Final project of the Year – Civil Law Torts Congratulations! You’ve graduated from law school; you’ve passed the bar exam and are eligible to practice law in British Columbia. Your grandparents have unfortunately “passed on”, but in their will they’ve left you a cool two million dollars. After some less than prudent spending of money on things we will not mention here, you have become the founding member of a new law firm. You’ve set up shop, hired some junior partners and are ready to go to work. After a savvy advertising campaign, the following people have come through your doors for an initial consult. You will need to choose two of these ten potential cases and provide a one-page memo/letter for each on the possibilities of a successful lawsuit. Each memo needs to address issues specific to each case, and these issues will be mentioned at the end of each case. You do not necessarily have to choose a case where the likelihood of a successful lawsuit is high, you may choose a case and indicate to that client that they should not proceed with a lawsuit. In that instance you will need to indicate why they will not be successful in litigation. Don’t forget that your memos to your clients should be on that snazzy new office letterhead, seeing that it’s your own company and all.
CASE 1 On July 15, 2023, a cruise ship, the Abitibi, cast off its moorings in Victoria to set sail on a Juan de Fuca Strait voyage. It was a sunny day with a light wind. The ship entered the outer harbour, where a mix of recreational boats was zipping in and out of marinas and around the harbour. All the boats stayed a considerable distance away from the cruise ship. All steered clear but one that is. As the Abitibi moved through the outer harbour, towards the open waters of the Juan de Fuca Strait, a sailboat called the Yankee moved directly into the Abitibi's path, about 100 metres ahead, and then took up the same course the cruise ship was following. The Yankee was a beauty - 36 feet long, single masted, and worth about $350,000.00. The captain of the Abitibi spotted the Yankee in its path, and immediately ordered that the ship's engines be reversed, and that the ship's sirens and horns be sounded in warning. Even with the ship's engines in reverse, in a very short time, the Abitibi overtook the Yankee and cut it in half. All those involved in the accident agree that the captain and others responsible for the Abitibi exercised impeccable care in the circumstances. There were three passengers on board the sailboat: Shett Klort, 45, the owner and an experienced skipper who had sailed the Yankee for 12 years; his 15-year-old son Velonte Lomar; and Rhianna Silwon, 47, a friend of Shett. Shortly after setting sail and a quarter hour prior to the collision, Shett had left Velonte in charge of the sailboat and gone below deck with Rhianna to prepare lunch. Velonte was an experienced sailor - he had successfully completed sailing courses offered by the Canadian Yachting Association, raced smaller sailboats, and had taken the helm of the Yankee on previous occasions without incident. When Shett and Rhianna went below deck, Velonte put on the air pods from his iPhone, cranked up the volume listening to Young Thug and Camilla Cabelllo blissfully singing; “This is history in the makin', homie (Homie) Point blank, close range, that B (Tah, tah) If it cost a million, that's me (That's me) I was gettin' mula, baby” He settled back to enjoy his status as temporary captain and was thinking his heart was in Havanna, but his mind should have been focused on piloting the boat in Victoria because his ride ended abruptly. He did not hear a thing until the Abitibi hit. The next thing Velonte knew, he, his father Shett, and his friend Rhianna were in the water. Miraculously, all three had been thrown clear by the force of the impact and sustained relatively minor injuries, although the sailboat itself had been smashed. Within minutes of the collision, a large motorboat came speeding up to the wreckage, presumably to try to assist the survivors. Unfortunately, in his haste to help, Paxton Ball, the driver of the motorboat, came straight at them without perceptibly reducing speed and hit Rhianna, seriously injuring her arm, which ultimately required amputation as a result. You are a lawyer who Rhianna has approached for advice on whether to initiate a civil action. Advise Rhianna as to the likelihood of recovering damages for the loss of his arm in negligence actions against: (i) Shett Klort, the owner of the Yankee; (ii) Velonte Lomar, the youthful skipper; and (iii) Paxton Ball, driver of the motorboat. In your answer, please specify any missing factual information you would need to be able to advise Rhianna more confidently.
