Special Standards of Care

Tort law recognizes that a strict and general
application of the universal objective
standard of care in all cases may yield
absurd and unjust results. Hence, the
general standard of care is modified for
certain categories of tortfeasors to produce a
nuanced, contextualized and reasonable
result.
Recognized Special Categories
The Young
 The Mentally and physically disabled.
 Professionals such as lawyers and
physicians
 Statutorily prescribed standards of care
 Custom

The Young

Negligence law takes into consideration the age of
the alleged tortfeasor. This indulgence arises from
the principle that young children are not expected
to possess the same common sense, knowledge,
control, and intelligence as adults. As Shulman has
argued, “to do otherwise, would be to shut [the
law’s] eyes, ostrich-like, to the facts of life and to
burden unduly the child’s growth to majority. The
courts recognize that a “minor’s normal condition
is one of recognized incompetency.”
The Young
For obvious reasons, (inability to pay, and
general indulgence granted to children by
adults) there are few cases that deal with
negligence suits against children.
 However, the issue of special standard of
care for children may arise where a child is
the plaintiff and the defendant alleges
contributory negligence against the child.

The Young

Tort law recognizes a difference between children
of “a tender age” and “children beyond tender
age.” What is a “tender age” in tort law? No
definite line has been drawn by the courts but the
cut off point seems to be “where the age is not
such as to make a discussion of contributory
negligence absurd.” Generally speaking, children
below 5 cannot be held liable in contributory
negligence. The SC in Ware’s Taxi case suggested
that children aged 6 yrs and above may be held
liable in negligence.
The Young: ‘tender age’

It seems however that age alone is not the
sole determinant. In Gosselin’s case, an
infant, one week less than 3 yrs old, was
excused from liability when he injured a
baby by dragging her on the ground. In the
reasoning of the court, “mere age is not in
itself the test, but rather the capacity of the
infant to understand and appreciate danger.”
The Young: Beyond Tender Age

A special standard of care operates for children
aged 6 and 18. In Canada, the standard of care is
“whether the child exercised the care expected
from a child of like age, intelligence and
experience.” Prima facie, this standard seems
objective (in a modified sense) and divorced from
the peculiar appetites or subjective idiosyncrasies
of the child in question. In reality, the test
subjectivizes the standard as it considers the
child’s peculiar “intelligence” and “experience”.
The Young: Subjective or ….?

The elements of intelligence and experience bring
to bear factors which may be subjective or at least,
“modified objective.” Children of a similar age
may have enormously different life experiences
intelligence. Would a child of 8 raised in a horsebreeding farm be expected to have the same
experience as an inner-city child of 8 who has no
experiences with a farm of horses? Does the
neighbourhood where the child was raised matter?
The Young: A Subjective Test?

Heisler’s case is authority that in Canada, the
subjective test applies. “All of the qualities and
defects of the particular child and all of the
opportunities or lack of them which he might have
had to become aware of any particular peril or
duty of care must be considered…The test is a
subjective one…we consider here the particular
child.” Per Addy J., (Court applying earlier ratio
of SC in McEllistrum v. Etches. Distinguish this
from the state of the law in England.
The Young

Consequently, some jurisdictions, especially
England, have deemed it less problematic to use
age as the sole criterion. This is an attempt to
bring a higher level of objectivity to the standard
of care expected of young children. Be that as it
may, it is often difficult to succeed in a negligence
action against children. Lability has been denied
where a child of 8 struck a match in a farm barn;
child of 11 handling gasoline, etc.
Parental Liability

In the light of grave difficulties that may
arise in finding children liable in
negligence, some states or provinces have
enacted legislation to make parents
responsible for wrongful acts intentionally
committed by their children. See for
example, Parental Responsibility Act, 2000,
S.O. 2000, c. 4. See also, Shannon v. T.W,
Cinnirela v. C.C. at pg 44 of Supplement.
Adult Activities Doctrine

Note that where a child or a minor engages in
dangerous adult activities, such as driving a car,
s/he must conform to the standard of the
reasonably prudent adult. (Dellwo v. Pearson).
What is an “adult activity”? See McErlean’s case.
It seems that where the activity in question is such
that there is a general expectation by the public
that the person undertaking is an adult, the courts
would likely construe such an activity as “adult
activity.” Ryan v. Hickson
The Aged and the Infirm


There is slender judicial authority abroad for the
rule that the aged and the infirm may get some of
the indulgence granted to children (Daly v.
Liverpool). In Canada, the courts have not yet
developed a consistent separate standard of care
for the aged and the infirm. Is the weakness of
youth similar to the infirmity of old age?
Query: what of the mentally ill? See Buckley’s
case, (the syphilitic truck driver) and compare
with Roberts (stroke-prone driver)
The Mentally Ill

