Dear Lewis:
If I was asked, “why is it wrong to leave keys in a car?” I think my answer would be because: 1) Minors might take the car for a joyride and injure themselves or others; and (2) even adults escaping might injure others in the course of their escape.
If a judge was trying to limit the liability he or she was imposing to those two types of cases where would those limits be introduced? At the duty stage, remoteness stage or somewhere else in the analysis? I would be interested in the thoughts of those on the list.
Sincerely,
Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)
From: Lewis N Klar [mailto:lklar@ualberta.ca]
Sent: October-14-16 12:12 PM
To: Ken Oliphant <Ken.Oliphant@bristol.ac.uk>
Cc: Kleefeld, John <john.kleefeld@usask.ca>; Eoin.Quill <Eoin.Quill@ul.ie>; Stephen Pitel <spitel@uwo.ca>; obligations@uwo.ca
Subject: Re: Duty of Care to Car Thief
It is an interesting decision but there are a few problems with it, in my opinion.
First, the Court treats "foreseeability" as an element of duty in a fact specific way. As I have argued elsewhere, "foreseeability" as a question of duty should be asked in a more general way. I.E. is it reasonably foreseeable that leaving a car unlocked may lead to an injury caused by a thief who steals the car? Yes or no? If yes, whether it was foreseeable in this case, because of the specific circumstances, should be left as a factor in dealing with breach based on the evidence. Otherwise foreseeability as a duty issue is treated as a question of fact,converting the duty issue into a question of mixed fact and law. In addition, once deciding foreseeability in a fact specific way for duty, the judge has decided the issue for the jury (or judge sitting alone).
Second, the Court for the most part conflates foreseeability and proximity. They essentially decide that there was proximity because there was foreseeability. See paragraphs 56 and 57. The Court essentially says there was proximity because the defendant should have foreseen and prevented the incident.
Third, the decision to treat this case as a novel category rather than fitting it in into already recognized categories, of which there were many to choose from, shows the total inadequacy of the category approach.
Fourth, the Court references Mustapha v Culligan for foreseeability. That was a remoteness, not duty case.
Fifth, and this I actually agree with, the Court treats this as a duty case and not a remoteness case, which in my opinion is the better approach.
As to the result, I think most non lawyers would think it is ridiculous, but they would not know that Canadian law has virtually dispensed with defences such as voluntary assumption of risk, or illegality, and generally that courts would take a generous approach to this type of injury/accident case. So I don't think the result is extreme, but I think the reasoning could have been better.
Lewis
On Fri, Oct 14, 2016 at 8:54 AM, Ken Oliphant <Ken.Oliphant@bristol.ac.uk> wrote:
Dear All. Much as I would love John to be right that Dorset Yacht is the "Bristol Boys" case, I fear that Spellcheck may have intervened here to "correct" the perhaps unfamiliar word Borstal...
Ken Oliphant
Professor of Tort Law and LLM Programme Director
University of Bristol Law School
Wills Memorial Building
Queens Road
Bristol BS8 1RJ
Tel: +44 (0)117 954 5347
http://www.bristol.ac.uk/law/
people/ken-a-oliphant/ @KenOliphant
A top 5 UK university with leading employers (2015)
A top 5 UK university for research (2014 REF)
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On 14 October 2016 at 15:04, Kleefeld, John <john.kleefeld@usask.ca> wrote:
Hello Stephen, Eoin and all. I need to read the actual cases that you’ve sent to be more certain of a response. But in the meantime I’ll say that in analyzing such cases, I’ve always found helpful a statement from Hart and Honoré’s wonderful causation study. It is to the effect that the general principle is that the free and fully informed decision of a person, intended to exploit the situation created by the defendant, will constitute an intervening act that breaks the chain of causation. I’ve come back to this statement time and time again and have asked my students to apply it to various cases to see if they think they were correctly decided. It’s a general principle, meaning that it’s subject to exceptions. For example, even if the loss is caused by a criminal act, it won’t be held to be an intervening cause if the defendant had a duty to prevent against exactly such an act. The classic example is Dorset Yacht v Home Office—the “Bristol Boys” case. Foreseeability could be an exception too, but pinning it on that seems to invite all kinds of speculation, or perhaps expert evidence, on what the crime rates were in a particular area and so on. I look forward to hearing what others have to say on this; I expect that it would have some interesting applications to the growing problem of cyber-security.
John Kleefeld
Associate Professor, College of Law
University of Saskatchewan
15 Campus Drive
Saskatoon SK S7N 5A6
tel: (+1) 306.966.1039
email: john.kleefeld@usask.ca
skype: johnkleefeld
twitter: @johnkleefeld
web: http://law.usask.ca/find-
people/faculty/kleefeld-john. php
Read my most recent article, co-authored with former student Kate Rattray, on editing Wikipedia for law school credit: http://ssrn.com/abstract=
2729241.
Also, just published—“Contributory Fault at 90,” my book chapter in Quill & Friel’s Damages and Compensation Culture: http://www.bloomsbury.com/au/
damages-and-compensation- culture-9781849467971.
From: "Eoin.Quill" <Eoin.Quill@ul.ie>
Date: Friday, October 14, 2016 at 10:26 AM
To: Stephen Pitel <spitel@uwo.ca>
Cc: "obligations@uwo.ca" <obligations@uwo.ca>
Subject: RE: Duty of Care to Car Thief
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.
Eoin Quill
School of Law
University of Limerick
From: Stephen Pitel [mailto:spitel@uwo.ca]
Sent: 14 October 2016 13:59
To: obligations@uwo.ca
Subject: ODG: Duty of Care to Car Thief
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
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Professor Stephen G.A. Pitel
Faculty of Law, Western University
(519) 661-2111 ext 88433
Vice President, University of Western Ontario Faculty Association
Treasurer and Corporate Secretary, Canadian Association for Legal Ethics
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