Answers

Answer for Case # 100: 1. The host of the party saw that the guest was drinking, but did not notice the amount he consumed. The hosts of the party knew that the guest had a previous history of drinking and driving. They also let the guest drive away from the party knowing this. However, there is no proof that they actually had seen the guest consume any alcohol. If they had, then this would be a case of the hosts knowingly allowing an intoxicated person to become a danger for other users of the road. Furthermore, the hosts did not provide or control in any way the amount that the guest had consumed. Just because they knew he had a previous history of drinking and driving does not mean that the hosts have a duty imposed by law to monitor the guest's alcohol consumption at a private party.

Answer for Case # 101: 2. These parties the aunt and uncle held in the past are irrelevant to the events that unfolded at this party. Dissimilar from Childs v Desormeaux even though the guests had brought and consumed their own alcohol, here it was relevant that in the past the Vetters had parties with underage drinking. The court found that the actions of the aunt and uncle in the past had “established a paternalistic relationship with intoxicated teenagers”. The fact that in the past the aunt and uncle had said they disapproved of underage drinking went against them in this case. This proved that they recognized they had a duty in law to prevent minors from a potential danger of a drunk driving accident. They understood that minors could not drink and they had a duty to exercise control. It was found that since the aunt did not exercise any control after her son woke her up even though she was aware that she had this duty, she had breached that duty. Future cases have distinguished this one including: Taylor v Liong – This case also involved a car accident. This case distinguished Prevost because in Prevost the court analysed the duty and standard of care and causation steps together to determine their judgement. This case stood for analysing them separately. http://www.canlii.org/en/bc/bcsc/doc/2008/2008bcsc242/2008bcsc242.html Remington Energy Ltd v British Columbia (Hydro & Power Authority) – In this case two pipelines which crossed the Peace River were fractured. This case also takes issue with the way that the Vetters’ duty and their standard of care and causation were all analyzed together, when they should be analyzed separately.http://www.canlii.org/en/bc/bcca/doc/2005/2005bcca191/2005bcca191.html Childs v Desormeaux – In this case, it was found that if one brings their own alcohol to an event it is not within the control of the hosts what their guest does and they have no duty to moniter the consumption of their guest. However, Prevost v Vetter is arguably different because the guests were minors and the Vetters had breached another duty by continually allowing minors to drink on their property with their full knowledge. http://www.canlii.org/en/on/onca/doc/2004/2004canlii15701/2004canlii15701.html

Answer for Case 103: 3. It is unreasonable to expect the employer to monitor the consumption of each employee who brought a vehicle. It was found that by requiring the employees to bring their vehicles to work that day and by providing alcohol to the workers, Nike made drinking and driving part of the working conditions on that day. It was considered to be a very obvious risk. Accordingly, Nike had failed to meet a standard imposed on an employer because Nike failed to provide a work environment in which the employees were safe from reasonably foreseeable harm. The employer also made no attempt to monitor the plaintiff's alcohol consumption and he knew - or should have known - that the plaintiff was likely to be impaired and was likely to drive. By creating such a situation, it did create a duty for the employee to monitor the consumption of the employees who brought vehicles. However, had the employer provided alternative transportation or had not really watched the alcohol consumption, but suggested that everyone take a taxi or called a few taxis the employer would likely have been released from this duty.

Answer for Case 104: 3. In the past, Flynn drank at work sometimes and his boss was aware of this. On those occasions they sent him home in a taxi. Although his company was aware that he had a drinking problem, they did not know that he ever drank while at work. They could not tell he was drunk and had no reason to suspect that he would drink at work. If they knew that he drank at work, then they may have been liable as they should have monitored him more closely. However, they had no reasonable reason to assume he was drunk at work. Just because a company is aware of an employee’s history with alcohol does not necessarily mean that the company should assume he is drunk at work. Since they had no reason to assume that he was drunk and he did not show signs of intoxication, they are not liable.

Answer for Case 105: 1. The host was not liable because a social host is not liable for what his guests do, unless they are minors. While the decision in Childs v Desormeaux did make it clear that usually a social host is not liable for injuries to a third party, this case made it clear that the door is not closed and that a social host is liable in the following three situations. “Where a defendant has intentionally attracted and invited third parties to inherent and obvious risks created or controlled by the defendant; where there is a paternalistic, supervisory or controlling relationship between defendant and plaintiff; and where the defendant is engaged in a public function or commercial enterprise that implies responsibility to the public.” Here, the host did not attract him to an obvious risk (the dissent for this case disagrees as the host knew that the guest had drank), there was no supervisory relationship, and the host was not a commercial host.

