Winter CAN

8/18/2019 Winter CAN

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TORTS WINTER 2013

REMOTENESS

• Control device of negligence law – whether the loss is too remote from the negligent act to warrant liability

• Demands a proximate connection between the negligent act and the damage

Foreseeability test – interpreted generously (pro-plaintiff trend): Reasonable Foreseeability of a real risk of a kind of

harm

o

o longer the Directness test - Polemis (pro-defendant)• Characteri!ation of damage – the broader the definition of damage" the more li#ely it will be found to be foreseeable

The Wagon Mound (No. 1) (PC 1!1)

Facts: Doc# and ships damaged by fire when a spar# from welders hits cotton debris floating on the water" which is covered inoil due to the Defendant$s actions (spilling the oil)%ssue: &hether the damage to the wharf is too remote'eld: eseasoning:

• eassessing the remoteness rule (replacing the directness rule with a foreseeability rule)

• Due to expert testimony" the court finds the fire (that oil on water could ignite) unforeseeable

atio: *he correct test for remoteness is foreseeability – &hether the damage is of such a #ind that the reasonable man shouldhave foreseen it

"ughes # $ord %d#o&ate ("$ 1!') TP* +F ,%M%-*

Facts: *here was a manhole uncovered (mar#ed by paraffin lamps)" employees went on brea# and while they are gone + #idscome along and begin exploring the wor# site, *hey bring one of the lamps with them and descend down the manhole, *heyaccidently drop the lamp and it explodes, #id falls into the manhole due to the force of the explosion and is badly burned,%ssue: &hether the in.uries were foreseeable'eld: eseasoning:

• Defendant does not have to foresee how the harm occurred or the extent of the harm" they only have to foresee the

#ind of harm

• *herefore" because lamps were present" burns were foreseeable

atio: /nly the #ind of harm must be foreseeable to find liability (not the se0uence of events leading to it or the extent of theharm)

The Wagon Mound (No. ) (PC 1!!) P+//00$0T +F ,%M%-*

Facts: see &1 o," the difference in this case is that the 2laintiffs are the ship owners" not the doc#3wharf owners%ssue: &hether the damage was foreseeable'eld: eseasoning:

• Different finding of fact than in &1 o, – it was foreseeable that oil could cause the fire

• 2C reiterates that the test for determining whether damage is too remote to find liability is the foreseeability test

(same test used" different result" due to evidence produced and the fact that the 2l, had not contributed at all to theharm)

• Court focuses on the degree of foreseeability – a real ris#3possibility of damage (is it possible)

atio: *hat the damage is a possibility is sufficient to found liability

*'% 45677 *he Defendant ta#es their victim as they find them (even if they are more susceptible to harm than others)

/mith # $ee&h rain Co. (2 1!1)

Facts: 8mployee suffers a burn on his lip while wor#ing" the burn becomes malignant and he later dies from the cancer, 4mithhad a predisposition to develop cancer (the burn was a promoting agent)%ssue: &hether the cancer (and ultimately death) was foreseeable'eld: eseasoning:

• %t was sufficient that the burn was foreseeable (no the cancer)

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• *he cancer was classified as the extent of harm produced by the burn (and therefore did not need to be foreseeable" as

only the #ind of harm needed to be)

• Court classifies the #ind of harm as a burn (not cancer) – sympathetic to plaintiff

%they # $eonati (/CC 1!)