Here, the ‘fault’ theory of torts conflicts with the
‘compensation’ theory. Canadian case law
suggests some degree of indulgence for the
mentally ill. In Buckley’s case, a truck driver
whose syphilis had progressed to mental delusion
was excused from liability on the grounds that his
temporary insanity prevented him from
discharging his duty of care. However, mental ill
health is not enough.
Fiala v. Cechmanek


In Fiala’s case, the Alberta Court of Appeal
opined that in order to escape liability, the dft must
show on a balance of probabilities that: As a result
of his/her mental illness, the dft had no capacity to
understand or appreciate the duty of care owed at
the relevant time; or
As a result of mental illness, the dft was unable to
discharge his duty of care as he had no meaningful
control over his/her actions at the time the relevant
conduct fell below the objective standard of care.
Fiala v. Cechmanek

Query: Are the rationes decidendi in Fiala
sufficiently objective test? And why does
the reasoning of the Alberta Court of Appeal
pay deference to the fault theory of tort at
the expense of the compensation theory?
Contrast Fiala with with Roberts v.
Ramsbottom
Professional Negligence

Since Hedley Byrne, the courts in commonwealth
jurisdictions have accepted that in the absence of
contractual relations, an action may be launched in
negligence against a professional. Tort liability
will arise from a relationship created by the
assumption of responsibility, regardless of the
existence of a contract. Where there is a contract,
the tort remedy is concurrent with the contractual
obligations of the professional.
Professional Negligence

The leading authority in Canada on the
liability of professionals is Central Eastern
Trust Co., v. Rafuse. As the SC reasoned, for
a tort liability to arise against a professional,
there must be sufficient proximity giving
rise to a duty of care between the ptf and the
dft. Second, the scope of the duty of care
must exist independent of any contractual
obligations.
Rafuse Case


Third, liability in tort will not be permitted if the
consequence would be to enable the ptf escape or
circumvent a contractual exclusion or limitation of
liability clause with respect to the act or omission
which also constitutes the alleged tort.
Where these elements have been satisfied, an
action in negligence may then proceed against a
professional.
Justification for Higher Standards

The general standard of care is made stronger for
professionals. As Fleming explains, “those who
undertake work calling for special skill must not
only exercise reasonable care but measure up to
the standard of proficiency that can be expected
from such professionals.” The test is not whether
the dft’s performance was to the best of his/her
ability. The test is whether his/her performance
was up to the standard of a reasonably prudent
professional in like circumstances.
The Standard for Professionals

‘The degree of skill consistent with the
function discharged, that is, consistent with
the measure of skill displayed by others
reasonably competent in that professional
touching matters of like kind. Perfection is
not expected; the world of work, not the
ideal of the debating area, is the standard.”
Wilson., J. in Trident Construction.
The Standard for Professionals

The general principle is that every professional
group has its own individual standards. Each
member of a profession must conform to the
specific or peculiar standards of his/her
profession. Eg. A police officer would be expected
to act like a “reasonable police officer”, etc.
Query: What would be the test for unrecognized
and unregulated “professions”? See Shakoor v.
Situ (liver failure from Chinese herbal treatment
of skin ailment)
LAWYERS

The decision of the SC in Rafuse is the leading
authority on the standard of care required of a
lawyer. “ A solicitor is required to bring
reasonable care, skill, and knowledge to the
performance of the professional service which he
has undertaken. The requisite standard of care is
that …of the reasonably competent solicitor, or the
ordinary solicitor or the ordinary prudent
solicitor.” In effect, an attorney would be liable if
her “error or ignorance was such that the ordinary
competent solicitor would not make nor exhibit.”
Does the Locale Matter?

In Page v. Dick, the court held that the standard of
care required of a lawyer engaged in “mixed bag”
practice was that of a “reasonably competent
general practitioner in the Toronto area.” But in
Marbel’s case, the SC of BC held that the standard
of care is “reasonable care and skill regardless of
geographical location and practising
environment.” Given that lawyers are admitted by
a Provincial Body of Benchers it would be absurd
to have different standards in the same province.
LAWYERS

Though lawyers revel in the public notion that
they are members of the “learned” profession, the
law does not really expect lawyers to know all the
law applicable to the performance of a particular
legal service. What is expected is that s/he has
“sufficient knowledge of the fundamental issues or
principles of law applicable to the particular work
he has undertaken to enable him to perceive the
need to ascertain the law on relevant points.”
(Rafuse)
Lawyers