Answer for Case 106: 2. All four friends were drinking at the theatre and the man was just the most intoxicated of the four of them. In general, a commercial host that makes money off of serving alcohol should take notice of how much alcohol they give to one individual. In this case, the man showed no outward signs of intoxication. However, when a commercial host serves the same individual many drinks, they should take notice of how drunk that person is and the commercial host is liable to users of the highway if that person causes damage. However, in this case, the man’s friends were not drinking. The theatre would have been responsible if the man had been there by himself. But the man was accompanied by sober friends and that was the deciding factor of this case. It was found reasonable here that even if the theatre staff did notice the level of his consumption, it was fair to safely assume that one of his sober companions would be driving. Offering alternative transportation did not seem reasonable when he was with friends who were sober.

Answer for Case 107: 3. The hotel was only responsible because they had served him the alcohol that got him to that level of intoxication. The hotel was responsible for serving him the liquor, but that alone does not make them liable. Here, the hotel was also aware that he was intoxicated and that there would be a risk to let such an intoxicated person walk home on such a busy road. Even though the hotel cut him off and stopped serving him drinks, they still let him walk home and did not call him a cab or suggest that he stay in a room at the hotel. The fact that they knew to cut him off shows that they were aware of how intoxicated he was and they still let him walk home on a busy road while he was that intoxicated. This is why they were found liable.

Answer for Case 108: 1. The resort did not have a duty to absolutely force him not to participate once they noticed his condition. The resort should have completely stopped him from competing once they knew his condition. They did ask him to stop, but when he insisted he wanted to continue they let him. It is not acceptable for a resort to allow an incapacitated person to compete in a dangerous competition. It was very foreseeable he would be injured. Even though the participant had signed the waiver, he did not voluntarily assume the risk that he took. The waiver did not relieve the respondent of liability because the part relieving Sundance of liability was not brought to the participant’s attention and he never read it. ***This case is distinguished by - OCSKO v. CYPRESS BOWL RECREATIONS LTD. In that case, the guest fully read and understood the terms of the waiver. Here, Crocker did not really read it.

Answer for Case 109: 1. They should have noticed the man because he kept coming back and had distinctive features and this was why they were liable. The main reason that the bar was liable was that they had created a situation where they were unable to discharge their duty. Bars and places with liquor licences do have a duty to monitor the consumption of their guests and cut them off at certain points. Even though when he left they asked him if he was okay to drive and he seemed sober when he answered that he was, they should have been monitoring him. The fact that the design of the bar made that impossible does not release them from liability. Instead, there is negligence in designing the bar in such a way that the bar was not able to adhere to their duty in monitoring their guests and cutting them off at certain points of intoxication.

Answer for case 110: 3. Since the friend's conduct was illegal, the car owner's liability was reduced. There is a doctrine in law that states that ex turpi causa non oritur actio. This is a Latin phrase that means that a claimant cannot pursue legal action if the legal action against the defendant arises when they themselves are doing something illegal. Here it was found that ex turpi causa is used as a defense, but is not used to negate a duty of care that one owes. Here, the car owner owed a duty of care to users of the road as a driver and as such he should not have allowed an intoxicated person to drive. The car owner truly believed that his friend was not drunk. However, he had seen his friend drink 11-12 beers and even though in the car owner's definition that might not be considered drunkenness, by law it is. The owner of a vehicle does have a duty not to let an intoxicated person drive if they are in a situation where they can refuse to allow the intoxicated person to drive. Obviously, someone would not be found liable if an intoxicated person stole their car and drove it while intoxicated.

Answer for Case 201: Number 2 - If the nephew had just intended for her to fall, but not hurt herself, he would not have been held liable. Intent in law does not mean whether or not the defendant intended to commit the act in question, but whether or not the defendant intended to cause the natural consequences of his act. Even though the nephew probably just intended to play a prank on her and not to physically harm her by causing her to break her hip, it may be enough for him to be liable if he understood falling and harming oneself as a natural consequence of pulling back someone’s chair. It is clearly an obvious consequence that someone who tries to sit down on nothing may fall and get hurt.

Answer for Case 301: 4. If the teacher had made these statements to full grown adults, more capable of realizing that his opinions might not be true, he would not have been convicted. According to section 319 of the Criminal Code: 319. (1) Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of Defences (3) No person shall be convicted of an offence under subsection (2) o (a) if he establishes that the statements communicated were true; o (b) if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text; o (c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or o (d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada. It is clear that the other four correct responses listed above are listed outright as defences to this crime. But the language of section 319 clearly states that any hatred incited against an identifiable group counts as a violation of this provision. Even if he were making these statements to older, more mature individuals – if it was done to incite hatred and was still likely to lead to a breach of the peace then the age or maturity of the listeners does not matter.