CASE 2 Last Friday night, Lola DiGiovanni held a surprise party at her house, where she lives alone, to celebrate the 25th birthday of her friend Castrol Kosil-Raccon. Thirty other guests -- all Castrol's friends and family -- were present. Lola provided 10 bottles of champagne and asked guests to bring their own "booze". By 8 P.M., when Castrol arrived to loud cheers, Lola's fridge was overflowing with beer, wine and champagne. It was a balmy night and the party spilled into the backyard and onto the second-floor deck of Lola’s two-storey home. As the evening progressed, the party became more raucous. Several guests were noticeably intoxicated, and Lola had called a taxi to take one particularly inebriated guest home. The music was loud, and several guests were dancing on the second-floor deck. Around the deck was a 3 foot-high wooden fence. Castrol’s sibling Feldina, who had a reputation for being "wild and crazy" especially after having had a few drinks, climbed onto the top of the fence with a bottle of champagne in hand wearing a white lampshade on their head, and proceeded to do their best Marshmello imitation with the other guests cheering them on. Right in the middle of the song "FRIENDS", Feldina lost their balance, and fell to the ground below. Lola was in the kitchen at the time, where she had spent much of the evening cleaning up and making sure that all her guests had drinks. She heard a commotion outside and rushed to the backyard where she found a ring of revelers surrounding an unconscious Feldina bleeding profusely from a head wound. Lola promptly fainted and fell to the ground next to Feldina. At this point, Cliff Avery, another guest who was a medical student completing his internship, took charge of the situation. Cliff yelled, "stand back, I'm a doctor", told one guest to call 911 and order an ambulance, and told others to get blankets. Cliff then attempted to wrap Feldina's head with a clean cloth to stop the bleeding, but in doing so, perhaps because it was dark and he had had a few drinks himself, Cliff aggravated Feldina's head injury. The ambulance arrived several minutes later. Feldina died from the trauma and accompanying blood loss later that night in the hospital. The doctors at the hospital have stated that if Feldina's head had been wrapped properly, they would probably have survived. It turns out that Feldina’s wild behaviour of late was partly a reaction to the news Feldina received a year ago that they had an untreatable form of cancer and had anywhere from 6 months to a year to live and Feldina was living day to day when they died. Feldina’s surviving family members are considering bringing actions in negligence to recover damages for a wrongful death. Pursuant to the Family Law Act, they have a legal right to recover damages from any defendant that negligently caused damages to Feldina. Write a memo discussing any possible liability in negligence and evaluating the likelihood of any action(s) succeeding against any potential defendants.
CASE 3 Linus Millar is a first-year law student who commutes to the Peter A. Allard School of Law at U.B.C. from home in a small southern British Columbia coastal town. Last June, on a balmy Sunday afternoon, Linus was reading a tort casebook in a favourite spot in the public park along the shore, lying in long grass between sand dunes near the beach. Naturally, Linus fell asleep, but awoke abruptly, screaming with leg pain. It took a moment for Linus to realize that three dirt bikes were disappearing in a cloud of dust over the sand dune, and that one of them had run over Linus’s legs. It turned out that Linus had suffered a broken left leg. Linus will be in a cast and on crutches for several months; after that time, is likely to suffer chronic pain and discomfort in one leg, but Linus’s mobility is not expected to be affected. The doctor informed Linus that the nature of the injuries clearly indicates that only one bike ran over Linus. Nobody saw the actual accident occur, but many people on the beach saw the three motorbikes emerging from the dunes on their way towards the water. The dunes were popular spots for sunbathers, while bikes and all other vehicles were not permitted in the park by municipal regulation. Two of the bike riders were later identified, by witnesses, as notorious local 16-year-old troublemakers Jon Finnseon, and Thomkin Dacmonnell. The driver of the third dirt bike was a mystery teenager named Ocean VeDanney who has since disappeared without a trace. Jon, Thomkin and Ocean had been hanging around the mall together until they got bored and had decided to race to the beach and in so doing, they all took the shortest route across the dunes. Neither Jon nor Thomkin saw Linus, and both have said that they did not feel any impact with a body as they sped across the dunes. Several weeks after the accident, Linus attended a Vancouver Canadians™ game at Nat Bailey Stadium. Linus is an avid fan who regularly buys seats in the first base bleachers. This time, however, Linus sat in the special section reserved for fans with limited mobility, as it was difficult to get around on crutches. Right in the middle of "Take Me out to the Ball game" during the seventh inning stretch, a chunk of concrete fell off the ceiling above Linus's head and landed on Linus’s outstretched left leg. Linus's left leg was completely crushed and had to be amputated. Advise Linus on the possibilities of recovering damages in negligence actions against (i) Jon and/or Thomkin, and (ii) Vancouver Baseball Inc., the owners of Nat Bailey Stadium. In your answer, be sure to specify any missing factual information that you believe it will be necessary to have in order to make a confident assessment of Linus’s chances of holding any or all of these potential defendants liable, and also be sure to specify what damages are likely to be recoverable from each defendant in the case of liability.
