Limits of the Neighbour Principle The neighbour principle leaves unanswered the question as to whether a duty to rescue or come to the assistance of those in peril is imposed on members of the general public. For example, if 10 able-bodied men stood idly by as a 20 year old bully assaults and kills an 80 year old woman, would negligence law impose a duty of care on the 10 able-bodied men? The Duty to Rescue At common law, there is no duty to save a drowning person, or to warn a blind person of a dangerous ditch. While it may be admirable to do noble deeds, there is no duty to feed the starving, to bind up the wounds of those bleeding to death or to prevent a child from falling to his death. No one is obliged to warn his neighbour of leaking gasoline or leaking gas even when there is a real likelihood of an inferno. Law and Morality The Good Samaritan dilemma exposes the difficult relationship between law and morality. While it is clearly morally reprehensible to refuse help to those legitimately in need of it, it is somewhat difficult, especially, in an individualistic and self-reliant society to determine whether moral regression rises to the level of legal responsibility. The Samaritan and Tort Law The crux of the matter is whether an uninterested bystander, who did not contribute to the danger nor voluntarily assumed responsibility for an endangered person, should be required by tort law to act or render help in order to assist or save the life or limbs of an imperiled person? The Duty to Rescue Generally speaking, in the absence of a special relationship, tort law imposes no duty to render assistance to those in peril, even where assistance can be rendered easily and at no inconvenience to the rescuer. “A person on a dock can with legal impunity ignore the call for help of a drowning person, even refusing to throw a life ring. The law leaves the remedy to the person’s conscience.” Horsley v. MacLaren. Justifications for Current Position Various arguments can be made to support law’s indifference to the mythical moral monster. These include lack of “causation”, “individualism”, divide between righteousness and legal obligation, exposure to danger, etc. In the final analysis, the juridification of good Samaritanism is a political one and that explains why the courts have expressed remarkable reluctance to impose a duty of care in those circumstances. There are, however, some exceptions. These include, Special Duties of Care Relationships of economic benefit. Liability for the intoxicated Relationships of Control Relationships of passenger/carrier Creators of dangerous products Police and the Duty to prevent crime Statutory duties Quebec Charter of Rights “Every human being whose life is in peril has a right to assistance. “Every person must come to the aid of anyone whose life is in peril, either personally or calling for aid, by giving him the necessary and immediate physical assistance, unless it involves danger to himself or a third person, or he has another valid reason.” R/ships of Economic Benefit In cases where individuals stand to benefit economically from a relationship with another, courts are very likely to impose an affirmative duty of care on the individuals to assist or prevent that other person from being injured. This duty only exists in the peculiar context of that relationship. It is on the basis of this principle that tavern keepers and bar owners have been held negligent for injuries arising from the intoxication of their patrons. See Stewart v. Pettie. s. 39 Liquor License Act 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… s. 39, Liquor License Act 1. If the person to or for whom the liquor is sold commits suicide or meets death by accident while so intoxicated, an action under Part V of the Family Law Act [a wrongful death action] lies against the person who sold the liquor 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 from the person… Bar Patrons and rd 3 Party Injuries The logic of holding bar or tavern keepers liable for the injury done to or suffered by intoxicated bar patrons also extends to protect 3rd parties. Thus, 3rd parties endangered by the intoxication of a bar patron are legitimate foreseeable ptfs. In Crocker v. Sundance, the SC reasoned that where a person stood to gain commercially from the relationship with the intoxicated person, a duty of care is owed to the intoxicated persons and others who stand at risk from that person. Ice Cream Vendors and Children Ice cream vendors who deliberately draw children to the streets to purchase ice cream also owe the children and others a duty of care to ensure that reasonable steps are taken to protect them. The jurisprudence here has been grounded on two planks, namely, economic risk and the creation of risk. Liability for the intoxicated While the liability of owners of bars and taverns for the injuries of the intoxicated is grounded on economic benefits, a more defensible basis for the liability of private persons who serve intoxicants to their guests is that the host created the danger and must accordingly exercise due care to prevent injury. The private host who serves alcohol may no longer be considered as a bystander. However, myriad reasons falling within the 2nd limb of the Anns test militate against social host liability. Childs v. Desormeaux Ptf was a passenger in a vehicle hit by the dft. The dft had consumed enormous quantities of alcohol at the house of the Zimmermans and the latter has also allowed the dft to drive home drunk. The question was