Answer for Case 401: 2. Sleepwalking is a common mental disorder. The big issue for the Supreme Court of Canada in this case was whether the condition of sleepwalking can be classified as a "disease of the mind" (i.e. mental disorder automatism) thereby leading to a verdict of "not guilty for reason of insanity". For a defence of insanity, the accused needs to have a disease of the mind. What the accused did must be linked to the disease of their mind. It was found that sleepwalking is not a neurological or psychiatric illness. Therefore it cannot be considered a disease of the mind. Here, the accused raised a defence of non-insane automatism. This means that the act was involuntary, but his involuntary action was not linked to a disease of the mind, which leads to an acquittal.

Answer for Case 501: 1. The pose itself was just a pose of a person skiing and was not necessarily the skier's pose. Even though no children or parents mentioned that they thought it was the skier and his name was never used, this was still the skier's signature pose. The skier associated himself with this pose. This pose was distinctive to the skier and he used it to market his personality. Commercial use of this pose without his consent was an appropriation of his personality.

Answer for Case 601: 1. The driver owed a duty not to harm anyone and the boy was harmed. In tort law, you do not owe a duty to everyone in the world for everything. Here, the lorry driver’s responsibility was just to ensure that since he had affixed a box that was too big to go through a bridge, nobody would be harmed by it. The lorry driver is responsible for all harm that occurs because of the box falling off. But he is not responsible for all harm that occurs to anyone for anything. For example, let’s say the box fell off the truck and harmed nobody, but caused the road to be closed. Because the road was closed, a driver went onto a different road. On that other road, a speeding driver got into a collision with him. Without the fallen box, he would never have taken that other road and gotten into that accident, but the lorry driver is not necessarily responsible for this injury. It must also be addressed that it was found in this case that even though the lorry driver probably could not have reasonably expected the boy to be there, you still owe a duty to anyone who might be there when a danger caused by your negligence materializes, regardless of the reason the person is there.

Answer for Case 602: 1. If the guard had intentionally taken the package and thrown it, the guard would be liable to the woman. It was found that Railway Co. was not liable to the woman because she was not within the zone of danger. She was too far from where the actual event occurred. Even if the guard had thrown the package right onto the platform, the woman was too far to be able to claim from them. She was not within the zone of danger. Other passengers who may have been within range of the guard throwing the package may be able to sue, but the woman was too far to have a claim against the guards. Negligence and intentional torts do not allow anybody to sue anybody for anything. You are not liable if you hurt someone who is not within a reasonable zone of danger.

Answer for Case 603: 1. The owner should have built a fence to protect this from happening to anybody. The test that the court used here was whether or not the risk of damage to a person on or across the road was such a small risk that a reasonable person in the position of the owner would have considered it okay to refrain from taking the steps to avoid this danger. Here, they took into consideration that the injury itself was extremely remote. It was foreseeable that this could possibly happen as the ball had entered that range 5-6 times in the past 30 years. There had been zero injuries from a ball exiting the course since the cricket field was made 90 years ago. However, here it was found that the a reasonable cricket course owner would not have undergone the expense to protect from this risk as it was so remote. In the past 30 years only 5-6 balls had gone into that area. The chances of the ball actually hitting a person were much smaller. It would not have been reasonable to have built a fence for something that had such an extremely small chance of ever occurring. Bolton knew that a possible injury could have occurred and did not build a fence and the courts accepted this as the actions of a reasonable person as the injury was so remote.

Answer for Case 604: 1. The motorcyclist could see the woman when he was riding, but was nowhere near her when the crash actually occurred. For a negligence claim to be successful, the woman would have had to establish that the motorcyclist owed her a duty of care. For this to be found, it would have had to have been foreseeable that she could be harmed. He could not see her at all while driving. She was not a pedestrian on the road. She was standing behind a tramcar, which is a solid barrier. He was driving recklessly and is liable to the car that he hit, but his reckless driving in no way caused any danger to her. It is not reasonable to expect that he could anticipate that his driving recklessly would cause a noise that would shock someone who he cannot see. The woman was not within the zone of danger. He was not responsible to her. Had she been standing right in front of the collision and clearly visible to the motorcyclist, this case may have been decided differently.