CASE 4 In April 2023, two friends, Morwyn Vasille and Jestanee Hamelynn, decided to take a ski trip to Snowy Mountain Resort near Nelson, BC. Morwyn had little experience skiing, while Jestanee is a strong skier. Morwyn rented a pair of skis from Snowy Mountain Rentals which is owned and operated by the Resort. Ishbak Sareene, the sales assistant, who is employed by Snowy Mountain Resort, suggested that Morwyn also rent a helmet for safety purposes. Morwyn asked whether she must rent one, saying they look “kind of dorky”. Ishbak laughed and said, “Yeah, they do! The Resort makes us tell you to rent one, but I wouldn’t be seen dead wearing something that ugly.” Morwyn left the store without a helmet. All skiers at Snowy Mountain purchase a lift ticket that includes a waiver of liability on the back. The waiver states that skiing is a dangerous sport and skiers accept the usual risks associated with skiing. The waiver does not mention liability in situations of negligence. Morwyn and Jestanee purchased their lift tickets and proceed to the chair lift. After an unusually warm winter, the ski season was coming to an early end. Several runs were closed at Snowy Mountain Resort because of dangerous conditions and there was an avalanche warning in place for a resort just 30kms away. While skiing on one of the lower runs — Pipeline — Morwyn and Jestanee noticed several large rocks sticking out of the snow in the middle of the run. Morwyn became quite fearful given that she is a beginner skier with limited control. When they reached the bottom of the run, they complained to Kordan Race, a chair lift operator, who responded, “It’s the resort policy that we check the runs every four hours, but the snow is melting so quickly this spring that it’s impossible to keep up. We’re low on safety inspectors now because a bunch of them are at a training session, but I’ll see if I can track someone down to check on the run.” Morwyn and Jestanee described where they saw the rock and Kordan wrote down the information. Morwyn and Jestanee headed off to a different part of the mountain, but soon found that the runs were too challenging for Morwyn. Eventually they returned to ski the Pipeline, avoiding the area where they saw the rocks. On her way down, Morwyn unfortunately encountered another exposed rock. To avoid it, she found herself skiing out of bounds. Extremely shaken, she decided to remain out of bounds as the snow appeared deeper and she couldn’t see any other rocks. As she rounded the final bend in the run, Morwyn was suddenly confronted with a cluster of trees. She swerved to avoid them, but as she did so, the clasp on the binding of her left ski broke open, causing her to lose control. Her ski came loose and hit her in the face, resulting in a deep laceration on her nose and cheek. Almost immediately after, she struck a large rock and suffered a second more severe blow to her head. The rock was located at the very edge of the run near a small sign stating, “Danger - exposed rocks! Stay in bounds.” Following the accident, Morwyn suffered from loss of memory, migraines, and regular blackouts. Her injuries make it impossible to return to her job as a teacher. The doctor’s prognosis is that the migraines and blackouts will continue but become less frequent over time. The laceration on Morwyn’s cheek resulted in nerve damages, causing the left side of her face to sag. Embarrassed by her appearance, Morwyn becomes a bit of a recluse, refusing to socialize with anyone but old friends. Expert evidence indicates that the clasp on the binding on Morwyn’s ski had been worn down by repeated use. Such wear is visible to the naked eye. Resort employees are instructed to check bindings for wear on a “regular basis” and withdraw the skis from circulation if the wear becomes excessive. Advise Morwyn on the possibilities of recovering damages in negligence actions against (i) Ishbak and/or Kordan, and (ii) Snowblast Inc., the owners of Snowy Mountain Resort. In your answer, be sure to specify any missing factual information that you believe it will be necessary to have in order to make a confident assessment of Morwyn's chances of holding any potential defendants liable, and also be sure to specify what damages are likely to be recoverable from any defendant in the case of liability.
