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Date:
Mon, 14 Feb 2005 08:52:20 -0500
From:
Jason Neyers
Subject:
Remoteness: taxis
For
an interesting case where a standardized carrier was found liable
for special damages despite being unable (or at least unwilling)
to change their standard price, see Cornwall Gravel v. Purolator
(1978) 83 DLR (3d) 266 (the carrier could have declined knowing
of the risks).
Adam
Kramer wrote:
1
If the fare to the airport is legally controlled then that does
make a difference. It is analogous to the common carrier cases which
may be explained on the basis that the compulsion to enter the contract
limits the assumption of responsibility that can be inferred from
the fact of entering the contract in full knowledge of the loss
that may result from breach: Haultain CJS makes this point in Rivers
v George White and Sons Co Ltd (1919) 46 DLR 145 (Sask CA),
and Mayne makes it in Mayne on Damages (3rd edition, 1877).
This would mean that the taxi driver has lost a key method of signalising
acceptance of risk, and indeed of making the acceptance of risk
worth his while. I would say that where a price has been fixed in
advance and the human you are dealing with does not really have
the power to alter it (in this case the taxi driver who has no legal
power to vary, more often the employee selling to a consumer in
a large chain store who has almost no authority or de facto power
to vary), then no special knowledge communicated to the human promisor
can give rise to the inference of an assumption of risk by the promisor,
short of a very explicit assumption of risk that would satisfy the
sorts of requirements needed for a contract (intention to create
legal relations, unequivality, certainty). The question in the consumer
and controlled fare taxi case then becomes one as to the risk that
it is reasonable to infer the promisor has undertaken generally,
e.g. ignoring the special communication. This will depend upon the
broad factors likely to (appear to the promisee to) be relevant
in pricing or insurance. Of course it is difficult to draw the line
in such cases- no one said interpretation of contracts was easy.
In this case the taxi driver would probably not be able to (be understood
to) assume responsibility for Bill's possible loss without being
very clear indeed. 2
Yes it might make a difference- if the chance of him arriving
on time appears to one in Bill's position to appear to the driver
to be high, and/or the price asked for appears to appear to the
driver to signalise an appreciation of the risk (e.g. if he has
gone up from £15), then that may be enough to infer an assumption
of responsibility (i.e. to infer that the driver took the risk
because he was taking a gamble or even, if he was litigation savvy,
figured he wouldn't be sued for the money anyway as he was not
a defendant of substance).
--
Jason Neyers
Assistant Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435
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