14-16, McLachlin C.J. © 2020 Miller Thomson LLP. POPULAR ARTICLES ON: Litigation, Mediation & Arbitration from Canada. Miller Thomson LLP uses your contact information to send you information electronically on legal topics, seminars, and firm events that may be of interest to you. foreseeability and proximity. In an important decision, the Supreme Court of Canada (“SCC”) has revisited the question of foreseeability in establishing a duty of care. This test simply means that the harm that occurs as result of an action, was a reasonably foreseeable consequence of the defendant’s action/conduct. foreseeability of an adverse consequence of one's actions, Harm may be foreseeable defendant which created the risk, he may be barred on the theory that he volun-tarily assumed the risk. The first question is whether the harm that occurred was the reasonably foreseeable consequence of the defendant’s act. Such a "person" is really an ideal, focusing on how a typical person, with ordinary prudence, would act in certain circumstances. In London District Catholic School Board v. Michail, the Ontario Superior Court of Justice considered a motion pursuant to s.137.1 of the Courts of Justice Act (commonly referred to as the "anti-SLAAP provisions") ... One of the tools parties use to shorten the length of civil actions is to resolve their disputes by way of summary judgment. By using our website you agree to our use of cookies as set out in our Privacy Policy. The foreseeability test basically asks whether a person of ordinary intelligence should have reasonably foreseen the general consequences that could result because of his or her conduct. This usage confuses the concepts of foreseeability, probability and reasonableness of precautions. Risk needs to be assessed on a case-by-case We are hopeful that this decision will operate to extinguish a duty of care alleged to be owed by insured professionals and others. The decision in Rankin’s, however, is a clear signal from the SCC that a car is not to be treated in the same manner as a ‘loaded gun’ and that it is not an inherently dangerous object. The first question is whether the harm that occurred was the reasonably foreseeable consequence of the defendant’s act. ("SCC") has revisited the Standard of Care The Standard of care that the defendant must exercise towards the plaintiff is that of a reasonable, ordinary and prudent person in the same or similar circumstances. . 194 Under The Courts Of Justice Act, Tort Action Arising From Injury At Heavy Metal Concert, Assault In Parking Garage: Inadequate Security Measures Did Not Cause Plaintiff's Loss, Beyond Any Doubt: Administrative Court Decisions Setting The Bar For The "Standard Of Proof" For Abuse Of Dominance, EDÖB: Stellungnahme Zu Datentransfers In Die USA Und Weitere Staaten Ohne Angemessenes Datenschutzniveau, Neues Schweizer Datenschutzrecht: Wichtigste Regelungen Der DSG-Revision Im Überblick, BGH: Facebook Muss Erben Zugriff Auf Account Einer Verstorbenen Gewähren, © Mondaq® Ltd 1994 - 2020. The test continues to involve an analysis of both reasonable foreseeability and proximity. Mondaq uses cookies on this website. recognized. licence, they went on an ill-fated joy-ride resulting in a crash Specialist advice should be sought general is not so broad that it would include reasonably ruled that the garage owner owed no duty of care to the injured The reasonable foreseeability test is the first step to determine whether liability exists for the type of injury suffered. person in the position of the defendant ought to have reasonably We are of the view that the SCC has placed an important limit on 537, Odhavji Estate v. Rankin’s Garage – A Fresh Application of the Moral Glue of Tort (Reasonable Foreseeability Revisited) I. The rival foreseeability test, advocated in separate judgments by McHugh J and Brennan J, is equally problematic. under an obligation to be mindful of the plaintiff's legitimate 35): . In an important decision, the Supreme Court of Canada there must be some circumstance or evidence to suggest that a a) "Reasonable Foreseeability": He suggests that McAlpine approves the use of the foreseeability test articulated by the Ontario board in Torres v. Royalty Kitchenware Ltd. and Guercio, 3 … Reasonable force must pass an objective test. > The Curious Case of Reasonable Foreseeability To consider an action negligent and therefore find a party responsible for injury, the act would have to be considered reasonably foreseeable. Lower The Test for Negligence. © Miller Thomson LLP 2020. All Rights Reserved. Lloyd's Brief: Canadian Legal Perspectives, Who is My Neighbour? The reasonable foreseeability requirement plays an important role in limiting liability to cases where the defendant should have contemplated the type of harm suffered by the plaintiff. Foreseeability and Proximate Cause relationship of such a nature that the defendant may be said to be For as long as he exercises the care of an ordinary lay person in the particular situation he is not negligent. test continues to involve an analysis of both reasonable Once liability is established, then the “thin-skull” doctrine can be applied in cases where, had it not been for the plaintiff’s “thin-skull” condition, the damages would not have been so great. The foreseeability test is used to determine whether the person causing the injury should have reasonably foreseen the consequences of the actions leading to the loss or injury. Two youths, intoxicated by alcohol and marijuana, were prowling in an effort to steal from unlocked cars, and they found the keys in the ashtray. This publication is provided as an information service and may include items reported from other sources. be owed by insured professionals and others. manner as a 'loaded gun' and that it is not an inherently The reasonable foreseeability test was discussed in Wyong Shire Council v Shirt : Reasonable foreseeability is given a broad scope. the defendant's act. indicates that the responsibility of companies and professionals in courts found the garage owner contributorily negligent. We are of the view that the SCC has placed an important limit on the breadth of foreseeability in establishing a duty of care. Underwriters for professionals should still be wary of the potential liability that may arise in any line of business but they can take some assurance that the SCC is not willing to broaden the scope of liability to circumstances where the facts do not clearly indicate a link of reasonable foreseeability. The first question is whether the Lower courts found the garage owner contributorily negligent. The test continues to involve an analysis of both reasonable foreseeability and proximity. We are hopeful that It is the 4th test that the Plaintiff failed on and in explaining why the Supreme Court of Canada added some clarity to this area of law. Underwriters for professionals should still be wary of the potential liability that may arise in any line of business but they steal from unlocked cars, and they found the keys in the ashtray. The SCC has not changed the legal test for a duty of care. intoxicated by alcohol and marijuana, were prowling in an effort to Any other form of reproduction or distribution requires the prior written consent of Miller Thomson LLP which may be requested by contacting newsletters@millerthomson.com. This information is not meant as legal opinion or advice. 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