANDARDS GENERAL REGULATION.
There are also things you should know about Professional Negligence and standard of care:
Reibl v. Hughes (1980, SCC)
The Court held that the actions of the doctor in this case were negligent. The relationship of doctor -patient gives rise to a duty for the doctor to disclose all material risks relationship to the recommended surgery. The Court held that the doctor failed to adequately communicate to the appellant the risks of the operation that he was to undergo. The doctor was negligent in leaving the patient with the opinion that he would be better off for having the operation. The doctor should have more clearly explained the incidences of mortality and the incidences of morbidity. He was also negligent in not making it plain to the plaintiff appellant that the operation would not cure his headaches. There was no neurological deficit that mandated the surgery. There was also no emergency that required the surgery
1. Lack of informed consent won't lead to liability for battery unless there is no consent at all, where there is fraud, or where the treatment went beyond the consent. However, negligence principles are to be applied.
2. modified objective test - relies on a combination of objective and subjective factors in order to determine whether the failure to disclose actually caused the harm of which the plaintiff complains. It requires that the court consider what the reasonable patient in the circumstances of the plaintiff would have done if faced w/ the same situation.
1st QUESTION: Whether the Dr. gave the warning?
2nd QUESTION: Would the patient have gone ahead anyway?
To succeed there are 3 steps:
1. Plaintiff must show that material risk existed
2. Plaintiff must show that material risk was not disclosed
3. Plaintiff must show that had risk been disclosed plaintiff would not have consented - prove using the subjective/objective test
Family Compensation Act [RSBC 1996] Chapter 126
Medical Malpractice Canada
Lawyers BC Medical Malpractice
John McKiggan Medical Malpractice Informed Consent (minors)
Intentional Torts
There are two main types of Intentional Torts:
1. Trespass to Person/Land – presence on another person’s body or property without consent. Person = assault and battery or false imprisonment (Assault – no offensive touching required – Battery – contact must be direct and it assumes fault on Defendant a.k.a. Defendant must prove they did not do action). False Imprisonment = wrongful or unauthorized confinement in a specific area.
2. Nuisance – a person’s unreasonable use of land so that it interferes with the enjoyment of use of adjoining land. Private & Public (public = pollution, blocking a highway, oil spills) Defamation of Character
• Consent (has to be established by Defendant) – a Defendant that can show willing consent from Plaintiff for actions can be excused from liability.
• Self Defense – force must be reasonable and necessary to prevent personal injury
• Defense of Others – 3rd party can come to the aid of another only in cases of immediate danger.
• Defense of Property – force must be reasonable and necessary but you MUST first ask the trespasser to leave
• Others? Legal Authority, Necessity
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