Date: Fri, 13 Jun 2008 18:31

From: Tsachi Keren-Paz

Subject: Novel Duty of Care?

Jason Neyers said "I find the case frustrating since it could have been decided the same way, much more cleanly and without any resort to policy, using a contractual or voluntary assumption of risk analysis". 

Why? assumption of risk analysis and contractual allocation of risks through implied terms analysis OR the "for the benefit of minor" doctrine are based exactly on the same policy considerations that led to the denial of duty in Douglas. Besides, it should not be frustrating that courts resort to policy analysis as long they do so openly and correctly, but it is a kind of disagreement we are not going to solve.

To me, Douglas in another example to the Canadian tendency to strip the second part of the Anns/Kamloops test from any significance by doing almost all of the policy analysis as part of examining proximity (similar to what the SCC did in Childs). I have doubts whether this is desirable/helpful.

Finally, can someone explain to me the economics of the case? Why suing a 19(?) year old defendant for $285,000?

Best
Tsachi

Dr. Tsachi Keren-Paz
School of Law
Keele University
Staffordshire ST5 5BG
England
Office: CBC 2.015
Phone: 01782 584358
http://www.keele.ac.uk/depts/la/staff/tkerenpaz.htm
Book "Torts, Egalitarianism and Distributive Justice"

----- Original Message ----- 
From: Jason Neyers  
Sent: Tuesday, June 10, 2008 10:06 PM
Subject: ODG: Novel Duty of Care?

The Ontario CA has recently released its decision in Douglas v Kinger.

Apparently, damage to property (by an employee) is a new category of damage that requires a full Cooper v Hobart analysis. The policy-heavy analysis concludes that young and poor employees do not owe duties to their employers not to destroy the employer's property.

For those interested in Lister v Romford, the court concludes that the case is most likely wrongly decided for policy reasons.

I find the case frustrating since it could have been decided the same way, much more cleanly and without any resort to policy, using a contractual or voluntary assumption of risk analysis.

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