LAW 3010 Liability for harm caused
Strict liability
Tort law normally assigns liability only if the defendant caused injury through fault. Fault
involves either intention to harm or negligence. Strict liability does exist in Canadian law but
applies to narrow circumstances. A person who collects dangerous things on his land from which
they subsequently escape is strictly liable for harm caused to others when they escape from the
land. See Rylands v. Fletcher (1868) L.R. 3 H.L. 330, where water escaped from a large storage
tank and flooded mines on his neighbour’s land. The defendant did not cause the escape of the
water through his fault but was liable for damages because he was strictly liable for the damage
caused by the escape of the dangerous thing. See also Heintzman and Co. Ltd. v. Hashman
Construction Ltd. (1972) 32 D.L.R. (3d) 622. See also Yates 143. Calgary (City) v. Yellow
Submarine Deli Inc. (1994) 158 A.R. 239; Western Wear Ltd v. Yui Holdings Ltd. (1983) 5
D.L.R. (4th) 681 (Alta QB)
In Canada, strict liability applies only in cases of escape of dangerous things from land. It does
not apply to escape of dangerous goods in transit. (Compare some American jurisdictions). What
sort of dangerous things might give rise to strict liability to persons injured by their escape from
land? Explosives? Poison stored on the land? Airborne insecticide blown from a farmer’s field
into a neighbouring housing estate? Pig manure seeping from feedlots into drinking water
systems? Wild animals from a safari park? Golf balls from a golf course? A dangerous infectious
disease virus from a research laboratory? Clearly, all these things can be dangerous to others in
different circumstances. Canadian law restricts the scope of strict liability but does take into
account the degree of risk that the defendant ought to foresee when determining whether the
defendant is at fault.
While strict liability has limited application in Canada, it has some appeal. In a society built on
division of labour, it may not be unreasonable to assume that persons engaged in dangerous
activities are or ought to be in the best position to know the dangers associated with such
activities. Accordingly, it may seem reasonable for such persons and the direct beneficiaries of
such activities to insure against harm caused by such activities. If the costs of such activities are
externalized to others, there is a distortion in the market.
On the opposite end of the compensation spectrum is one of no-fault insurance, where society as
a whole insures against the risks of activities and individuals are compensated whether or not
they are anyone else was at fault. Such schemes exist in all Canadian provinces for workers’
compensation and in some provinces with respect to motor vehicle accidents.
However, a large range of activities remain under tort law, in particular the law of negligence.
Negligence and the duty of care
Action in negligence will succeed only if the defendant:
(a) owed the plaintiff a duty of care;
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(b) was in breach of that duty of care; and
(c) caused injury to the plaintiff.
Donoghue v. Stevenson set in motion the development of the principle that a person has a duty
of care not to act or fail to act in a manner that causes reasonably foreseeable harm to another.
Except for such exceptions, the “reasonable foresight” test is the test to establish whether a
person owes a duty of care for the safety of another. So if I drive through a playground zone, it is
reasonably foreseeable that I may injure a child if I exceed the speed limit by 10 km. per hour. I
have a duty of care to children crossing the road not to exceed the speed limit and to drive with
due care and caution. While I may be unaware of this duty, I am bound by the duty owed by the
reasonably intelligent and aware driver.
In City of Kamloops v. Nielsen [1984] 2 S.C.R. 2 (at p.10, per Wilson J.)
The court must ask “…..is there a sufficiently close relationship between the parties (the
defendant and the person injured) so that in the reasonable contemplation of the defendant,
carelessness on its part might cause damage to that person? If so, are there any considerations
which ought to negative or limit (a) the scope of the duty and (b) the class of persons to whom it
is owed and (c) the damages to which a breach may give rise.”
The following are examples of such limiting considerations. In Canada, a person has typically no
legal duty to rescue another from harm or danger, unless he has placed that person in such danger
or has a special relationship with the other, such as a pool lifeguard, a child minder, or one with a
contractual or fiduciary duty to act for the safety of the person. So, one has no legal duty to be a
Good Samaritan to a stranger that one sees drowning in six inches of water.
Also if a person opens a grocery store one block away from an existing grocery store, she will
not be liable for the loss of business and resulting harm caused to the owner of the first store.