CASE 5 Naomi Round and Payta Larsons, both 22 and students at the University of Victoria, have been best friends for 15 years. They now share an apartment in downtown Victoria close to the campus. One evening after a particularly unpleasant midterm tort law examination, they went drinking at the WICKY STICKET PUB situated on Government Street, a busy thoroughfare just north of the inner harbour. There is no parking lot at the pub, and two bus stops are located within a few minutes’ walk in either direction. The two women rode their bikes to the pub. They stayed for three hours, from 9 to 12, and consumed thirty 8 oz. glasses (half pint) of beer between them. The staff at the pub continued to serve them even though they were both visibly drunk by 11 o'clock. A patron at the table next to them recalls that they were loud, wobbly on their feet, "clearly having a good time" in his words, but not unruly or out of control. Apart from taking and delivering their orders for beer, the staff at the WICKY STICKET PUB did not speak to either Naomi or Payta before they left at midnight. As the two women were riding their bikes back to their apartment, a tragic accident occurred. A few blocks from the tavern, Naomi Round was run over by a Victoria Regional Transit bus. She died several hours later in hospital. There were no witnesses to the accident and therefore nobody knows how the collision came to pass. Marks on the bus, and evidence at the scene, have enabled investigators to ascertain that Round's bicycle collided with the bus, that she was knocked down and then crushed by the rear wheels of the bus. The bus driver, Georgia, was not aware of the accident until VRT officials contacted her later along her route. Payta Larsons had fallen behind Naomi and turned a corner to discover her friend's body a few moments after the accident had occurred. She screamed for help, yelled at the passers-by to call an ambulance, and accompanied her friend to the hospital. Georgia is tormented by guilt and nightmares and has been unable to return to work. Payta too is suffering from the loss of her friend. Payta and Georgia are both suffering from recognizable psychiatric illnesses (PTSD) that were caused by the shock of the accident. Advise the WICKY STCKET PUB and the VRT on whether they can be held liable for Naomi Round's death or for the nervous shock suffered by Payta and Georgia. Statutory Provisions Liquor Licence Act, B.C.S. 1990, c.L.19, s. 39. 39. The following rules apply if a person or an agent or employee of a person sells liquor to or for a person whose condition is such that the consumption of liquor would apparently intoxicate the person or increase the person's intoxication so that he or she would be in danger of causing injury to himself or herself or injury or damage to another person or the property of another person: 1. If the person to or for who the liquor is sold commits suicide or meets death by accident while so intoxicated an [wrongful death] action under Part V of the Family Law Act lies against the person who or whose employee or agent sold the liquor. 2. If the person to or for whom the liquor is sold causes injury or damage to another person or the property of another person while so intoxicated, the other person is entitled to recover an amount as compensation for the injury or damage from the person who or whose employee or agent sold the liquor. Motor Vehicle Act, B.C.S. 1990, c. H.8, s.193 193. (1) When loss or damage is sustained by any person by reason of a motor vehicle on a highway, the onus of proof that the loss or damage did not arise through the negligence or improper conduct of the owner or driver of the motor vehicle is upon the owner or driver. (2) This section does not apply in cases of a collision between motor vehicles or to an action brought by a passenger in a motor vehicle in respect of any injuries sustained while a passenger.
CASE 6 Colter Chucksaw and his friend Kyran Morewhit, two 15-year-old students, had several strong alcoholic drinks at Colter's house while his parents were out of town. Kyran suggested that they take Mr. Chucksaw’s two-ton pick up truck out for a drive. Although neither Colter nor Kyran had driver's licenses, and despite Colter’s parents' explicit prohibition against driving, Colter agreed to the plan. Mr. Chucksaw delivers propane tanks to cabins around their rural Vancouver Island home. At the time, the "Chucksaw’s Propane and Propane Accessories" truck was loaded with 20 tanks. Each tank was three feet high, two feet in diameter and weighed 50 kilograms. As Colter and Kyran jumped into the cab of the truck, they failed to notice that a rope or chain did not fasten the tanks as they usually were before Mr. Chucksaw set out on a delivery. Moreover, as the two friends failed to inspect the back of the truck prior to setting out along the highway, they also failed to notice that Branden Harvey a 12-year-old neighbour of limited intelligence and delinquent tendencies, had stowed away on the back of the truck amongst the cans. An inspection of the truck, which was open at the back, would have revealed both the lack of security and the presence of Branden. Colter and Kyran set off for town. As Colter drove the truck over the Punteledge River Bridge, Branden emerged from hiding and slowly pushed one of the tanks toward the back edge of the truck. Just as Branden was about to yell, "bombs away!" and give the tank a final push, the truck, which was traveling above the speed limit of 60 kilometers per hour, hit a bump in the road and the tank fell off the truck. The can took a strange bounce and landed on top of the three-foot railing of the bridge, balanced there for a moment, and then toppled over toward the Punteledge River 50 feet below. Unfortunately, Etta McMorland was fishing in a small boat in the middle of the river. As luck would have it, the 50-kilo tank flew into the boat, smashing it to bits and hurling Etta into the cold water. Etta contracted pneumonia and was confined to bed for three months. As Etta was getting out of bed one day towards the end of her illness, she fell because she was so frail and broke her leg. Etta’s doctor negligently set it in such a way that she now walks with a permanent limp. Meanwhile, Colter had continued driving over the bridge, oblivious to the tank episode. On the other side of the bridge, he saw his older brother's girlfriend Medow Tchukka walking to work and offered her a ride. Medow got in and sat next to Kyran; she soon realized that Colter was drunk and very tired. She twice asked him to slow down. She thought about getting out of the truck, but she was late for work and decided to stay. As a result of his speeding and intoxication, Colter lost control of the truck and drove into a streetlamp. All the occupants of the truck suffered temporarily incapacitating physical injuries from which, thankfully, they all have now completely recovered. Branden suffered internal injuries when he was crushed by several propane tanks in the back of the truck and missed a year of school. Kyran, Colter and Medow would not have suffered as severe injuries had they been wearing seatbelts. Kyran and Colter were also unable to attend school for a year. Medow missed work for six months, but she would have had to miss two months anyway because of elective surgery she had scheduled. Medow, Kyran, Branden and Etta have all sued Colter for their losses. You work for the firm that is representing Colter. Write a memo outlining any liability in negligence that Colter has incurred and identify any defenses that he may use in any case brought forth against him.
