Date: Tue, 31 Jan 2006 09:08:55 -0500

From: David Cheifetz

Subject: Young v Bella 2006 SCC 3

Young is another example of an unusual SCC analysis.

Young sustained psychiatric injury, but not physical injury, as a result of the defendant's negligence. She was fully compensated for her pecuniary losses. She also received an award for her non-pecuniary general damages. The amount, $439,000 was greater than cap - probably about $250-275K then though I didn't check. Nonetheless, the SCC held that the cap did not apply.

In my view, it's explanation why, in para 65 and 66, does not make sense. The only difference between Young's case and "ordinary" catastrophic injury cases is that she did not suffer a "physical" injury due to the defendants' negligence (with or without psychiatric injury), she sustained only psychiatric injury. So what? If we apply Young for what it logically means, it stands for damages proposition that the a jury award can exceed the cap so long as the amount of the excess is not so great as to shock the conscience of the court.

Young, until it's overruled or limited, means it's lawyers' negligence, in Canada, for any lawyer to sue personal injury claims if a jury is allowed under applicable provincial law.

The duty of care discussion commencing in Young at para 28-32 reads like a retreat from Cooper v Hobart's refinement of the analysis stage analysis. The factors the SCC mentions in paras 29-32 which arise out of the professor-student relationship - as emphasized in para 31 and so, in the Cooper framework, are to be considered at the 1st stage of whether to recognize the prima facie duty of care. They're not the 2nd stage issues touching on "the effect of recognizing a duty of care on other legal obligations, the legal system and society more generally". Who cares if the university argued them as 2nd stage policy issues? The SCC is supposed to get the law right.

David Cheifetz
Bennett Best Burn LLP

----- Original Message -----
From: Neil Foster
Sent: Monday, January 30, 2006 7:50 PM
Subject: ODG: Young v Bella

Dear Colleagues;

I found the Supreme Court of Canada decision on 27 Jan 2006 in Young v Bella 2006 SCC 3 fascinating. For those who haven't come across it yet - in a bizarre set of circumstances a Uni social work student who submitted an essay on child sexual abuse with an appendix containing a "first person account" by an abuser (which she had copied without proper footnoting from a book) was suspected by her lecturer of being a child abuser. Without her knowledge this suspicion was reported to child welfare authorities who put her on a "black list" and hence (not surprisingly) she had problems getting work in the field after graduating! She sued in defamation and negligence when the error had been discovered, and while the action in defamation failed she was awarded some $840,000 in damages in negligence, a verdict which the SCC upheld.

As an academic at the beginning (here in Australia) of the academic year the case is a good reminder of the importance of taking my responsibility for student welfare seriously; eg

34 Those whose professional responsibilities include the exercise of such power over the careers and future lives of fee-paying students are required to take the necessary care to get their facts straight before taking a potential career-ending action in relation to a student.

It is a salutary exercise to read the account of how the accusation snowballed from a "gut feeling" of the student's lecturer.

More to the point for this list I would be interested in other's comments on the tort questions raised. The SCC accepts at [56] that a case in negligence is possible despite it looking like a classic defamation case, and this is a question the High Court of Australia hasn't definitively addressed. But we do have the decision in Sullivan v Moody (2001) 207 CLR 562 from a few years ago rejecting a negligence claim in a case of reporting child sexual abuse, and at para [54] of the majority judgement strongly hinting that a negligence claim could not be brought where defamation was the "proper" claim. (I see from Balkin & Davis 3rd ed at 546-547 that in NZ a similar view has been taken in Midland Metals Overseas Pte Ltd v Christchurch Press Co Ltd [2002] 2 NZLR 289.)

I must say that I think, however, that even the HCA might have upheld the decision in Young v Bella - as the SCC says, there should be protection against suit if there is reason to report even something which is just a suspicion, but here there was not even enough material to have a reasonable suspicion! I suppose the case may raise the defamation/negligence clash in this way- that is, was the defamation claim rejected because the report was in some sense made under claim of "qualified privilege"? Should this aspect of the defamation law have been able to be circumvented in the negligence claim? I tend to think (without doing the work to check this out yet!) that a defence of qualified privilege should also have failed here.

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