E. The Duty of Care

Author:Philip H. Osborne
Profession:Faculty of Law. The University of Manitoba

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The establishment of a duty of care is an essential element of liability in negligence. It is a question of law which requires the judge to determine if the defendant is under a legal obligation to exercise reasonable care in favour of the plaintiff This has proved to be a difficult and contentious task and in the course of the last hundred years a variety of approaches have been utilized.

Prior to the decision in Donoghue v. Stevenson,95courts approached this task by examining the particular relationship between the defendant and the plaintiff in the light of prior authority and the surrounding circumstances, and by declaring whether or not a duty of care was owed by the defendant. This incremental process of examination and classification provided guidance in respect of those relationships that had been the subject of judicial consideration, but it provided no underlying or unifying principle for application to future cases.

In 1932 the famous case of Donoghue v. Stevenson was decided. The plaintiff, Mrs. Donoghue, alleged that she visited a café with a friend who purchased for her an opaque bottle of ginger beer manufactured by the defendant, Stevenson. She poured some of it into a glass with ice cream and drank it. When the remainder of the ginger beer was poured into the glass, the decomposed remains of a snail floated out. She became ill as a consequence of drinking the adulterated ginger beer. The plaintiff had no claim for breach of contract because she had not purchased the ginger beer. She sued in negligence. The defendant argued that he owed no duty of care to the plaintiff.96The House of Lords disagreed. In a majority decision, it held that a manufacturer of products does owe a duty to the ultimate consumer to take reasonable care to prevent defects in its products which are likely to cause damage to person or property. This finding alone was sufficient to establish Donoghue as a products’ liability case of first importance.97Its fame was secured

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by a passage of Lord Atkin’s judgment where he attempted to formulate a general conception of relationships which gives rise to a duty of care. It is known as the neighbour principle. He stated:

The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.98In the last sentence of this passage, two intersecting ideas are identified as pertinent to establishing a duty of care. There is the notion of a close and direct relationship, which is captured by the word proximity used later in Lord Atkin’s judgment, and the idea of contemplation or foreseeability of damage to the plaintiff. It is not immediately apparent from the judgment if the concept of close and direct relationship (from which foreseeability of harm is an ancillary consequence) is the ultimate touchstone of a duty of care or whether the reasonable foreseeability or contemplation of damage is the defining criterion of a sufficiently close and direct relationship. This ambiguity is reflected in many subsequent judgments addressing the duty issue. Lord Atkin probably wished to emphasize the former, but after Donoghue the tendency of Canadian courts was to interpret the neighbour principle as requiring the foreseeability of harm to the plaintiff as the primary touchstone of duty of care. The terms neighbourhood, foreseeability, and proximity were seen as largely interchangeable.

The neighbour principle ushered in an unprecedented expansion of negligence liability which, in the course of the twentieth century, drew a wide range of persons, activities, and kinds of damage within the scope of the obligation of care. The duty of care was not, however, resolved simply on the issue of foreseeability. If that was the case, there would be little to distinguish it from the standard of care analysis, in which foreseeability plays such a central role. Duty of care plays a much more sophisticated role in negligence law. It is the primary instrument of control over the extent of negligence liability. Consequently, consideration must be given to public policy and whether or not the recognition of a legal obligation to exercise care in favour of the plaintiff is

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in the best interests of society. Quite simply, a court must be convinced that the imposition of a duty of care on the defendant is a good idea. For example, the incompetence of a judge may cause foreseeable damage to a litigant and poor parenting may foreseeably contribute to a person’s lack of self-esteem, but the courts have not recognized an actionable duty of care in either situation. Factors such as the independence of the judiciary, the integrity of the appeal structure, and the discretionary nature of judicial decision making all support a judicial immunity from a suit in negligence, and the potentially adverse impact on family relationships, the lack of a societal consensus over the way in which children should be raised, and causation and loss assessment problems caution against imposing liability on parents for the personality impairments of their children.

Until the latter part of the twentieth century, however, the assessment of policy factors was often hidden behind a façade of conclusion-ary statements about foreseeability. Judges were reluctant to openly acknowledge the controlling function of policy analysis and their role in evaluating the needs of society.

In 1977 Lord Wilberforce in Anns v. Merton London Borough Council99changed all of this. He called for a two-stage analysis of the duty of care issue, which separated the consideration of foreseeability from the policy assessment of societal need. He stated:

First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter - in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of may give rise.100The Supreme Court of Canada adopted the Anns dictum in Neilson v. Kamloops (City of)101and applied it consistently in a number of important cases from 1984 to 2001.

The first stage of the Anns/Kamloops test was interpreted as requiring no more than reasonable foreseeability of damage to the plaintiff

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and rarely created problems for the courts. The second branch of the test invited a full and open debate about the societal costs and benefits of recognizing a duty of care. It not only allowed the prima facie duty of care to be negated on policy grounds, but also allowed the duty to be restricted or modified to meet policy concerns. For example, before a duty would be recognized, the courts could demand that some additional element be found in the relationship, such as reliance by the plaintiff, an assumption of responsibility by the defendant, a specially close relationship, or some other element that defined the relationship more closely than foreseeability.

The Anns/Kamloops test reinvigorated the expansionary trends in negligence law in two ways. First, it created a presumption of a duty of care in all relationships giving rise to a reasonable foreseeability of damage to the plaintiff. Second, it placed on the defendant the unenviable, and sometimes considerable, burden of persuading the court that the plaintiff did not deserve to be protected from his negligent conduct. Because of its expansionary tendencies, the Anns dictum quickly fell out of favour with the English courts. They adopted a much more conservative, incremental approach that relies on the gradual extension of prior authority and an assessment of whether the proposed duty is fair, just, and reasonable.

It was not until the beginning of the twenty-first century that the Supreme Court of Canada turned away from Anns/Kamloops and reformulated the test of duty of care in a manner that was reflective of the concerns that motivated the English courts. The leading decision is Cooper v. Hobart.102The issue was whether the defendant Registrar of Mortgage Brokers in British Columbia was under a duty of care to investors who had suffered financial losses caused by the wrongdoing of a mortgage broker. The plaintiffs argued that the defendant was aware of serious wrongdoing on the part of the broker in August 1996, but failed to notify the plaintiffs that the broker was under investigation, and failed to suspend the broker’s license until October 1997. According to the plaintiffs, if the defendant had acted more expeditiously, their losses would have been avoided or lessened. The Supreme Court held that the defendant did not owe a private duty of care to the investors. In a unanimous judgment, the Court outlined the correct approach to the duty of care issue. First, it is necessary to decide if the case falls within any recognized category of relationships where a duty

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of care has previously been recognized or if it is...

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