whether the Zimmermans owed ptf a duty of care. In the reasoning of the court, although the first leg of the Anns test was met, there were policy reasons that made it unwelcome to create a new duty of care in respect of social hosts. Childs v. Desormeaux Nature of home entertaining compounds the social host’s difficulty in determining whether a guest is obviously intoxicated before serving the next drink. Commercial hosts have greater control over the customer than a social host. Is the social host obligated to use physical force to restrain an intoxicated guest from drinking and then from driving? Kelly v. Gwinnell Relationships of Control There is a legal obligation on parents, and those in parenting roles such as day care parents, to assist and protect their children. The legal obligation is premised both in tort and in fiduciary obligation. See Arnold v. Teno. Note however that the presence of another responsible adult does not negate the parental duty of care. See Galaske v. O’Donnell. Relationships of Control Apart from parent-child relationships, the teacher and pupil relationship obliges the teacher to assist and protect pupils under her care and supervision. Although most students are young persons, age is not critical to duty. The overriding factor is the student-teacher relationship. See Simms v. Conestoga. Student/Teacher Relationship The duty of care owed to students by their teachers is well established and evidenced by the deluge of litigation against teachers, school boards, etc on whether the standard of care has been met or not. The standard of care is that of the careful and prudent person. In practice, the field of operation often extends beyond the four walls of the classroom. For instance, students on a field trip outside the school may sue the teachers and school boards for resulting injuries. Relationships of Supervision In addition to the student/teacher relationship, employee-employer relationships impose on the employer a duty to ensure the safety of the employee, the safety of work premises and instruments and/or the method of work. There is a duty of care in carrier-passenger relationships as well as in inmate/prison officer relationship. Creators of Dangerous Products Tort law also imposes a special duty of care on those who manufacture or distribute potentially dangerous articles. This duty encompasses the issuance of adequate warnings and updating the users of such products of newly discovered risks associated with the product. Warnings will not absolve the dft of liability if they knew that the product was negligently manufactured. The duty of care extends to three areas: design, manufacture, and marketing. See Buchan v. Ortho. Creators of Dangerous Products In cases of alleged negligent design, courts accept that there are trade-offs associated with design decisions. Weight must be given to industry standards. It is enough that the injury was caused by the way the product was designed. Ptf must prove that the product was negligently designed. See Baker v. Suzuki but compare with Nicholson v. John Deere. In determining whether a design is negligent, courts apply the risk-utility approach. Creators of dangerous products A manufacturing defect occurs when one product is manufactured improperly and a defect occurs. Even if due care has been exercised in the design and manufacturing of a product, a manufacturer can be held liable for failing to adequately warn the consumer of the appropriate use of the product or the risks associated with its use. Warnings are not necessary for obvious and apparent risks. Creators of Dangerous Situations A related question is whether a person who has accidentally created a dangerous situation for someone else has a duty to take reasonable steps to avert the potential harm. The law on this point is unclear. In Oke v. Weide, the dft accidentally collided with a traffic sign standing on a dividing strip. Dft failed to report this to the police. The next day the deceased was impaled by the bent traffic sign. The court held that the accident was not foreseeable. Was there a duty to report? Creators of Dangerous Situations Although there has been no specific judicial decision on the point, various dicta strongly suggest that there is a duty of care to warn potential plaintiffs of the existence of an accidentally created danger. The person that has created the risk or dangerous situation has the duty to take reasonable steps to avert the potential harm. The Duty to Prevent Crime Jane Doe was raped at knife point in her own bed in 1986 by the “balcony rapist” who climbed into the apartments of his victims from their apartment balconies. Jane Doe was the 5th victim. The police knew of the “balcony rapist” but failed to warn Jane Doe because they feared that women, if warned, might become hysterical (SEXISM?) and cause the rapist to flee. JD felt she had been used as a “bait” and sued the police in negligence. Jane Doe and the Balcony Rapist In determining whether the police were negligent, MacFarland J. opined that in certain circumstances, “the police have a duty to warn citizens of foreseeable harm. However, in some other circumstances, it might be decided that a warning would cause general and unnecessary panic on the part of the public which could lead to greater harm. A decision not to warn would not excuse a failure to protect. The duty to protect would have to be accomplished by other means.” Jane Doe: Attention to the details The police had linked the 4 previous rape incidents. They knew the