Pages 155-56 of the LKF casebook give you a sense of what's required to establish liability for negligence. Read those pages. Though there are many ways we could structure an analysis of negligence (and a course about it), one thing every plaintiff pleading negligence must do is establish that the defendant owed the plaintiff a "duty of care." Absent a duty, a defendant can act as carelessly as he/she/it pleases. There will be no liability.
Whether or not a duty is owed is a question of law. That means it isn't something you prove by adducing evidence. Rather, you prove a duty exists by applying the law to the facts. Often, duty is decided in preliminary proceedings before trial. (That's one reason I'm starting our analysis with this issue.) So the plaintiff's pleadings about the facts of the case are assumed to be true. This procedural point has consequences that we'll talk about as we go through this topic.
The seminal case on duty of care is Donoghue v. Stevenson, perhaps the most famous case in all of the common law. The casebook includes extracts from the judgments of Lords Atkin, Macmillan and Buckmaster. Read those and the other materials on pages 281-7. That's not a lot of reading, so be thorough and take time to reflect. We'll discuss this case and its profound impact on tort law after watching a documentary, "The Paisley Snail." If you want to, you can actually see digital images of the original court documents pertaining to the case. And you might be amazed (or appalled?) at how many modern law students have spoofed this case.
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Since Donoghue v. Stevenson, there have been a million decisions we could talk about. Over the remainder of the term, we'll focus on only a few. Cooper v. Hobart is one of the most important (and problematic) Canadian tort cases in the past quarter century or more. Read it carefully, and don't forget the notes that follow (pp. 287-302). I also want you to look closely at the Supreme Court's most recent attempt at solving the duty dilemma: Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38. Note that the case has nothing to do with Syl Apps, the hockey player.
From here, we're going to delve into some specific duty-related topics with a number of guest speakers. Professor Ian Kerr will discuss duties to the unborn. He's got unique insights, having actually been involved in the litigation surrounding Dobson v. Dobson. And he's one of the best teachers at our law school, so this class is sure to be interesting. To prepare, read pages 302-310. (I'd bet he isn't expecting you to read his own work on the topic, but you might want to check it out anyway.)
UPDATE: I have to admit I was a bit surprised that the Oregon whale wasn't the only one to have exploded. In fact, there's an entire website dedicated to exploding whales. The site also features an edited but hi-res version of the news story. Here's the original.
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We're also extremely lucky to have the Honourable Justice A.M. Linden visit our class. Not only did this self-professed tort-a-holic literally write the book (books, in fact) on Canadian Tort Law, he's one of the most widely known, well respected and personally likable judges and scholars you'll ever encounter. Readings will be announced as the date of this class approaches.
After the Thanksgiving holiday, we'll cover the topic of "host liability." Read pages 316-322 regarding commercial hosts, and the Supreme Court's recent decision in Childs v Desormeaux (instead of the trial decision in your casebook). I've published a comment on this case in the Tort Law Review, but rather than reading my opinions you should make up your own minds.
We'll revisit duty of care throughout the term, especially in respect of specific issues such as "Warnings" and "Biotech Torts." But our last dedicated class on topic will involve review of a practice problem. There's no reading for this last class, but you must make a serious effort at solving the problem on pages 340-341. I'm not into surprises, so am telling you right here that there is guaranteed to be an exam question involving duty of care, and it is going to look a lot like this problem. So do it.
I am an Associate Professor at the University of Ottawa's Faculty of Law. My expertise is in the area of technology and intellectual property law. Read more details or follow me on twitter.
