From one extreme to another …

The Irish case Breslin v Corcoran & Motor Insurers’ Bureau of Ireland [2003] IESC23, [2003] 2 IR 203  held that the first defendant was not liable to the plaintiff where the defendant left his car unlocked and with the keys in the ignition as he went into a shop to get a sandwich and an unknown person stole the car and struck the plaintiff. The IEHC explained the outcome in causal terms; the IESC upholding the result as the theft of the car was found to be sufficiently foreseeable, but the manner of driving was not so foreseeable in the absence of particular reasons for anticipating dangerous driving.

 

The court seems to have some belief in careful joyriders (we have a much bigger history of the dangerous type); I think the result was motivated by insurance concerns to ensure the Bureau was paying out.

 

 

 

I find much to think about in the analysis in JJ v CC, 2016 ONCA 718, available at http://canlii.ca/t/gtxj7, released last week.  It's had me somewhat stuck much of this morning.

The facts:

A jury found the appellant, James Chadwick Rankin (“Chad Rankin”), carrying on business as Rankin’s Garage & Sales (“Rankin’s Garage”), partly liable for injuries suffered by the respondent, J.J. who, along with his friend C.C., stole a Toyota Camry from Rankin’s Garage and took it for a joyride. The car had been left unlocked on an unsecured lot, with the keys in the ashtray.  J.J. was a passenger in the car, driven by C.C., when it crashed. He suffered a catastrophic brain injury. 

The Court of Appeal held that Rankin’s Garage owed J.J. a duty of care.

Issues:

The court uses the traditional Caparo/Cooper test for new duty of care situations, so it relies heavily on foreseeability, proximity and lack of policy reasons to negate a duty.  I wonder if more should have been made of the garage's voluntary creation of a situation of potential risk or peril, which might then make both foreseeability and proximity less crucial.

The court, in passing, says the law on whether a third party (so someone injured by the thief's use of the car) is unclear in Canada, with cases going both ways depending largely on how foreseeable the subsequent injury to the third party is at the time of the theft.  I wonder what this case, with its stress on proximity, tells us about the result in the future in third party cases.

Much is made of the fact that the thieves are minors.  I wonder how much the analysis would have differed if they were over 18 years old.

The court does not spend much time on the intertwined issue of an intervening act and a separate remoteness analysis (rather than as part of the duty of care analysis).  That may be because the case on appeal was argued just on the duty issue, but for discussion purposes the issue nonetheless arises.

JJ was found 10% contributorily negligent.  I wonder if that's too low, though I understand the real-world considerations the jury was processing.  The garage was found 37% responsible.

Stephen