Facts: *he 2l, suffered from herniated dis# after + car accidents and stretching, 2l, had a pre-disposition to bac# problems" in particular to a herniated dis#, *he car accidents worsened the bac# problems and the stretching resulted in a herniated dis#,%ssue: &hether Def, (involved in car accident) is liable for the herniated dis#

'eld: es" but apportionment of liability (9;)easoning:

• 2l, had a crumbling s#ull" therefore the Def, need not put the 2l, in a better position than they would have been had

the car accident not happened

• %f the Def, is a tortious cause" they are ; liable (thin s#ull – full extent of damages" crumbling s#ull –

apportionment of damages)

Musta3ha # Culligan of Canada $td. (/CC 445) P/C"0%TR0C ,%M%-*

Facts: Dead fly in 2l,$s water bottle" subse0uently he suffers from ma.or depressive disorder" phobia and anxiety%ssue: &hether the damage was foreseeable'eld: oeasoning:

• 2l, failed to establish that it was foreseeable that a person of ordinary fortitude would suffer serious in.ury from seeing

a fly in a bottle of water

• 1ust establish claim before the thin s#ull principle can be considered

atio: &ith psychological harm" it must be reasonably foreseeable that a person of ordinary fortitude would suffer the #ind ofharm

*est for emoteness is very fact specific ote +: ,oughty # Turner Manufa&turing Co. (1!6) – distinguishing "ughes # $ord %d#o&ate" 2l, argued that the #ind of harm (a burn) was foreseeable because there was a foreseeable ris# of splashing ifthe lid fell into the li0uid (and therefore" that the burn happened via explosion when the lid fell into the li0uid" was irrelevant –

" # $% – only the #ind of harm" and not how it arises" has to be foreseeable)

• C< – there was no evidence of a splash" only an explosion (the only duty related to splashing and there was no

evidence of a splash" therefore no breach" and no liability)

/nly the #ind of harm (and not the particular #ind of harm) must be foreseeable

ote =: $aurit7en # arstead (>?9)" Def,grabs steering wheel of 2l,$s car and car ends up in the ditch" 2l, wal#s for help – frostbite necessitates the amputation of partsof both feet (Def, held liable because the genus of harm was foreseeable – ie, Frostbite)

ote @: +ke # Weide Trans3ort (1!') – 2l,$s death characteri!ed as a Afrea# accidentB and the Def, could not have foreseensuch an unusual occurrence (dissent – would have found liability because it was foreseeable that the post left where it wascould be a source of danger to a motorist)

*he ambit of foreseeable damage is broad (only need foresee the #ind3type of harm) ote : /&hool ,i#ision of %ssiniboine /outh # "offer and -reater Winni3eg -as Co. (184) – boy fires up father$s snowmobile in a negligent manner"causing it to escape from his control and collide with a defective gas pipe" this caused some gas to escape and enter a nearbyschool and the gas exploded" Def,$s (son" father" gas company" found liable)

easonable foreseeability of the genus of harm" not the particulars ote : olley v 4utton 7ondon Eorough Council(+=)

ote (=): Musta3ha – any harm that has actually occurred" is possible, 2ossibility alone does not provide a meaningfulstandard for the application of reasonable foreseeability – it must be a Areal ris#B (degree of probability re0uired)

ote (=>+): *hin 4#ull (rule of liability – extent to which you$re liable: 2ro 2l,) v Crumbling 4#ull (rule of apportionment ofdamages – once liability established" avoids windfall result: 2ro Def,)

"orsley # Ma&$aren (/CC 18) R*/C9*

Facts: escue of a rescuer: man falls overboard" captain uses improper rescue procedure" 'orsley and another passenger .umpinto the water to rescue him, 'orsley dies in his rescue attempt

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%ssue: &hether the captain$s actions induced 'orsley to rescue" and therefore foreseeably caused his death'eld: 1a.ority – o" Dissent – eseasoning:

• 1a.ority – peril was caused by the passenger who fell overboard" not the captain

o o proof that the Def,$s actions caused the 2l, to attempt a rescue (wrong rescue procedure was an error in

.udgement" not negligence)

