In principle, I'd suggest that the right question in a case such as this is "what wrong or wrongs did the plaintiff suffer" and then ask who committed that wrong.
Here I think they were the victim of one wrong ( nobody assumed responsibility towards the claimant to protect them from the wrongdoing of another, and then failed to do so). That wrong was being injured by negligent driving. The defendants did not do that through the agency of the thieves.
Since Dorset Yacht that is not the way Commonwealth cases have looked at problems like this. Instead they ask questions without meaningful answers. Which is why we cannot answer them.
On Oct 14, 2016 1:59 PM, Stephen Pitel <spitel@uwo.ca> wrote:
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