The Common Law Will Direct the Actions of Individuals; However, the Law Faces Problems

Omissions

JOSHUA KRANE

The common law will direct the actions of individuals; however, the law faces problems in obliging people to act. The importance that the common law places on individual liberty speaks to the reluctance of the common law to interfere with the affairs of others. In common law, the court assesses omissions in terms of duty of care – does the defendant have a duty to act? In civil law, everyone has a duty to act. Civil Law assesses omissions using the concept of fault instead – how does the omission of the reasonable person compare to that of the defendant?

Eaton v Moore [1951] SCC on appeal from QCA
Facts:

Moore slips on oil after it had spilled. The clerk called maintenance immediately but they were too late. The clerk’s duties did no include cleanup.

Issue: Should the clerk have acted to cleanup/demarcate the spill immediately?
Held:No.
Reasoning:
Given the general duty not to harm others, would the reasonable person have acted?

The court balanced the duty of the clerk as a salesman to his merchandise and the duty of the clerk to protect the customers. The justices refer to duty to demonstrate a weighing of responsibilities. The court determines that the accident was not foreseeable nor did it constitute a concealed/immanent danger.

Would the reasonable employee have addressed the spill right away? The reasonable person is expect to take ordinary and not great precautions. The court is essentially assessing the fault of the employee using the RP test.

Even so, the employee did take reasonable precautions, by calling the maintenance staff to clean the spill immediately.

In addressing the vicarious liability of the employer, the court found that benefits from the risk-creation of the enterprise was not sufficient to attribute liability.

Rationale:

In civil law, where the employee fails to act in a situation causing injury, but does so as to correspond to the reasonable person standard, then the employee has not committed a fault.

Critique:

Estey holds that the slip constituted a trap and that the employee did not take reasonable steps to prevent customers from injury. In the course of employment need not be based on simple instructions/list of duties, but it should have been known to the reasonable employee that customer safety is a priority.

How do we distinguish between an act and an omission? The category of omission has been criticized for drawing an artificial distinction. For example, was the fault of the manufacturer in Donoghue and act (putting the snails in the bottle) or an omission (failing to check the bottles)?

The basic principle of duty of care in common law regarding omissions assumes that no duty exists unless:

A person undertakes to perform a service for someone and begins to act (not necessarily contractual). For example, the doctor in Barnett, by offering medical advice to the deceased assumed a duty, even if the doctor failed to treat the deceased.
A person has a pre-existing relationshipenumerated by precedent: employer-employee, parent-child, captain-passenger, referee-player, jailor-prisoner, hotelier-patron
The defendant has control over the third party, which caused the damage (often these relationships parallel those in 2). For example, a car-owner has control over a drunk driver who causes injury to another.
The defendant has control over land/thing that causes harm.

In assessing the duty of care regarding omissions, the court considers the following questions:

Did the relationship between the plaintiff and defendant give rise to a duty of care? What factors in that relationship evidence that duty? We look to match precedent cases and that fall within the 4 categories.

What is the ambit or the limit of that duty? What is the standard of care that the defendant owes? We are not talking about conduct, but about whether a person owes a duty because of the relationship with the plaintiff. The standard of care does not consider the reasonable behaviour of the defendant, but it recognizes what the duty involves.

Did the defendant discharge his/her duty? The court will look at the behaviour of the defendant to assess whether it corresponded to the standard of care – and whether the behaviour was reasonable. If not, then we proceed to assess fault, since fault is the breach of the standard of care.

Only after we have established that there was a duty and that it was not discharged, can we proceed to establish causation.

Jordan House stands for the general application for the determination of a duty to act. When do we have a duty to act?

Crocker v Sundance Northwest Resorts [1988] SCC
Facts:

Crocker paralyses himself during a tubing competition. The hotelier had noticed him drinking before the race and during the heats. He asked if they were able to race, and Crocker stated that he was. Normally, sporting accidents lie where they fall, but:

Issue: See above test.
Held: Sundance owed a duty to Crocker and breached its obligation toward him.
Reasoning:

With the shift back from individualism to collectivism, courts are willing to expand duty of care.

Conditions for establishing the special relationship (to give rise to duty):

The court reference Jordan House to establish the relationship between hotelier and patron is close enough such that in the patron’s intoxicated conditions, the hotelier should have taken reasonable measure to prevent the patron from injuring himself. In this case, it was obvious that the plaintiff was drunk (and Sundance provided the liquor).