rapist would continue to attack women until he was stopped. They knew he was attacking single white women living alone in 2nd and 3rd apartments with balconies in the Church and Wellesley area of Toronto. The police were aware of a specific threat or risk to a specific group of women and they did nothing to warn them. The police failed utterly in their duty to protect Jane Doe by failing to warn her. The Police: O’Rourke v. Schact Similar to Jane Doe’s case, in O’Rourke v. Schact, a well-lighted barrier which marked a detour around some highway construction was knocked over by a car at night, so that it was no longer visible to motorists on the highway. The OPP investigated the accident but failed to take steps to warn oncoming traffic. Ptf injured himself when he drove into the unmarked ditch. The CA ruled that there was an affirmative duty of care on the Police to warn motorists. Hit and Run Statutes Apart from the Quebec law, and perhaps in response to the Oke v. Weide scenario, many jurisdictions have recently enacted laws forcing motorists involved in accidents to stop, give their names and addresses and render assistance. Prior to the enactment of such laws, no duty to render aid was recognized where the driver innocently caused the original peril, but there was such an obligation where the injury was tortiously inflicted. See Lagenstein v. Renaud. Duty of Care Owed to Rescuers In Horsley v. MacLaren (the Ogopogo case), Matthews fell overboard a yacht. The owner of the yacht, MacLaren, began a rescue attempt by backing towards him. This was the wrong procedure. Another yacht passenger, Horsley, jumped overboard in an attempt to rescue Matthew but died before he was rescued himself. Matthew was held liable in negligence by the trial judge. On appeal to the CA, it was held that: Ogopogo Case “where a person gratuitously and without any duty to do so undertakes to go to the aid of another, he incurs no liability UNLESS what he does worsens the condition of the other.” Since MacLaren’s rescue effort had not worsened either Matthew’s or Horsley’s position, even though it may not have complied with the standard of the manual on rescue at sea, he was relieved of liability. Ogopogo and Reliance R/Ships It may therefore be stated with confidence that there are judicial dicta to the effect that persons who volunteer to offer aid or assistance must do so in ways that are reasonable. The standard of care is that of the ordinary person. The rationale seems to be that by beginning to assist, the volunteer prevents other forms of assistance and creates a reliance relationship with the victim. The paradox here is that a callous bystander is treated better than a well intentioned but careless person. The Aftermath of Ogopogo Post Ogopogo legislations in Alberta and US try to balance between punishing incompetent rescue efforts and the encouragement of public rescue attempts. Therefore, unless GROSS NEGLIGENCE is exhibited in the rescue effort, no liability will attach to an altruistic rescuer. Duties Owed to the Unborn Once a child has been born alive, the law recognizes, since Duval v. Seguin, that his parents may sue for prenatal damage or injury arising from the negligence of a tortfeasor. Remarkably, this duty to a born-alive child is not owed to it by its mother. The policy reason being that it would interfere with the autonomy of the mother and create a judicial regulation of lifestyle decisions by pregnant mothers. See Dobson v. Dobson Duties Owed to the Unborn Wrongful birth or pregnancy is actionable. The rationale is not that the dft caused the infant’s injury but that s/he failed to prevent its birth. Mothers now may sue their doctors if the latter fail to inform them adequately of the conditions of the fetus. A biological father not married to the mother may not recover. It is unclear whether there is a cause of action for wrongful life. Courts may not look favourably on those who complain about the circumstances of their conception. Jones v. Rostvig Jones sued Dr. Rostvig for damages and costs of caring for a child born with Down’s Syndrome. Jones alleged that she would have aborted the fetus had Rostvig met the appropriate standard of care and advised her on the risks of Down’s Syndrome. In finding for the ptf, the court reasoned that Rostvig owed Jones a duty of care to alert her as to the risks associated with Down’s Syndrome. Wrongful Life There is as yet no definitive dicta or decision supporting a right of action for wrongful life. The case of Petkovic v. Olupona considered the various decisions and dicta on the point and expressed the view that it was a matter best left for full and proper trial. Duty of Care & Psychiatric Harm Since Bourhill v. Young, the law on psychiatric damage has changed. The main test for establishing duty is foreseeability of shock. Further, ptf must suffer recognizable psychiatric illness. Mere grief and sorrow do not suffice. Ptf must also have been endangered themselves or must have witnessed with their own senses the accident or its immediate aftermath. Seeing the accident on TV is not enough. See Devji v. Burnaby; Alcock v. Chief Constable. Duty of Care & Psychiatric Harm Persons owed the duty of care include immediate rescuers, close relatives and loved ones. It is doubtful whether mere bystanders are owed a duty. Rhodes case strongly recommends that Canadians should possess “reasonable robustness and fortitude.” Where false information is negligently communicated, causing psychiatric harm, the duty is breached.