Public policy does not view such harm as compensable even if caused intentionally or
negligently by the owner of the new store. A motorist may cause severe psychological harm to a
third party who witnesses his negligent killing of a child. While it might be reasonably
foreseeable that a bystander might suffer such harm, tort law restricts the scope of persons
suffering psychological harm by witnessing harm caused to others. The parent of such a child
would likely be compensated for the harm caused witnessing the death of her or his child.
Such matters are influenced by public policy considerations rather than reasonable foresight.
Standard of Care
While there is normally a duty to take reasonable care to avoid reasonably foreseeable harm to
others, what does this mean in practice? The standard has been described as that of the ordinary
reasonable person, the person on the Yonge Street subway but this is not entirely true. The brain
surgeon is held to the standard of the reasonably competent brain surgeon, the life guard to that
of the reasonably competent life guard even though it is her first day on the job. That is the
reasonable person is assumed to have the expertise of someone in a particular trade, calling,
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position etc. A learner driver is held to the same standard of care as the average experienced
driver.
Courts usually decide the standard of care as follows:
(a) Was there a danger to the plaintiff (or someone in the plaintiff’s position) that the
defendant ought to have foreseen when engaging in his conduct? If not, there is no
breach of duty on the part of the defendant.
(b) If, yes, was there action that the defendant could have taken to avoid materialization
of the danger that injured the plaintiff? If not there is no breach of duty by the plaintiff.
(c) If yes to (b), in light of the extent of the danger to the plaintiff, was the action open to
the defendant to avoid the harm to the plaintiff too onerous to undertake? If such action
is held by the court to be not too onerous in light of the danger, the court will hold that
the defendant did not exercise the appropriate standard of care.
In the analysis under (c) above, courts assess danger or risk on the basis of: (i) the likelihood of
its materializing: and (ii) the seriousness of the consequences to the other person(s) if it does
materialize. If there is a one in a million chance of someone falling down an unguarded hole in
the road, the risk may be assessed as relatively high if the consequences of falling down the hole
are virtually certain death. If minor injury to another is the worst foreseeable consequence of a
person’s action, the risk will be assessed as high if the probability of such a minor injury is great.
Having assessed the seriousness of the consequences and the probability of the risk
materializing, the court must then weigh this against the burden imposed on the defendant to
avoid the risk. If that burden is held to be greater than the risk to the plaintiff, the courts will find
no breach of duty. Accordingly, the cricket club was not liable for injuries sustained by a passerby when a cricket ball hit by a batsman hit her while she was walking on the street adjacent to
the cricket ground. While the consequences of the risk’s materializing were serious (a head
injury), the probability of the occurrence was very low because the ball traveled an
unprecedented distance. Against that, the cost of a very high perimeter fence was viewed as an
excessive burden on the amateur cricket club. Also too onerous was to stop the activity of cricket
altogether. See Boulton v. Stone.
Note many statutory duties laid down such as road traffic regulations, occupiers liability etc. but
they usually require negligence for a successful civil action for breach of statutory duty.
Children
There is a higher duties to children who are in the care of others – such as an educational
institution. See the doctrine in loco parentis which requires that the care-giver meet the standard
of care of a prudent parent. The care-giver in loco parentis is required to have the prudence and
care of the typical loving parent and the expertise of his or her profession – e.g. a gym instructor,
a day care worker, even a college or university, etc.
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The duty applied to children is that of the reasonable child of that age. A young child of 6 or 7
playing with matches may not have a duty of care to others with respect to negligent use. On the
other hand a 15 year old may do.
Parents are not vicariously liable for acts of their children but see some provincial statutes such
as Manitoba’s The Parental Responsibility Act.
See p. 137 for absence of vicarious liability of parents at common law for their children’s
actions. Tendency to avoid strict liability.
Res ipsa loquitur
Evidentiary matter of establishing a prima facie case of negligence and a duty on the part of the
defendant to rebut the presumption. Burden of proof still on the plaintiff.
Occupiers’ Liability Act
See protection of trespassers against willful or reckless harm.
See Houle v. City of Calgary (1985) 20 D.L.R. (4th) 15.
See Yates p. 139.
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