Date: Fri, 13 Jun 2008 18:48

From: Lewis Klar

Subject: Novel Duty of Care?

Hi Tsachi:

I assume that the boy (who was 13 I think at the time of the incident) would have been covered by his parents' homeowners liability insurance which contains a liability coverage, even for accidents outside of the home (unless excluded ), for all family members.

The case is also an example of almost every negligence law dispute becoming a new category for Canadian courts, so that judges can constantly make new law by using their perceptions of good "policy". Isn't this just a foreseeable physical damage case which the SCC in Cooper said was an "established" category? As well, there are cases dealing with the liability of skilled and unskilled employees. In fact, one of our students argued such a case in small claims court and won. An employee working in a car dealership was sued by his employer for damaging one of the cars while moving it around. The action was dismissed. It was appealed but it settled.   

Lewis Klar

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?

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