Explain the Terms:

• Explain the Terms Reasonably foreseeable
• Explain the Terms Sufficiently proximate
• Explain the Terms reasonable person
• Explain the Terms Professional Conduct
• Explain the Terms Contibutory negligence
• Explain the Terms Tort is damage to property (real estate), person, business, reputation
• Explain the Terms False Imprisonment
• Explain the Terms Trespass
• Explain the Terms Standard of Care
• Explain the Terms Cause in fact and Cause in Law
• Explain the Terms Thin Skull Rule
• Explain the Terms Defences in Tort

2. Three pillars of liability in negligence:
   2. What is wrongful conduct?
   4. What is causation,
   6. What is harm.
5. What is the "standard of care of an ordinary person vs. Defendants who are expertsare held to the standard of a "reasonable expert" .
7. Cause in fact the factual link between one person's actions and another person's harm vs. Cause in law - the proximity or remoteness of one person's actions in causing another person's harm
9. To establish a duty of care, the plaintiff must prove
11. That it was reasonably foreseeablethat the defendant's actions could cause harm to a person or property
13. That, at the time of the action, a person or property was sufficiently proximate to the defendant to suffer harm

Test 2

Case brief Study:

Courts have termed some causation issues as "complex causation":

Athey v. Leonati(1996) framework for complex causation cases:

• facts of the case (what transpired between the parties involved before the case was brought to court)
• issues (the questions that are addressed by court in this specific case)
• ratio dicidendi (the judge's reason for deciding the way he/she did)
• holding (the final verdict or decision of the court)
• analysis (the student's original commentary regarding the significance of the case)

Test 3

1. a. The cause-in-law test makes it clear that where the chain of events that led to harm to a plaintiff is completely unforeseeable, the defendant will not be liable for the harm that ensues. What is the reasoning behind this?

b.Why do you think that remoteness works differently when it comes to extent of harmthat is, why are defendants found liable for harm that is more serious than they could have imagined?

2.How do courts, as they try to determine whether the defendant in a negligence case met the applicable standard of care, define the hypothetical "reasonable person" by whose standard they measure the defendant's performance?

3.Explain why the "thin skull" rule did not apply to the case of Dushynski v Rumsey, the case where the plaintiff developed chronic pain syndrome after four separate car accidents, then sued the defendant in the fourth accident and tried to have the court impose liability on him for her medical condition.

Exercises

1.A fire breaks out in a two-storey department store, and the fire alarm triggers a shutdown of power to the elevators and escalators. There is thick smoke in the lingerie department on the second floor. Keisha runs toward the top of the escalator, where she sees a stranger in a wheelchair waiting, unable to get down the inoperable escalator. No other people are in sight and the fire department has not yet arrived. Keisha runs down the escalator steps without doing anything to help the stranger, who suffers severe smoke inhalation before she is rescued by the fire department.

a. Did Keisha owe a duty of care to the stranger, and, if so, did she breach it? Research this question and explain your answer.

b. Comment on the answer and consider whether you agree or disagree with it, taking into account public policy considerations.

2.Mercedes Smart, a single mother, has just been fired from her job. She claims that her termination is the fault of a daycare centre called "PA Play," where her sons Lincoln and Bentley were enrolled nearly three years ago.

In June 2015, her children Lincoln (then aged nine) and Bentley (then seven) participated in a PA Play daycare program that included out-trips to local attractions on PA days. The younger boy, Bentley, has severe behavioural problems that have still not been fully diagnosed. He tended to have violent, confrontational tantrums when he felt overwhelmed by new situations or new people. The staff at PA Play had mentioned to Mercedes on two separate occasions that caring for Bentley, especially on out-trips, was a challenge for staff, and occasionally raised safety concerns. Mercedes's response was that the staff needed to be prepared to deal with all children, not just easy children. She also said that the best way to deal with Bentley, when he was being difficult, was to allow him to be in Lincoln's group, even though he did not meet the age requirements.

