LAW 534 Lecture Notes - Lecture 4: Res Ipsa Loquitur, The Man On The Clapham Omnibus, Actus Reus
22 May 2018
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Lecture 4: Chapter 4
Introduction
• Recall:
o discussion on res ipsa loquitor at end of last chapter – appears again later in
chapter 4
o Chapter 4 is about general defences in a strict liability case (recall that chapter 3
is about the first part of a strict liability offence – actus reus)
o Chapte 4 is etitled Due Diligee ut atuall it aptues oe tha that. It
discusses the two general defences in a strict liability offence:
o Due diligence; and
o Mistake of Fact
o However, the large part of chapter 4 is focused on due diligence.
o Review detailed table of contents to understand the flow of the chapter
The reasonable person
• SCC statement on due diligence – clearly states that it is an objective test based upon
takig easoale steps to aoid the patiula eet
• Example used: Ontario (Ministry of Labour) v. Sunrise Propane Energy Group Inc.
o Review facts
o Note conduct of defendant even after the accident
o Was the government able to prove that Sunrise was negligent? That’s the wrong
question. Where is the burden of proof here? Sunrise was unable to establish
due diligence.
• Cout affis easoale peso test ad that good itetios sujetie ell
eaig is ot enough
• Note that case dealing with officially induced error will be discussed later on
• easoale peso is foud i a aeas of la uestio: Clapha oius? What
does that mean?)
• Key: due diligence is often linked to the establishment of a proper system
Res Ipsa Loquitor and the common law flaw
• Recall discussion of res ipsa loquitor – a well-known and long standing legal doctrine
(see end of Chapter 3 slides)
• Over-turned by SCC in Fontaine v. Loewen
• Wait…h ae e talkig aout a oe-turned tort doctrine in a course about
regulatory law?
o Show how the doctrine is based on flawed reasoning and cautions us to avoid
using it and to spot it when others are using it
o Regulato statutes ofte hae aspets of es ipsa louito tpe of thikig ad
authors feel a more rigorous analysis is required
• Res ipsa loquitor is logically flawed. Based on a flawed way of thinking known as the
epesetatie heuisti
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o Cornell Law Review article
▪ about jumping to conclusions based on limited data – flawed reasoning
▪ Although judges did better than previously studied groups, 40% of judges
still engaged in the flawed reasoning of the representative heuristic
▪ Example?
▪ 2nd Restatement has representative heuristic BUT the 3rd Restatement
corrects this by accounting for baseline data
• No oto the authos’ ai poit: due diligee easoig i the la a eed to e
more sophisticated:
o The ghost of es ipsa louito isits oe ofte i eioetal la ases
hee the ause of the pollutio a e uko
o R. v. Petro
▪ Review facts
▪ What is the dichotomy in this case?
▪ Authos’ itiue?
• Tempting to think that the any measures taken were negligent because ultimately they
failed
• Authors point to the danger of hindsight bias – important not only to remind judges and
juries but also in everyday risk management
Regulatory Offences: A paradoxical tale of two levels of risk analysis
• The apparent paradox explained: how to show due diligence if actus reus has been
proved and the actus reus itself includes a reasonableness component?
• Side discussion of a few interesting points:
o In some cases, society decides to move to a no-fault system which simplifies
things greatly (example: workers compensation, no fault auto insurance systems)
o Proof of a statutory violation can be used as evidence of negligence (Canada v.
Saskatchewan Wheat Pool)
o Negligence standard sometimes expressed as a function of severity of
consequences and probability of consequence (Justice Learned Hand)
• At middle of 4-17: authors are extremely astute and pick up on some very fine but
significant points
o Complex but essentially states that strict liability offences run into conceptual
problems if you really think about them:
▪ When coming up with them, we base it on risk-based standards
▪ But in evaluating conduct, we move to fault-based standards (i.e. you are
at fault if you did not exercise due diligence)
▪ A paradox can come out of this
o Excellent example: bait and switch provisions: you must have reasonable
uatities of goods of adetised agai pie goods o had
• Note that the prohibited act already has a built in element of reasonableness. So, if
ou oit the pohiited at ad did ot hae easoale uatities the ho
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