• Dissent – Def, breached duty to passenger" negligence induced 2l, to ma#e rescue attempt

atio: %f a rescuer is in.ured or #illed in their rescue attempt" they may only recover from the person whose fault it is that they

had to attempt a rescue

"arris # TTC (/CC 1!8) 0NT*R:*N0N- F+RC*/

Facts: 'arris (young child) was a passenger on Def,$s bus" had arm out of the bus window (which was prohibited) and as bus pulled away from the bus stop" it brushed against a steel pole, 'arris$ arm was crushed and bro#en,%ssue: &hether 'arris putting him arm out the winder was an intervening act" brea#ing the chain of causation'eld: oeasoning:

• *he bus driver should have foreseen that a child would put their arm out of the window (the bro#en arm was

reasonably foreseeable" therefore" there is no brea# in the chain of causation)

• *he correct test is reasonable foreseeability" regardless of an intervening act (this would be ta#en account of in

apportionment of liability – Contributory negligence)

ote (@+) easonable Foreseeability test even with intervening act ote ? (@>) radford # ;anellos (181)


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'eld: eseasoning: modification of Astalemate ruleB into the Alast clear chance ruleB – if def, had the last clear change to avoid theaccident" they will be found liable for not avoiding it

• Def, was going too fast (last clear chance as exception to stalemate rule" but still all or nothing approach)

• *he Def, caused the harm by not avoiding it

ote ? (@=?) 4as#atchewan and ewfoundland still maintain a modified version of the last clear chance rule

Contributory Ne!ien"e #"t$ R%S%#% 2000 "% C2&Defence via statute" Defence has onus of proving (applies to any fault based tort)

• &hen by fault of + or more persons damage or loss is caused to both or one of them" you determine the degree of fault

and liability is apportioned accordinglyo 1ultiple defendants (.ointly and severally liable) – each party is liable for ; of the damages" even

though fault is apportioned (designed to stop under-compensation" Def,$s as between themselves can sueeach other to determine what they owe – can see# contribution from other defendants)

o 2l, contributory negligent

• s, =() – last clear chance rule not applicable

• s, () – apportion liability

• s, +(+) – .oint G severally liable

ote = (@=9) – 2l, must exercise same standard of care as Def, ote @ (@=9) – 2l, owes a duty to themselves ote (@=>) – "ollebone # arnard (1?6) – defence of C did not succeed (2l, ran onto golf course and hit by Def,$s golf ball – action only in trespass" not negligence) ote > (@@) – ell Canada # Co3e (154) – distinguished ' v E" allowed C defence" fault and negligence not the samething (fault much broader – therefore" C


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easoning:

• 2l was incarcerated for his own illegal actions" criminal punishment is a lawful in.ury

• *o allow him to claim damages would enable him to profit from his illegal activity (this threatens the legal system)

o 'e was awarded damages for the sexual abuse" but not the loss of income from being incarcerated (as a

result of his illegal actions" which he claimed were tied to his sexual abuse)

Cro&ker # /undan&e (/CC 155) *DC$9/0+N C$%9/*/

Contracting out of tort liability

• ot all exclusion clauses are enforceable

• 1ust be drawn to the attention of the 2l," 2l, must be fully aware of what the exclusion clause means (that the Def, is

exempting themselves from liability)

• Croc#er signed waiver + days prior to competition" evidence that he didn$t read form or appreciate it" and no attention

was drawn to the exclusion clauseo *herefore" the waiver is not valid (exclusion clause not enforceable against him)

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• ationale for proximity - notion of a Aspecial relationshipB due to the Def,$s voluntary assumption of responsibility

for the accuracy of their wordso e0uest for information" information given – proximity created by simply replying to re0uest

o Duty of Care owed by representor to representee

atio: &hen a representor assumes a duty when providing information" advice" or opinion" he may be found liable for pureeconomic loss resulting from reasonable reliance on that information if it is negligently misrepresented

2ueen # Cognos (/CC 1')Facts: 8mployer misrepresented the nature and existence of an employment opportunity for which the 2l, successfully appliedand relocated for %ssue: &hether the 2l,$s pure economic loss is recoverable'eld: eseasoning:

• *he pl, met the test for establishing negligent misrepresentation

o Duty of care exists based on a Aspecial relationshipB (Duty)

o *he epresentation is untrue" inaccurate" or misleading (1isrep,)

o *he epresentor acted negligently (negligence – breach of standard of care – the reasonable person)

o *he epresentee reasonably relies on the negligent misrepresentation (reasonable reliance)

o *hat eliance is detrimental (harm)

ote (@?): "askett # *>uifa= Canada (44') – credit reporting agency (no reliance" but assumption of responsibility) –whether consumer can sure for misrepresentation made to a third party (4ears) whom they were to purchase an expensive product from and were subse0uently denied

NEGLIGENT (ERFORM#NCE OF SER'ICES

Contract law provides incomplete protection: no remedy if gratuitous service" no remedy for loss of a third party (rule of privity)

.,.C. $td # "ofstrand Farms $td. (/CC 15!)

Facts: Def, courier entered into contract with Crown to deliver an envelope (which it did not #now the contents of) from thegovernment department to land registry office by a certain date" the delivery was delayed due to the Def,$s negligence, *hegrants of land were not registered to 2l, in sufficient time to allow it to perform contract with another party" due to contract

term allowing the party to terminate the contract if registration deadline missed, *he 2l, blamed the courier for the deal fallingthrough,%ssue: &hether the courier can be held liable (whether courier owed duty to ' Farms)'eld: oeasoning:

• *he Def, did not owe a duty of care to the 2l, (proximity not met – therefore" no special relationship)

o *here was no reliance by ' farms on 2l (they created their own ris# through their contract which was made

in advance and independent of the courier$s actions)o 2olicy consideration – why should the courier have to pay for the ris#y contract that the 2l, voluntarily

entered into (prior to the engagement of the courier)o o basis for concluding courier had assumed responsibility for 2l, or that the 2l, had acted in reliance on the

Def,atio: &ithout reasonable reliance by 2l, on Def, there is no proximityI with no proximity there is no duty and therefore no

liability

ECONOMIC LOSS C#USED BY DEFECTI'E (RODUCTS #ND STRUCTURES

*raditionally not compensable" see#ing to recover compensation for damage to3in the building (the cost of repairs) –contract privity issue – claim for breach of a warranty of 0uality by a non contracting party (ex, second purchaser of building)

• egligent wor#manship" resulting in repairs (no pure economic loss if repairs not underta#en)

Winni3eg Condominiums No. ! # ird Constru&tion Co. (/CC 1?)

Facts:


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proved insufficient and a few years later" a large slab of cladding falls from the >th story of the building, *he entire claddinghad to subse0uently be replaced at a repair cost of J,9 million,%ssue: &hether the 2l, can recover repair costs from Def,'eld: eseasoning:

• &ith respect to dangerous defects" the Def, owed a duty of care to the 2l, (defects which pose a real and substantial

danger)o Distinction made by court between dangerous and non-dangerous defects

• Court applied Cooper testo Foreseeability of damage to future occupants of building created sufficient proximity to create a prima facie

duty of care 7ac# of privity of contract between contractor and inhabitants did not ma#e the potential for in.ury

any less foreseeableo Court found no policy reasons to negate

%ndeterminacy not severe

• Class of 2l,$s restricted (inhabitants of apartment3condo building)" amount payable

restricted to the cost of repairs" duration of liability restricted to useful life of building (andcausation issues the longer the building is in use)

2olicy reasons supporting finding of duty – preventative measure" deterrence of poor construction"

availability of affordable third party liability insurance" purchaser$s difficulties in detecting defects(normal rational for Abuyer bewareB not met – purchaser not in best place to detect and bear the ris#

of hidden defects – condo acted with diligence" experts couldn$t detect the problem)

ote (@>) Ri#to Marine $td. # Washington 0ron Works (18') – 2l, claimed the cost of repairing a dangerously

defective crane and lost profits – claim denied (but 7as#in dissent- would have allowed claim on same basis of &innipegCondo)