On June 11, 2015, PA Play took the children, including the two Smart brothers, on an out-trip to Centre Island near Toronto. Sometime near the end of the outing, Bentley Smart began acting up. His counsellor, Pierre Perkins, struggled to control him, and Bentley threw a full-blown tantrum. In the midst of the tantrum, and while he was trying to deal with the other eight kids under his care, Pierre Perkins believed he saw Annalisa Symmonds with her group of kids, approximately 50 yards away, having a snack in the shade. Lincoln Smart was part of Annalisa's group. At his wits' end, and remembering Mercedes Smart's advice, Pierre said to Bentley, "Go see Lincoln, over there under the trees. Tell Annalisa that I said it was okay if you go home with their group."

Bentley Smart headed off at a run.

Upon returning by ferry to the Toronto Island docks, Pierre Perkins encountered Annalisa Symmonds, inquired about Bentley, and learned that Bentley did not join Annalisa's group. Pierre had been mistaken about the group under the tree; they were kids from a different daycare altogether. Bentley Smart was nowhere to be found, and the counsellors realized that he had been left on the island.

By the time the mistake was discovered, a ferry back to the island was boarded, a counsellor travelled to the island, and Bentley was located. The seven-year-old boy had been alone for more than three hours and was hysterical. Mercedes Smart was also hysterical when she learned about the situation through a phone call from the daycare centre at 4:45 p.m., before Bentley was found.

Mercedes Smart never sent either child back to PA Play. As a gesture of support, her employer allowed her to stay home with the boys on PA days. But she began to have nightmares about the incident, and she was also having panic attacks at work. On several occasions, she became so distressed that she had to leave early.

In May 2017, Mercedes's work situation changed, and she was transferred to a new office. Her new boss did not permit Mercedes to take all PA days off. Mercedes's anxiety escalated, and her panic attacks occurred almost daily. She began leaving work without permission, her productivity dropped, and, in January 2018, she was dismissed for cause.

Mercedes is now suing PA Play and Pierre Perkins in negligence. She is claiming damages for a mental illness, her anxiety disorder, and for lost income due to her job loss. She has a physician's report that supports her claim; however, another physician who will be a witness for PA Play is expected to testify that it is common for parents, especially single parents, of children with severe behavioural problems to suffer from depression, anxiety, and panic attacks.

a.Did PA Play owe Bentley a duty of care? Did Pierre Perkins? Did the defendants owe Mercedes a duty of care? Discuss your answer with reference to at least two elements of the duty of care.

b.What was the standard of care owed by the daycare and the counsellor to the plaintiffs?

c. Were the actions of PA Play and Pierre Perkins the cause in law of Mercedes Smart's job-loss damages?

^{Test 4}

Fact Scenario

Whiteman v Iamkhong,2015 ONCA 564

In 1995, Percy Whiteman sponsored Suwalee Iamkhong to cometo Canada on a work visa from Thailand. They were married from 1997 to 2004. Iamkhong was HIV positive but did not disclose it to Whiteman until 2004. Whiteman contracted the disease from her.

In March of 2008, Whiteman commenced a $30 million negligence claim against Iamkhong, Immigration Canada, a government doctor, and the strip club where Iamkhong worked. Whiteman claimed that Iamkhong was aware of her HIV positive status but intentionally failed to disclose it to him to ensure her entry into the country. He also claimed that the Attorney General of Canada must have known of her status through the medical disclosure included in her application but failed to warn him and, therefore, was vicariously liable for Iamkhong's alleged negligence. Whiteman sued the government doctor for failing to test Iamkhong. The club where Iamkhong was a stripper was also involved in the lawsuit as vicariously liable. Whiteman claimed that the club promoted and encouraged sex between the workers and customers and that there were no restrictions on Iamkhong's exotic dancing to protect her fellow employees and the club's customers from contracting HIV.

In 2007, Iamkhong was convicted of criminal negligence causing bodily harm for transmitting HIV to the Whiteman. She was sentenced to two years in jail. In 2010, Iamkhong was deported to Thailand.

1.What does the Whiteman need to prove in his claim of negligence against Iamkhong?

2.Does the government doctor owe a duty of care to Whiteman? Why or why not?

3.Are there any public policy reasons to find that the Attorney General of Canada does not owe a duty of care to Whiteman? Why or why not?