The law does not require the lawyer to
guarantee victory to the client. What is
required is “careful, unnegligent advice on
matters of law.” Errors of judgment will not
necessarily amount to negligence. See
Brenner v. Gregory. What is an “error of
judgment?”
Defining “Error of Judgment”

“An error of judgment is one that would not
have been made by a reasonably competent
professional person professing to have the
standard and type of skill that the dft holds
himself out as having…if on the other hand,
it is an error that a man, acting with
ordinary care, might have made, then it is
not negligent.” Lord Fraser, in Whitehouse
v. Jordan.
Error of Judgment in Practice
Query: Was Christopher Darden negligent
in OJ Simpson’s case?
 Query: Did the DA in Kobe Bryant’s rape
case make any “errors of judgment?”

Specialist Lawyers

Where a solicitor holds him/herself out as
having a particular expertise in a given area
of law, a higher standard applies. The
standard is not that “of a reasonably
competent solicitor but that of a reasonably
competent expert in the designated field.”
Ristimaki v. Cooper; Confederation Life
LAWYERS

There is no lower standard for the new wig. Once
called to the bar, the same general standard applies
to a lawyer irrespective of their age at the bar.
Only designated specialists or solicitors who hold
themselves out as such are required to conform to
that standard of care expected of a specialist.
Where a lawyer does not have specialist
qualifications in a matter that requires specialist
expertise, the better approach is for him/her to
inform the client accordingly.
PHYSICIANS

Like lawyers, doctors are not required to guarantee
a cure. The standard of care is that of the
reasonably prudent doctor. This is an objective
test. Thus, where a substantial number of other
physicians approve of his/her conduct, albeit
wrong, any resulting mishap would be regarded as
an error of judgment, not an act of negligence. The
opinion of other physicians may evolve with time
and it is the duty of the physician to update his/her
knowledge and skills accordingly.
Challand v. Bell

Ptf fell at 9.30am while working in his cattle barn.
He broke his left forearm, and fractured the radial
and ulnar bones. The fracture punctured the flesh
causing an open fracture. Ptf was taken to dft, a
general practitioner at about 11.30am. Ptf was xrayed and the dft looked at the wound and after a
careful survey, concluded that it was a clean one,
devoid of foreign matter. Dft set the fracture, put
the ptf in a cast, made periodic checks, and put the
pft on antibiotics.
Challand v. Bell

On Tuesday morning, dft became alarmed at the
state of the ptf and sent him to off to a specialist,
Dr. Wilson. The latter diagnosed acute fulminating
gas gangrene and immediately amputated the ptf’s
arm just below the elbow. Although the testimony
of the experts differed, the court found that the
dtf’s conduct was not only correct for a general
practitioner but in fact did not differ from that
which a specialist would have given. In sum, the
action in negligence was dismissed.
Exception to Customary Practice

Courts lack the expertise to second-guess the
practices adopted by physicians in their
profession. This is especially so where the
procedure involves difficult or uncertain or highly
technical questions of medical practice. However,
an exception would be made if the standard fails
to adopt “obvious and reasonable precautions
which are readily apparent to the ordinary finder
of fact” Sopinka, in ter Neuzen v. Korn.
Specialist Physicians

Like lawyers, doctors who profess or hold
themselves out as specialists in certain
fields of medicine would be held to a higher
standard of care. A specialist must exercise
the degree of skill of an average specialist
in his field. See ter Neuzen v. Korn.
Novice doctors and Interns

Like lawyers, once admitted to practice
medicine, novice doctors are held to the
same general standard of care as
experienced doctors. See Wills v. Saunders.
However, interns are held to the standard of
a reasonably competent intern. However, if
an intern holds himself out as a fully
qualified doctor, he will be held to the
standards of a reasonably prudent physician.
Vancouver Gen. Hosp. v. Fraser

2 interns, “cloaked with all the ritual and
paraphernalia of medical science” wrongly read
the x-rays of a car accident victim. The victim
subsequently died as a result of complications
from a broken neck which their examination of the
x-rays failed to detect. Justice Rand reasoned that
the interns held themselves out as fully qualified
doctors. A prudent doctor would not have made
the fatal mistakes which the interns made.
Does the Locale Matter?