Sundance creates the conditions (risk) and benefited from them to promote its resort and therefore, it should incur the corresponding legal responsibility as well. The activity was under the full control of the defendant, the defendant benefits from the risk. The competition was also inherently dangerous

Did Sundance sufficiently discharge its duty by meeting the standard of care:

The court found warnings to be insufficient of its discharging of its responsibility toward Crocker.

Sundance could have disqualified Crocker, could have refused to give him a new tube when his escaped down the hill because of his intoxication, or they could have really made clear the danger of participating intoxicated. None of these precautions was burdensome, yet Sundance took none of them, and therefore failed to me its standard of care. These acts are not overly burdensome (seems like a cost-benefit analysis of precautions vs. probability/gravity of harm).

The breach of the standard led the court to analyse the other conditions for liability. It found that Sundance did not take reasonable steps to prevent Crocker from participating in the competition while he was intoxicated.

Rationale:

In cases of omission where the defendant and plaintiff are in a special relationship, the defendant owes a duty on the defendant not to place the plaintiff at an unreasonable risk of harm.

Murphy v Little Memphis Cabaret [1996] OCJ
Facts:

Murphy and friends arrive at the bar, gets drunk, and encounter another group at the bar (who were not drunk). A conflict erupted and both groups were thrown out of the bar at the same time (one out front and one out back). Murphy was injured by the group.

Issue: Did the tavern owe a duty to Murphy and did it fail to meet the standard of care (did it discharge its duty)?
Held: No.
Reasoning:
To create the duty of care based on a special relationship:

The bar had a duty not to place its patron in an unreasonable risk of harm – based on its patron-retailer relationship. Foreseeability of injury is insufficient.

Given the duty of care, what is the extent of that duty?:

The danger had originated within the tavern and therefore the duty extends to all of the patrons within the bar, and it is not confined to intoxicated persons – but the patron must be awaited by imminent danger.

Did the tavern discharge of its duty?

To discharge its duty, the bar could have called their customers a taxi, called the police, made other arrangements to ensure that the conflict would not continue on the premises, etc. As Memphis took no steps to ensure the safety of its customers, the defendant has not demonstrated that it used reasonable care to fulfill its duty to the plaintiff.

Rationale:

In cases of omission where the defendant and plaintiff are in a special relationship, the defendant owes a duty on the defendant not to place the plaintiff at an unreasonable risk of harm.
The principle established in Jordan House is confined to cases of extreme intoxication, but applies to all situations in which an occupier exposes a visitor to imminent danger to which he has somehow contributed.

It seems, however, that these conditions/criteria are linked more to fault and causation. Unlike the civil law, duty of care is the entry point into assessment of liability in common law. For policy reasons, the court will determine whether some relationships are more/less worthy of legal protection, based on policy and philosophical reasons.

Duty to Rescue

If someone undertakes a rescue, he is under an obligation to fulfill that obligation. The reason being that others would assume that help has arrived and therefore not attempt to provide assistance. The law will protect people from civil liability if they undertake a rescue. The rescuer would have to be the author of gross fault to be held liability. The requirements to hold the rescuer at fault are very heavy (a.1471).

In common law, a potential rescuer does not need act, unless that person is in a special relationship as enumerated for omission.

In civil law, a.2 of the Charter states that there is a general duty to rescue, unless there is danger to the rescuer’s well-being, to that of another, victim’s life is not in peril, or another valid reason. How can we tell if the victim’s life is not in peril? No case law on duty to rescue to assess “validity” of reason. As civil law has no problem with omissions, the civil law could simply apply a.1457, although it does not have the exceptions and would apply the reasonable personal standard.

We assume in ECO that liability rules can regulate human behaviour, but this claim is hard to prove. It seems more likely that our moral obligation to rescue will guide our behaviour and that the discussion regarding duty to rescue involves issues of assessing liability.

Additional Notes:

Legal duties arise from: a choice to act and choice to omit.

Is the duty to act the same as the duty to rescue? No. The duty to rescue is a subcategory of the duty to act. Nothing forces a person to take a positive action unless that person falls within the categories. In cases of rescue, the action is already in progress and the rescue involves saving someone.

Duty of Care

Common law will use the duty of care to limit liability[1]. In common law, the loss will lie where it falls – and the loss will be transferred only if there is a special relationship between the parties giving rise to an obligation to act with care. Duty of care is a tool that we use to define this legal relationship. Based on policy considerations, the court will assess whether the relationship is worthy of judicial assessment (is it in the interest of society that the court can intervene?).