• ) &indfall concerns if first purchaser and builder had allocated ris# of dangerous defects in the contract of sale ote @ (@>) o Canadian appellant court has recogni!ed a claim for non-dangerous defects subse0uent to the decision inWinni3eg Condo

Martel # Canada (/CC 444) N*W C%T*-+R0*/ A /ummary Case

Facts: egligence in tendering process%mportance:

• *raditional ule H presumption against compensation for pure economic loss

o 2resumption only remains with contractual relationship pure economic loss (category where traditional rule

still holds) 2l, suffers no in.ury3property damage" but a *hird 2arty has due to the contractual relationship they

have with the 2l, which subse0uently causes the 2l, pure economic loss o :alley "usky – category excluded from compensation unless:

• 2l, claimant has a possessory3proprietary interest

• Keneral average cases (1aritime law)

• oint venture

Norsk – ship runs into bridge owned by Canadian Kovernment (the bridge has railway trac#s on it

used by the C" the government and C have a contract respecting use of the trac#s) – Csuffers pure economic loss due to property damage to government property (bridge) – possibly due

to .oint venture• ew ule H Cooper applied (underta#e normal duty analysis)

o categories established for compensable pure economic loss

OCCU(IER+S LI#BILITY

Determines care that$s owed by those persons who control land (occupiers) to visitors who enter onto that land

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+&&u3ier@s $iability %&t< R./.%. 444 &. 46


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easoning:

• *he notion of AnaturalB is not fro!en in time" the circumstances have to be accounted for (ex, rural v urban

environments)

• *ort doesn$t extend to any use of the land" it must be a special use bringing with it increased danger to others (mar#ed

distinction between inherently dangerous uses and dangerous uses in the circumstances – but" emphasis on danger)o ot merely an ordinary use or something that is proper for the general benefit of the community

• *he water collected in this case (as opposed to ylands) was distinguishable – different contexts

o 2lumbing system vs, reservoir (difference seems to be placed on the benefit to the community" private

(economic profit) v public benefit (societal dimension))

ote (9=9) 4CC accepts ylands as good law in Canada (To&k # /t. Hohn@s Metro 15)" adopt ic#ards factors for non-natural use (ex, storm sewer obstructed during rain storm" overflow floods 2l,$s basement – 2l, li#ely would not succeed andthe sewer system is a necessity in urban life – it is for the general benefit of the community)

ote @ (9=?) 1ore modern context – Mihal&huk # Ratke ,1--./ whether aerial spraying herbicide on land" which escapesand damages the crops of another person$s land" constitutes non-natural use

• *he Court found for the 2l, because the AaerialB aspect was unusual (result may have been different had the Def,$s

been spraying in the usual Aboom-sprayingB way)

ote (9=) -ertsen # Muni&i3ality of Metro3olitan Toronto (186) - Def,$s used organic matter as landfill in residentialarea" as it decomposed" it generated methane gas which escaped onto ad.oining lands and into the 2l,$s garage, &hen the 2l,

started their car one day" the garage exploded" causing property damage and personal in.ury to the 2l, (liability was imposed onnegligence" nuisance and ylands: the gas was a dangerous substance which escaped onto the 2l,$s land and caused themdamage)

• 6se was dangerous in the circumstances and not beneficial to the community: Aselfish and self-servingB

ote (9=) Due to difficult in characteri!ing the tort" it has been re.ected in many .urisdictions – 64< – any harm thatresults from a use which is Aabnormally dangerousB will found liability (regardless of whether the use is Anon-naturalB andwhether there is an AescapeB)

Read # H. $yons E Co. $td. ("$ 168) A the meaning of es&a3eG

Facts: 1unitions factory inspector in.ured during an inspection of the Def,$s property when there is an explosion%ssue: &hether they are liable for her personal in.ury under ylands'eld: oeasoning:

• Context H &&%% – Court decides the use of land as an munitions factory was not a non-natural because it was a time

of war

• 8scape does not simply mean causation (that the explosion3escape caused the harm)

• 8scape means from a place that the Def, has occupation and control of to a place which they don$t

• Court also comment that ylands does not cover personal in.ury

ote = (9@+) Perry # ;endri&ks (1?!) – ylands liability could extend to personal in.ury (the door is open)

ote 9 (9@+) %ldridge # :an Patter< Martin< and Western Fair %sso&. (1?) – race car flies off race trac# and in.ures + people – liability extends to personal damages sustained Aby anyone to whom the probability of such damage would naturally be foreseenB

ote ? (9@=) ,oku&hia # ,omans&h (16?) – the handling of gasoline involved the principle of ylands (rule not confinedto landowners" extends to those who own a dangerous thing – owner is liable for any mischief caused by the dangerous thing"regardless of whether the damage was caused on or off the owner$s premises)

ote (9@=) *kstrom # ,eagon and Montgomery (16!) – Def,$s non-natural use of the 2l,$s garage permises (impliesylands applies to bringing dangerous things onto someone else$s land as well" or using someone else$s land in a non-naturalway)

DEFENCES TO STRICT LI#BILITY ,/

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• Consent – &here 2l, expressly3impliedly consented to Def,$s non-natural use of land (term is generally used broadly –

ex, having #nowledge of the danger and staying)

• 1utual Eenefit – 2l, benefited from Def,$s land use

• Default of 2l, – *he escape is caused by the 2l, (Contributory egligence)

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ote Krabbing another passenger$s leg on the bus when you start to fall – not battery (ordinary conduct of life)I %f yougrab the other passenger$s leg not to steady yourself" but merely for your own en.oyment – battery

ettel # im (+nt Co Ct 185)

Facts: 2l, and friends throw lighted matches into Def,$s store, *he Def, grabs hold of the 2l and sha#es him" in so doing" theDef,$s head contacts the 2l,$s nose" severely in.uring it, *he Def, grabbed the 2l, in an attempt to get him to confess to throwingthe burning matches into his store,

%ssue: &hether the Def (store owner) has committed a battery – &hether you are liable for the unintentional conse0uences(nose in.ury) of what you intentionally do (sha#ing)'eld: eseasoning:

• &as the sha#ing a direct actM – es

• &as the physical interference harmful or offensiveM – es

• &as the sha#ing intentionalM – es (Def, argued that he did not intend to in.ure the 2l,$s nose)

o *he sha#ing was intentional – the conse0uences (and the sha#ing itself) were harmful and offensive

o *herefore" the Def, is liable for the conse0uences" regardless if they were intended

• *he test is applied to the sha#ing" not the in.ured nose (the act not the conse0uence of it)

atio: *he 2l, only needs to establish a direct act that is either harmful or offensive to find battery (then the onus switches tothe Def, to negate intent3establish defence)

SE8U#L WRONGDOING ,CB .& 9&0/

6nwanted sexual conduct clearly constitutes a battery and may also constitute other torts such as assault and intentionalinfliction of emotional distress

ote Norberg # Wynrib – female patient successfully sued her doctor for sexual battery (Dr, had agreed to prescribe adrug to his addicted patient in exchange for sexual activities – 4CC re.ected Dr,$s defence that 2l, consented" holding thatwhere + parties are in a position of ine0uality and where the dominant party exploits that position" consent is not a validdefence)I Taylor # M&-illi#ray – breach of fiduciary duty (2atient-Dr, context)

ote + M.(;.) # M. (") – limitation period for sexual battery does not run until the victim discovers the connection betweenthe harm suffered and the sexual battery (Areasonable discoverabilityB approach) – discovery often happens in therapy

ote = 4ome provinces have enacted special legislation to either extend or eliminate altogether the limitation period for bringing actions for sexual assault