CASE 7 In 2020, Vaughn Tapperson was a teenage phenomenon and rising country music star. In a feature article, People magazine hailed him as the “Next Kenny Chesney”. His mother, Ocean in Courtenay, B.C., raised Vaughn because his father died when he was an infant. In 2020, Ocean quit her job as a travel agent to devote herself full-time to managing Vaughn’s career. Ocean made all important decisions for Vaughn, including the hiring of band members, handling financial matters, booking shows, dealing with the media, and arranging Vaughn’s wardrobe, hairstylist, and make-up. Concerned about Vaughn’s lack of success in school, she even gave lessons to Vaughn when the mother-son team was on the road. Vaughn is a teenager of average intelligence, but his focus on his singing career had compromised his studies and development of ordinary social experiences. Vaughn’s first CD, “Now and Here”, released in 2020, generated significant radio play and music industry interest (with his hit “Lips of My Mouth”). In July 2021, Vaughn, at the age of 15, was on the verge of signing a multi-album deal with Warner Music Nashville when everything went off the rails. That month, Vaughn got in a fight backstage at the Sunfest Country Music Festival, in Duncan BC, with his country singing rival, 16-year-old Cierra Pacey. Cierra was extremely jealous of Vaughn’s success. When Vaughn teased Cierra about her sequined outfit and taunted her about the fact “she couldn’t buy a record deal”, Cierra challenged Vaughn to a fight so she could “make his face even uglier”. Vaughn rose to the challenge, and the two teenagers started slugging it out. Towards the end of the fight, Cierra landed several solid punches to Vaughn’s face, breaking his nose and cheekbone. According to witnesses, Cierra delivered the damaging blows when Vaughn was down on the floor pleading for mercy, and Vaughn’s bodyguard was trying to pull Cierra off Vaughn. After the fight, Vaughn consulted a plastic surgeon, Dr. Lula Manlesher. After discussions with Dr. Manlesher, Vaughn decided to undergo reconstructive surgery necessary to repair the damage to his face. This surgery cost $5,000 and was covered by hospital insurance. Vaughn also decided to undergo further cosmetic surgery at the same time to alter the shape of his nose (a rhinoplasty). This “nose job” cost an additional $15,000 and because it was an elective, cosmetic procedure, it was not covered by hospital insurance. His mother tried to dissuade Vaughn from undergoing the rhinoplasty surgery. Ocean sought to convince Vaughn that the shape of his nose was part of his proud family heritage. In Vaughn’s view, his nose was too big and bulbous before the fight, was even worse now, and the good opportunity to reshape it. Vaughn insisted to his mother, “it is my face and my career”, and “if I’m going to be the next Kenny Chesney, I want a nose like his.” Dr. Manlesher decided to proceed with the surgery with Vaughn’s consent, despite Ocean’s threats to sue him if he did. Prior to obtaining Vaughn’s signature on the consent to surgery form, Dr. Manlesher fully explained to him the risks posed by the general anesthetic, the consequences of not undergoing surgery, and the risks associated with the surgery, such as infection and an unsatisfying nose shape. He explained all the risks, that is, but one: he did not explain the risk that the surgery could cause nasal blockage, because he considered the risk too insignificant. Nasal blockages occur following rhinoplasties in .2% of cases (that is, 1 in 500). When nasal blockage occurs, it can normally be corrected by a second rhinoplasty operation. Sure enough, following Vaughn’s surgery, he had difficulty breathing through his nose because one of his nasal passages was obstructed. The blockage resulted from the removal of tissue necessary to the creation of the new nose shape Vaughn had requested. Vaughn has consulted several experts in rhinoplasty, and they all agree that Dr. Manlesher’s performance of the surgery was impeccable. The post-operative breathing problems experienced by Vaughn are simply an inherent risk of rhinoplasties. Unfortunately, these breathing problems gave Vaughn’s voice a peculiar, nasally sound, kind of Dwight Yoakam like. Vaughn decided to undergo a second “nose job” to remove the nasal blockage. He did not approach Dr. Manlesher, having lost confidence in him. Instead, Dr. Rogen Courthouse performed the second rhinoplasty surgery in October 2021. It cost $10,000. Sadly, the surgery went badly. Dr. Courthouse has admitted negligence in the performance of the operation. Experts agree that if he had exercised due care, the nasal blockage would have been corrected. Dr. Courthouse’s negligent performance of the operation has resulted in permanent damage to the nasal passages that cannot be corrected, leaving Vaughn with his nasally voice and less vocal range and strength. Vaughn and Ocean tried to make the best of the situation by spending $20,000 of his earnings from his debut CD on touring and promotion but he has been unable to re-launch his career. His record deal fell through and by the end of 2021 venues stopped booking him altogether. As one booking agent explained, “everyone says he looks great, but his voice isn’t what it used to be.” To make matters worse, the end of Vaughn’s singing career coincided with Cierra Pacey’s rise to the top of the country charts. Cierra is now a multi-millionaire after signing a long-term record deal, lives in Nashville the United States, collaborated with Kelsea Ballerini on the song “half of my hometown”, featuring of all people…Kenny Chesney! She even got a shout out from Ballerini at the 2021 Academy of Country Music Awards when she won both Musical Event of the Year and Video of the Year, saying “Just like you, I moved out of Knoxville when I was 15. I had a dream of Nashville to so thanks for sharing the song with me Cierra”. Vaughn has returned to high school where he is receiving average grades. He has his sights set on a career as a talent scout. In January 2022, Ocean returned to her career as a travel agent, where she earns $40,000 annually, substantially less than the $100,000 annual salary she would have earned as Vaughn’s manager if the deal had been signed with MCA-Nashville. Vaughn and Ocean have launched a tort suit against Dr. Manlesher, Dr. Courthouse and Cierra Pacey. The two doctors and Cierra have retained you. Prepare a memo advising them on whether they could be held liable in the tort action brought by Vaughn and Ocean, and, if so, what damages they may be required to pay.
CASE 8 Merville Arena is a facility owned and operated by the municipality of Merville, British Columbia ("Merville"). The arena is the only covered rink in town and is used by all the local hockey leagues. The ice is surrounded by standard three-foot-high wooden boards. In addition, Plexiglas barriers extend six feet above the boards behind the net and around the corners at each end of the rink. There are no barriers above the boards in the middle section of the ice between the two blue lines. The municipality had considered including Plexiglas barriers to a height of three feet above the boards in the middle section of the ice -- this is standard practice in professional hockey arenas where fans are seated all around the ice. However, the cost of installing these extra Plexiglas barriers ($20,000) was considered too high when the arena was built in 2014. To reduce the risk of injury, the municipality decided not to construct any seating next to the middle sections of the ice. Spectators watched hockey games from behind the Plexiglas barriers at either end of the ice. In January 2020, Merville sponsored a hockey game at the Merville Arena featuring local celebrities to raise money in support of charity. To help meet the goal of raising $5,000, temporary wooden bleachers holding two hundred spectators were constructed along one side of the rink in the centre of the ice. Linus Millar, 25, his wife Jess Ottober, 23, and their 5-year-old daughter, Megan, were sitting in the bleachers. Linus had purchased their tickets for the event. The small print on the back of the ticket included the following words: Holder voluntarily assumes all risks and dangers incidental to the event and releases the municipality of Merville from all liability there from. Mid-way through the first period, Linus was returning to his seat after picking up popcorn for Megan. One of the hockey players, Shett Klort, attempted to intercept a hard cross ice pass, but instead he just got a piece of the puck with his stick, deflecting it up over the boards towards the bleacher seats. Linus was waving at Megan at the time, so he did not have his eyes on the game. The puck smashed into his nose and left eye. Linus’s nose was badly broken, and he suffered permanent damage to his eyesight in his left eye. His face is scarred and his nose misshapen because of the accident. Apparently, it is a common occurrence for pucks to fly over the side boards in the middle of the ice -- this happens on average once or twice a game. However, nobody had been injured by a flying puck in the two years since the Arena’s opening. After the accident in January 2020, Linus was unable to continue in his previous occupation as a model. He used to have a contract with Acme Optical to model eyewear, as well as contracts with a variety of clothing and sportswear companies. He was successful in his career, earning an average of $70,000 in the five years prior to the accident. All his contracts were cancelled because of the disfiguration to his face that resulted from being hit with the puck. He made strong efforts to find other work for several months but had no success. Linus’s lack of other work experience hindered his efforts to find a new job. In September 2020, he decided to spend $10,000 of his savings on plastic surgery to restore his previous appearance and thus, he hoped his earning power. However, the surgery was negligently performed by Dr. Cliff Avery, and Linus’s nose was even stranger looking than before the surgery. If the surgery had been performed with due care, there was a 75% chance that Linus’s face would have been restored to its previous appearance. Linus became increasingly upset about his facial appearance and his inability to support his family. For six months after the failed surgery, he would not leave home or make any efforts to find work. Finally, in January 2021, he took out his last $10,000 in savings and flew to Asia to rediscover a sense of purpose in life. Several months later, he contacted Jess and Megan and informed them that he had decided to become a Buddhist monk. Shortly thereafter, in late 2021, he wrote them from Nepal saying that he had forsaken material pursuits for a simple life of contemplation. Linus does not plan to return to Canada. He has no income and no intention of obtaining income in the future. Jess is worried about her and Megan’s precarious financial future. They are just scraping by on her earnings as an employee at a day care centre. Linus refuses to even consider bringing an action in negligence against Merville, Klort and Dr. Avery. He insists that returning to Canada to be a plaintiff in litigation would upset the delicate mental balance he has worked so hard to achieve. Jess is exploring the possibility of bringing an action against Merville, Klort and Dr. Avery for the pecuniary losses she and Megan have suffered because of Linus’s changed fortunes. She has approached you for advice on the chances of success against Merville, Klort and Dr. Avery and an estimate of the damages she and Megan could expect to recover from them. Jess and Megan are entitled to bring claims against Merville, Klort or Dr. Avery for their pecuniary losses as family members pursuant to s.61 of the Family Law Act if Linus would be able to succeed in an action in negligence against them. Thus, the issue that first must be addressed is whether Merville, Klort or Dr. Avery would be liable to Linus in negligence.
CASE 9 Medow Tchukka and her friend Naomi Round were all set to leave for a concert of their favourite band – the Sonic Death Monkeys. After picking up Naomi’s friend, Payta Larsons, at work they set out for the concert. When they arrived, they noticed that a huge crowd had begun to gather just inside of the doors of the Coliseum. As the group made their way through the crowd, Payta slipped in a large puddle of beer, and fell onto her back, landing on her left elbow. While her neck and left elbow felt quite sore, this was not enough to dissuade Payta from attending the first local concert of her favourite band. Medow, Naomi and Payta made their way to their 3rd row seats. As the Sonic Death Monkeys took the stage, the crowd began to get very excited. Those lucky enough to be on the main floor of the Coliseum started to ‘slam dance’. To get in on the action, Medow, Naomi and Payta moved closer to the stage, until they were right next to one of the massive speakers. The slam dancing crowd became wilder and wilder. After being slammed into several times, Payta realized that her neck was becoming very sore, and she decided to go back to her seat. Medow and Naomi remained near the speaker, enjoying the music and the crowd. Suddenly, they heard a loud cracking sound, and saw a spark fly from the speaker. They tried to move away from the speaker, but due to the crowd, they could not get very far. Another cracking sound from the speaker, and the speaker burst into flame, causing an abrupt halt to the concert. Employees of the Coliseum immediately leapt into action, to deal with the crowd and fire. The staff designated to look after the area where Medow and Naomi were stranded were unable to locate a fire extinguisher for several minutes, but once they had managed to do so, they were able to put out the fire within minutes. The extinguishers that were normally placed at each entrance to the Coliseum had been moved during some recent renovations, and not all had been replaced. According to section 2(3) of the Workplace Fire Hazard Act, “fire extinguishers must be located at all entrances to main auditorium areas”. Medow and Naomi were both badly injured because of the fire. The speakers had been purchased by the Coliseum from Big Sound Ltd. The manufacturer of the speakers was a company called Noise Inc. Noise Inc. had been advised of the propensity of this particular model of speaker to catch fire unexpectedly but had not contacted its distributors about this problem. Big Sound, however, had heard from another customer that had purchased identical speakers, about a very similar incident with sparking. Four months after the concert, Medow, Naomi and Payta sought legal advice from Paxton Ball, a personal injury lawyer. All three wanted to sue the Coliseum for the injuries they had suffered at the Sonic Death Monkeys concert. Medow and Naomi also wanted to sue Big Sound Ltd. and Noise Inc. Paxton, who had been in practice for 6 months, advised Medow and Naomi that they had no valid claim against either Big Sound or Noise Inc. They agreed to proceed only against the Coliseum. Some time later, Medow was surfing the Internet, and came across the Sonic Death Monkeys website. She clicked on a link entitled “Disaster strikes at Edmonton concert” and saw that a number of other individuals had also suffered injuries at the concert. One particularly interesting item caught her eye – a news story saying that Noise Inc. had recently declared bankruptcy after being held liable to over 50 concertgoers who had been injured in the fire caused by its faulty speakers. Medow, Naomi and Payta have now approached you for advice. (a) Discuss in full any tort actions that Payta has against the Coliseum for the injuries she suffered at the concert, including any defences the Coliseum could raise against Payta. (b) Discuss in full any tort actions that Medow and Naomi have against Coliseum, Big Sound Ltd. and/ or Noise Inc. Ensure that you also discuss any defences that Coliseum, Big Sound or Noise Inc. could raise with respect to the actions you discuss. (c) Consider whether Medow and Naomi have any claim against Paxton Ball and discuss all aspects of such a claim. Evaluate the chances of success of each cause of action you consider.