Courts have a problem defining what is a close enough relationship to warrant transferring the loss.

In civil law, policy-based justifications are developed by the legislature (to which the courts will defer), whereas in common law, the courts have a tradition of taking decisions – and the courts are the primary developer of the law.

Can we distinguish between these two conceptions of duty?

a.1457 – duty not to cause harm to “another” by one’s fault
Donoghue – duty not to cause harm to your “neighbour” (so closely and directly affected) by one’s fault

Different societies have different conceptions of “neighbour” and if the conception of neighbour in a society. By looking at proximity through the lens of reasonability, we may restrict or expand our conception of who is my neighbour. However, without the case law that interprets the concept of duty, we would have difficulty defining the parameters of what harm is foreseeable and what harm is not.

Donoghue seems to reflect an expanding social responsibility in British courts to acknowledge an intervention in individual rights by attributing new duties of care that did not previously exist.

Donoghue v Stevenson revisited [1932] House of Lords
The consumer never purchased the product from the manufacturer. However, since the law had previously never recognized a duty, Lord Atkin established principles that served to recognize new duties.

Neighbour Principle: per Lord Atkin’s a duty of care extends to "persons who are so closely and directly affected by my actions that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question"

This principle serves as the first branch of Anns test and considers: foreseeability of injury - "in contemplation" and the proximity of relationship - "so closely and directly affected". Proximity and foreseeability are linked where one is sufficient to show another.

If there was contemplation of harm or foreseeability of harm, then the proximity of the relationship is shown (an vice versa). The general class of plaintiff to which the plaintiff belongs is sufficient to establish foreseeability, and thus proximity. This is an objective test. We use duty of care to shape how we endeavour to attribute liability in common law societies.
The court will examine the case law first to establish a duty of care. This tool is necessary only if a new relationship is one that warrants the protection of the law.
By contrast, under a.1457, there is no allusion to concepts of foreseeability and proximity, meaning that there is no implicit limitation on duty. In civil law, it might have been possible to limit general duty in civil law, by limiting the interpretation of the word “another”. However, we know that courts have extended the duty to all.
Home Office v Dorset Yacht Co. [1970] House of Lords
Facts:

Three officers were supervising the work of a number of juvenile detainees on Brownsea Island. The officers went to sleep and the juveniles were allowed to roam free while on the Island. The juveniles escaped, stole a yacht, crashed it into another yacht, and then boarded the latter yacht, causing it further damage.

Issue: Does this new relationship warrant the establishment of a duty?
Held: Yes.
Reasoning:

The defendant is the state and there are considerations specific to the defendant and the victim. The act that caused of the damage was linked through the inmates and borstral officers, but the defendant is the state. An omission to prevent the damage also created a problem for the court.

If no precedent exists, the judge has a choice whether or not to apply the neighbour principle in Donoghue to the fact situation. The policy nature of this consideration emerges in this case. Beyond the idea of proximity, we can account other considerations that are not strictly legal.

Lord Reid confirms the basic duty of care principle established in Donoghue and he applies the conditions of foreseeability and proximity. Reid explains that duty can be established "unless there is some justification or valid explanation for its exclusion." No ground in public policy to give immunity to the state. This becomes the policy consideration branch of the Anns Test.

Although Lord Diplock examines the existence of foreseeability, he gives more emphasis of public policy: what exactly constitutes a close relationship.

HO is only liable if the harm caused by the youths occurred (i) in the course of the escape, at (ii) roughly the same time as the escape and (iii) in the vicinity of the escape (attempt to avoid opening floodgates of litigation).

Can we limit the duty of care?

Had escapees had robbed a bank three weeks later, HO would not be liable - the duty does not extend to the public at large because the harm would not be foreseeable based on the policy considerations outlined in the second component of his judgment. The public is far too large of a class to protect (although you could reasonably foresee damage to others) and Diplock is concerned that liability will extend too far.

The Yacht owners are submitted to a risk that is greater than the risk to which the public at large is submitted. The public shares a general risk of being a victim of crime. To give rise to a duty by a custodian, there must be some relationship between victim different than that of public at large.

In this case (1) the officers failed to take precautions and were in breach of their responsibility (2) it is reasonably foreseeable that the trainees would steal the boats moored on the coast.

Rationale:

Non-legal policy considerations help to limit liability to the defendant. Although this conception of policy seems arbitrary, the defendant could be held liable to a great extent.

WHERE THE COURTS HAVE NOT PREVIOUSLY RECOGNIZED A DUTY: