Date: Mon, 8 May 2006 18:00:59 -0500

From: Richard Wright

Subject: Childs v Desomeaux

Childs v. Desomeaux certainly makes the wilderness of duty-proximity-policy in English and Commonwealth law even murkier in Canada.

I agree with Neil, David and others that this should have been viewed as a "feasance" situation involving a prima facie duty rather than a nonfeasance situation. While others at parties where alcohol is being imbibed may not have as much fun as Aussies do (or be as much fun as Aussies are), the potential for overconsumption and thus impaired skills and thus causation of injuries to others seems quite foreseeable in any country of which I am aware. If there need be an "act" or "activity" (applying the unfortunate view that identifies misfeasance and nonfeasance with acts and omissions), the provision of alcohol, and even the hosting of a party at which alcohol will be consumed, is certainly an act or activity entailing foreseeable risks of overconsumption leading to injuries to the guests and, more importantly, the highway victims of those guests. The host of such a party is certainly not a "stranger" having nothing to do with the risks foreseeably created by the intended drinking at the party.

If the host is truly a "stranger" to the risk, if as the court says the host has no prima facie duty due to lack of foreseeability-proximity to monitor or control the "autonomy" of the guests at the party (no matter how great the risk to the autonomy of those on the highways), then I don't see how the host can be found negligent, as Lewis argues, if the host notices the inebriation of the guest and then fails to intervene, thus giving rise to a duty to control the guest's driving away from the party. If there is no duty re events at the party, then there can be no breach of duty regarding those events. Nor does McLachlin explain how the stranger-host now becomes, differently than a true stranger walking by outside or even another guest, a contributor to the risk with a prima facie duty to intervene simply by viewing the inebriated guest, to whose inebriation (so the argument goes) the host did not contribute.

McLachlin's attempt to distinguish commercial hosts on the ground that they are expected by their guests to monitor and limit the guests' drinking is, of course, factually incorrect (has McLachlin ever been in a bar, especially one with more than one person serving drinks?) and is undermined by McLachlin herself, who subsequently notes the need to impose a duty on commercial hosts given their incentive to overserve their guests.

What comes through loud and clear in McLachlin's opinion is a certain set of policy concerns, IMHO not very well thought out or articulated. But this is supposed to be part of the second stage of Anns etc. I must confess bewilderment in trying to distinguish "proximity" from "policy" in many English and Commonwealth decisions. It may be that the social host should have no duty or (as I would prefer) a more limited duty toward the guests themselves given the "autonomy" (and assumption of risk) considerations applicable to those guests, but it does not follow, as the court seems to assume, that more extensive duties should not be recognized toward prospective victims on the highway given the quite different autonomy (and assumption of risk) considerations that apply with respect to them -- as in the case of landowners, who have different duties of reasonable care to entrants onto their land (with respect to the "feasance" risks created to those entrants by activities or things on the land) depending on the status of the entrants as trespassers, licensees or invitees, due to differing autonomy and rights interests.

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