CASE 10 Funland is a new amusement park located in the north end of Nanaimo, British Columbia. It is owned and operated by Blast Inc. Competition for consumers' entertainment dollars is fierce, so each year Blast Inc. tries to lure increasing numbers of customers with amazing new rides. In March 2022, it added a new roller coaster, called The Danger Zone™. As part of the ride, the roller coaster would go through three complete loops, such that passengers would be turned upside down and then upright again on three occasions during the ride...you would literally “Fly into the Danger Zone”. Each roller coaster "train" on The Danger Zone™ consisted of two open cars of 20 seats each. Before each ride began, a metal restraint bar was folded down by Funland staff onto each passenger's lap in each seat and latched into place. The new roller coaster had been in operation for two months when one day it came to a complete and unexpected stop in the middle of a ride, leaving one "train" full of passengers suspended upside down forty feet above the ground. Try as they might, the two Funland employees operating the ride (Goose and Maverick) could not re-start it (they had skipped the training session on this topic). Meanwhile, the passengers were panicking. Despite announcements over the loudspeakers telling them to stay still and stay calm, two of the passengers, Rhianna Silwon and Etta McMorland, released the metal bars across their laps and tried to get onto the track above them to climb down. Meanwhile back on the ground, Branden Harvey, a youngster of eleven, noticed that the ride operators' attention was distracted by events above and climbed the fence surrounding the roller coaster ride. He had decided to try to pick up the change falling out of the sky from the pockets of the stranded passengers. As he was looking up to check for more loot, he was hit in the eye by a falling two-dollar coin, a “Toonie”. As a result of the injury to his eye, he lost the sight in it. Etta managed to make it to the ground, although he suffered a sprained wrist in doing so. Two visitors to the park, Kordan Race and Ishbak Sareene, offered to drive him to the nearest hospital. Kordan commandeered an unattended Funland car that a Funland employee had left nearby with the keys in the ignition when he was called to the scene. Spurred on by Ishbak yelling at Kordan to drive faster, the three set off for the hospital. Unfortunately, the car was travelling so fast that Kordan lost control and drove into a telephone pole. Etta's injured arm was broken, and he suffered whiplash in this accident as well. Rhianna made it to the ground unharmed and was so elated, he went off to one of the Funland pubs to have a celebratory drink or two. The drink or two turned into five or six Jagerbombs or perhaps even more (it was hard to count, especially when other patrons in the bar heard his story and began buying him drinks). Two hours later, Rhianna decided to try to help his fellow passengers on the roller coaster. Nothing had changed in his absence. Undaunted, Rhianna weaved to the foot of the roller coaster track, staggering slightly, and began to climb it, yelling "Hang on". The Funland employees watched, open mouthed. Rhianna reached the top of the track, began a little victory jig, slipped, and fell to the ground. He was left a quadriplegic. Advise Etta, Rhianna and Branden as to the likelihood of recovering damages in negligence actions against (i) Blast Inc., the owner of Funland, (ii) Kordan and /or Ishbak. Specify what damages are likely to be recoverable by whom from each defendant in the event of liability. You should also indicate any missing factual information you believe you must have to advise your clients.
Good Luck and remember; please ask questions and work cooperatively with others. Lawyers do not always work in isolation. Research for information online and above all have fun with this project! Hey, there’s another option...If you wish to respond to just three of your clients (instead of five) you need to make a one minute TV commercial for your Law Firm. Watch some examples:
https://www.youtube.com/watch?v=cY8-6anjNJg
http://www.youtube.com/watch?v=CyaXZjFF0R8
https://youtu.be/bCxZT_VdOaI?list=PL0t4XXN2HJISuGNEGyR8dB7LpDnI46eNT
https://youtu.be/htwRWNs_73E?list=PL0t4XXN2HJISuGNEGyR8dB7LpDnI46eNT
https://www.youtube.com/watch?v=jaqkzFuOXsY
https://www.youtube.com/watch?
v=oN4PSu8qzNc&list=PLw2w9PIWLB8bQBW8rZiyDQ_dQkQpAdlb0&index=9