Like lawyers, there is slender authority for the
proposition that a physician would escape liability
in negligence if his/her conduct is in conformity
with local standard. The locality rule now seems to
have been jettisoned. A principle that permits an
inferior standard of medical skills for rural
Canadians while affording the highest standards
for urbanites is objectionable. However, one must
distinguish between “skill” and the availability of
sophisticated tools or facilities in urban hospitals.
Physicians in the workplace

The standard of care for physicians working with
nurses or other medical personnel does not require
the physician to be personally involved in the
minutiae of caring for patients. Where there is a
reasonable expectation that another medical
personnel, for example, a nurse or a junior doctor
would undertake certain tasks defined by the
physician, any resulting negligence may not be
visited on the physician.
Laidlaw v. Lions Gate Hospital

A surgeon relied on a junior resident doctor
to close up surgical incisions following an
operation. The resident doctor and nurses
negligently forgot sponges in the body of
the plaintiff. In an action in negligence, the
BC court reasoned that the surgeon was not
personally negligent but the resident doctor
and nurses were held liable in negligence.
Examples of Medical Negligence
Misdiagnosis of ailment
 Removal of wrong organ
 Improper sutures
 Misuse of anesthetic
 Removal of the wrong tooth
 Leaving behind swabs, sponges, scalpels,
etc

CUSTOM

There are circumstances where the standard of
care is determined by reference to the question
whether a person’s conduct was in conformity
with the general practice of those engaged in a
similar. In such cases, it may be said that the
collective habits of a group of people or profession
has acquired significant probative value, if not
legal force. There are policy, cultural, and
economic that justify the use of custom as a
special standard of the duty of care.
Scope and Elements of Custom

Deference is usually paid to customary practices
in matters transcending the ordinary experience or
competence of the trier of fact. Although there are
no minimum requirements, case law suggests that
a conduct amounts to “custom” by reference to (a)
the number of individuals conducting themselves
in like manner, (b) the length of time of that
practice, (c) the feasibility of the practice, (d) and
the reasonableness of the practice
Custom


He who alleges the existence of a custom must
prove it. However, in rare cases, the court may
take judicial notice of the existence of a custom.
Evidence of a general custom in not conclusive
proof that the dft acted reasonably. In Anderson v.
Chasney, the dft doctor failed to adopt a system to
ensure that all of the sponges which were used
during an operation were removed. His defence
that his procedure was consistent with the general
at that particular hospital was rejected.
ter Neuzen v. Corn


ter Neuzen’s case resolved the difficult question of
whether a person whose conduct is in conformity
with proven general practice of his profession can
be held liable in negligence. The SC, per Sopinka,
held that such a person cannot be liable, provided
her conduct requires expertise, knowledge and
skill ordinarily not possessed by the trier of fact.
(Maynard v. West Midlands; McLean v. Weir)
Custom cannot be a shield for patently negligent
conduct apparent to the trier of fact.
Statutory Standards of Care

There are some activities in which the appropriate
standard of conduct is prescribed by the legislature
instead of being left to the evaluative process of
judge and jury. (Fleming, at 137). Statutory
standards are prescribed before the fact and seek
to regulate certain industries, activities, trades, or
businesses. Non-compliance with statutory
standards, causative of damages, may constitute
evidence of negligence. (R v. Sask Wheat Pool)
Negligence per se Or Evidence of
Negligence

For decades, the courts in England, Australia,
Canada and the US have held divergent views on
the jural status of statutorily prescribed standards
of care. Are violations of those standards
conclusive proof of negligence or evidence of
negligence which the courts may in certain
circumstances take into account? Can a person
injured where a statutory standard of care has been
breached sue in tort?
The Canadian Position

On the former question, American/Canadian
courts adhere to the theory that violation of a
statutory standard of care is evidence of
negligence. On the other hand, the AngloAustralian position is that it is negligence per se; a
theory which gives short shrift to the element of
causation in attaching liability in negligence. For
example, what is the relevance of not having a rear
light in one’s vehicle (a traffic violation) to a headon collision with a pedestrian.
R.v. Sask Wheat Board

On the latter question, the SC held in R v. Sask
Wheat Board that there is not tort of breach of
statutory duty in Canada. This case concerned the
breach of the Canada Grain Act which resulted in
the plaintiff’s economic loss. The dft did not owe
the ptf any common law duty of care. The major
impact of the Wheat Board case is that courts will
not find a dft liable in negligence merely because a
statutory standard of care was breached.
Scope of Statutory Standards

For a ptf to successfully rely on the dft’s violation
of a statutory standard as evidence of negligence,
s/he must show that (a) s/he belongs to the
particular class of persons which, in the court’s
opinion, the statute was intended to protect, (b)
that the injury is of a kind within the intended
scope of the statute. (Gorris v. Scott: The intended
peril was the avoidance of the spread of animal
disease on high seas, not the physical protection of
animals on board. Sheep washed overboard)