Answer for Case 701: 3. Had the staff just ignored her when she collapsed they still would have been liable. Had the staff just ignored her and let her collapse on the floor of the store they would not have been liable. They did not have a duty to rescue her just because she was in their store when she collapsed. But since they started to help her, they had a duty by law to help her properly. Had the staff done nothing, it is likely that another customer may have called an ambulance for the woman. Once the staff intervened and took her to their infirmary, they had a duty to be reasonable in taking care of her. Instead of calling an ambulance, they left her unattended for six hours. They left her in a room away from customers where nobody else could have known to call an ambulance. Had there been a doctor in the infirmary who took care of her it would have been different. The rule that comes from this case is that by law, a person has no duty to rescue someone who is injured in front of them if they had nothing to do with causing the injury. But, a person who intervenes with someone who is injured in front of them has a duty to take all reasonable steps to help rescue them. Once they intervened and took the woman to a place where nobody else could help her, they had a duty to do all that was reasonable and it was found that leaving her unattended for 6 hours in the infirmary was not reasonable.

Answer for Case 702: 3. The police did not think that the attacker would strike again. This case does not stand for the rule that if the police know a criminal is at large then they are absolutely responsible for warning everyone in the world who might be affected. However, here the criteria were specific enough. They knew the attacker went after young, blonde, attractive women, with second floor balconies who lived in that neighbourhood. This was considered specific enough that they should have tried to warn or notify her. It was found as fact that the police did not warn her because they thought the attacker would attack again and this would allow them to catch the attacker. The woman felt that in doing this, the police were using her as bait to catch the attacker.

Answer for Case 703: 1. The boat owner was responsible for their safety because he had rented them the boat, but since it was their own fault the boat capsized he did not have to go rescue them. Even though the boat owner gave them the boat, had the ability to save them, and knew that they were intoxicated when he gave them the boat, he had no legal duty to rescue them. Obviously, morally his actions were terrible, but in law there is no legal duty to rescue. A person does not have a legal duty to save someone and cannot be sued for not saving someone even if they are fully capable of doing so.

Answer for Case 704: 3. The rescue that the boat owner attempted was unreasonable, but he had no duty to rescue. As established in previous questions, there is no legal duty to rescue someone, but once you start rescuing them you have to take all reasonable steps to rescue them. The boat owner did not follow the recommended procedure, but it was found that the rescue attempt that he tried was not so egregious as to be unreasonable of a boat owner. Since the passengers died from the shock of the cold water and not from drowning, it was found that in this case even if the boat owner had carried out the recommended rescue procedure it cannot be proved that this would have saved them, and it likely would not have. Therefore, the boat owner was not found liable and it was found that while his rescue attempt was not the recommended procedure, it was not so egregious as to make him liable for what happened to his friends.

Answer for Case 801: 2. The boy acted like any boy his age would have in such a situation. When determining whether or not a child is liable, the question is put to the jury whether the child exercised the care that would be expected from a child of the same age, intelligence, and experiences. If the boy had acted like any boy of his age who possessed his knowledge, then he would not have been liable at all. Here, it was found that the boy was somewhat below the average standard of intelligence for a boy his age, he was still aware of the damage that could be caused by a gun. He was capable of appreciating the danger of playing with a gun. The same was found for the friend. Even though he was young and it is understandable that young boys who see guns may be tempted to play with them, putting a bullet in the gun was negligent of the friend as he had the capacity to understand the dangers that this could potentially lead to even though he was so young. Obviously in this case the father is at most to blame for leaving the guns where his son could find them. He should have figured that his son might play with them. While it is true that he did not leave the guns loaded, the friend was still able to find the bullets and load the gun.

Answer for Case 802: 1. Another child her age would have understood not to run across the road. Even though the girl was only six, it was strongly considered whether or not she was contributorily negligent. The test is to compare her to children of the same age, intelligence, and experiences. This particular child knew about road safety. She was taught road safety at school and by her father. However, it was found that such a young child, even with this training about road safety would still likely run across the road without looking sometimes. It was found that a normal 6 year old may dart across the road after seeing their sister even though they understood the dangers of the road. Since she did what the average 6 year old is considered to do, she was not held contributorily negligent for her accident.

Answer for Case 803: 1. If the children were not playing on a snowmobile, but playing with weapons they still would have been found liable. The ruling in this case teaches us that if a child is involved in an activity that is considered to be an adult activity, then they do not get the same benefit of the doubt judgement that is usually given to a child of a similar age, knowledge, and experiences. Adult activities include: driving a car, snowmobiling, golfing, or hunting. If a child is doing one of these activities, then they are required to meet the standard of care that we expect from a reasonable adult, not from a child of their age. In this case, it was also found that the boys did have the knowledge and the experiences to understand and appreciate the consequences of their actions, thereby making them reckless for doing these actions anyway. Even though they were judged to the standard of a reasonable adult as they were doing an adult activity, it was discussed that the average child their age and children of like minds, knowledge, and experiences would have had the sense to act differently.

