Special Duties of Care

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
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
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
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
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
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.
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.
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
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.