ote ? Eenefits of a tort suit as a remedy in sexual assault cases: victim able to control proceedings and tell her3his own

story" the 2l, may have greater change of success" compensation for in.uries and conse0uences" help avoid self-blame that plagues many victims (empowering effect)

ote Challenging issue of damage 0ualifications (F.". # M&,ougall – held that the ordinary civil burden of proof appliedin sexual battery" not an elevated burden)

ote >


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ote + (@) 4ports Context: %gar # Canning (1!? Man. 2) – Def, hoc#ey player hit the 2l, with his stic# after beinghoo#ed by him, < person participating in hoc#ey must be assumed as having accepted the ris# the accidental harm and fre0uentinfractions of the rules of the game, 4ome limit is needed on player$s immunity from liability – actions that show a definitiveresolve to cause serious in.ury do not fall within the scope of consent, *he Def, hoc#ey player$s actions were found to not fallwithin the scope of implied consent,

+@rien # Cunard // Co. (Massa&husetts /C 151)

Facts: Def, surgeon vaccinated the 2l, while she was onboard a ship for small pox (due to 0uarantine regulations" you needed amedical certificate proving vaccination), 2l, said she had been vaccinated before and showed him her arm" however" there wasno mar# to ascertain this and the Def, surgeon vaccinated her again,%ssue: &hether the 2l, impliedly consented to the vaccination'eld: eseasoning:

• %mplied by: act in all the circumstances

• 2l,$s behaviour indicated consent (regardless of her unexpressed feelings) in the circumstances (lining up for the

purposes of vaccination" #nowing what you were there for" now verbally protesting)

Non Marine 9nderriters< $loyds of $ondon # /&alera (/CC 444)

%mportance 2l, in a battery action need not prove absence of consent" the burden is on the Def, to prove that the 2l,consented3that a reasonable person would have thought she consented (consent is only a defence)

• 2l, only has to show direct interference with her person

• Def, can argue they didn$t mean to do the act" that they weren$t negligent" or that the 2l, consented

• *o re0uire more would subordinate the 2l,$s right to protection (which battery is designed to protect) to the Def,$s

freedom to act

• Confirms the traditional approach to battery (however" 0ualifies that not every contact constitutes battery)

o %t must be contact 2764 something else (in other words – non-trivial contact which is harmful3offensive)

o Contact which falls outside that which is generally accepted3expected in the course of ordinary life

• *he act alone is not enough to show consent" the act must be considered in all the circumstances

o &ould the reasonable person imply consent with respect to the act in all the circumstances

Norberg # Wynrib (/CC 1)

Facts: 4ex for drugs deal" an addict trading sex for pain#illers from her old pervert Dr, (who initiated the deal),%ssue: &hether the 2l, consented to the sexual relationship

'eld: oeasoning:

• 8xploitation (Dr, initiated deal) sand %ne0uality

o Due to the une0ual power dynamic between a patient and Dr, who #new of her addiction and was exploiting

it for his own sexual benefit" the 2l,$s consent is not genuine (her consent is vitiated)o %ne0uality: Dr,$s power to prescribe" 2atient$s addiction and reliance on that power

atio: Case extends the contexts in which consent is vitiated to those which include exploitation and ine0uality (in addition tofraud" duress" force – existing contexts that vitiate)

Malette # /hulman (+nt C% 14)

Facts: 2l, was a ehovahs &itness that due to a car crash ended up in the hospital in need of a blood transfusion, 4he carried acard that explicitly refused a blood transfusion if she was not able to do so (unconscious), *he Dr, was aware of the card but proceeded with the blood transfusion anyway because she would have died without it,

%ssue: &hether the Dr, was entitled to disregard the card (disregard if due to the emergency)'eld: oeasoning: *he exception of emergency situations (and the defence of necessity) was inapplicable due to the existence of an


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'eld: eseasoning: *he Court finds implied consent" in that the testicle needed to be removed for the success of the hernia operation,

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