Answer for Case 901: 1. If the surgeon had done the procedure incorrectly, but it could be proved that other surgeons may have made the same mistake he still would have been found liable. For professionals, such as doctors, the standard of care they are expected to follow is different. Doctors are required to perform their duties in such a way that a reasonable person in their profession would consider their efforts satisfactory. If a doctor makes a mistake, but it is such a mistake that a professional doctor would consider reasonable, then the doctor is not liable. That was the test in this case. Here, it was found that a reasonable surgeon would have taken two hours to perform the surgery at the very least. He performed the surgery in one and a half hours. He also did not do a proper check when he finished the surgery to see if enough tissue had been removed. This check is the standard practice for this procedure. Therefore, the doctor was found liable for not adhering to the standard of care of a reasonable professional in his field.

Answer for Case 902: 3. The standard of practice itself was negligent, so it is unfair to hold the doctor liable for this. In general, if the standard practice fails to adopt obvious and reasonable precautions which should be readily apparent to the defendant then the practitioner does not have an excuse even if he is conforming to the standard practice. If the standard practice is so egregious and dangerous that a reasonable doctor would be able to tell that this standard practice is reasonable and dangerous then he still could be held liable for following the standard practice that he was taught. This may sound unfair to the doctor, but medical research is forever expanding. A doctor may be taught a certain way to do a procedure and then research will be released showing that there is a safer way. Doctors have a duty to be informed of this. If they do not adopt the newer safer practice and stick to the old practice they first learned, they may be liable. Here, while there was medical research in existence that had considered the possibility of contracting HIV through artificial insemination procedures, this information was not widely released. It was found that this doctor could not reasonably have been expected to be aware of this. The research was not conclusive nor was it widely published.

Answer for Case 903: 3. It is the standard practice to send people with such minimal symptoms home and that is why the doctor was not liable. Here, it was decided right away that the doctor was negligent in not admitting the man to the hospital. However, it was also found that this negligence did not cause the man’s death. This case was decided on the basis of the ‘but-for’ test. ‘But for’ the doctor’s actions would the patient have died? It was found that the doctor’s negligent act was not admitting him to the hospital. His symptoms were enough that he should have been admitted. However, a reasonable doctor would not have administered a test to see if he was poisoned based on his symptoms even if he was admitted. The doctor’s negligent act was not admitting him, but even if he was admitted the man still would have died if the doctor had followed proper procedure. Therefore, the man did not die because of the doctor’s actions. If the doctor had done more, the man probably still would have died and it is therefore unfair to hold the doctor liable for this.

Answer for Case 904: 2. A doctor trained in medicine should have noticed her dizziness. This trial was very difficult. It seemed obvious that a reasonable person (not a reasonable doctor) would have noticed her dizziness or had a nurse in the room. But the test here is what would a reasonable doctor have done in that situation. It is true that he followed the medical procedure directly and that was enough to make him not liable for what happened to her. At his trial, it was mentioned that as a trained doctor he should have noticed her dizziness. But it was found that her dizziness was not that apparent and it was his job as a professional to administer the test and he did and he did the test properly. We judge him to the standard of a doctor of that type performing that test in a reasonable way and not to the standards of a person who is not a doctor who would perhaps act differently if someone told them they had trouble walking.

Answer for Case 1001: 3. This advertisement alone was enough to make this contract legally binding. While it is true that an offer made to the public can be a legally binding contract if the consumer accepts that offer, surrounding circumstances must also be analyzed. The intention of the person who made the advertisement is also very important to analyze. The main thing to look at is not just that the offer was made, but whether or not the offer showed intent to be bound. Here, the fact that the offer was made in the newspaper, the secretary confirmed it, and the doctor never made a new contract with the woman or mentioned that he did not guarantee the results in any way all led to finding that there was a contract. It was not just the offer in the newspaper itself.

Answer for Case 1101: 2.The neighbour’s statement caused emotional upset to the man with the lawn mower, but he was never physically disturbed in any way. In the Criminal Code, to be a disturbance, something has to cause emotional upset. It must also be something that interferes with the public’s use of a public space. It has to be more than just upsetting to the individual, but it has to interfere with their use of public space. Since it was clear that the neighbour was not actually going to shoot him, it was found that he could not have been upset to the point that his use of a public space was disturbed and the neighbour was not charged.