Date: Tue, 9 May 2006 17:03:26 -0600

From: Lewis Klar

Subject: Childs v Desomeaux

Hello:

No-one denies that drinking and driving is a big problem in Canada, and that we should all do something about it. Everyone feels sorry for the victims, and everyone is a potential victim.

Okay, now that I have got that out of the way, let us get down to tort law.

The problem which the Supreme Court was having with Childs is figuring out who "created" the risk of the accident and who should therefore have done something about it.

I wonder if you would indulge me by considering the following exam-type hypothetical.

"It is A's birthday. She is turning 21. B, her friend, invites her out to dinner to celebrate it. Two other friends, C and D, agree to join them. C volunteers to bring two bottles of wine (it is a BYOB restaurant). D agrees to be the designated driver. The restaurant is "E's Fine Dining". At the restaurant, the waiter uncorks one of the bottles. There is a corkage fee. A, B, and C all drink. After the first bottle is finished, the waiter offers to uncork the second bottle, they agree, and he does so. At the end of the meal, A stands up to go to the washroom, and realizes she feels dizzy. Evidently she has consumed a little too much wine for her tolerance level. She sways a bit, and bangs into a chair. This is observed by everyone, including "G", who is a diner at another table, and by the waiter. B pays for the meal for everyone. A declares in a slurred and loud voice that she will walk home. No-one insists that she be accompanied or be driven home. They all say goodnight and leave. On the way home, A because of her inebriation, wanders onto the road, against a red light. Driver F swerves to avoid hitting her, drives into a telephone pole, and is injured. Driver F sues everyone."

Everyone in this problem (including "G") could have done something to prevent this accident. No-one did a thing. Who created the risk of the accident? They all played a role; all by overt actions and G by inaction.

Who exactly would you include in the "creation of risk" role? I assume most would exclude G. You would all of course include A. Would you include B, C, D, and E? It all depends on your definition of "risk creation". (To recap: B did the inviting and paying, it was C's wine, D was the designated driver, and E served the dinner and uncorked and poured the wine, for a fee.)

McLachlin C.J. for the Supreme Court did not draw the line where some of us might. But I think most are on the same page. It is just a question of how much "participation" moves you from a by-stander to an actor.

Lewis Klar
Professor of Law
University of Alberta

>>> Robert Stevens 05/09/06 8:25 AM >>>

Am I right that Canadian law is now something like the following:

1) Commercial hosts owe extensive duties to grown ups that they take care not to injure themselves by drinking too much;

2) Social hosts owe no duty, or a duty only in exceptional circumstances, to third parties who are injured by the host's failure to take reasonable steps to regulate the alcohol served at a party?

On its face this looks the wrong way around. The customers have exercised a choice to drink, and many people, including me, would say they have to take personal responsibility for that. Third parties who are injured had no choice in the matter at all.

So what justifies the difference? Presumably it is thought that the liabilities of commercial hosts should be more extensive than those of social hosts. Why? The only half convincing argument is that given at [23], that as the commercial hosts are in it to make profits, they have to take the burdens of paying for the harm which goes with this.

For me, this sort of policy based argument is the source of the confusion in cases such as Childs. As an outsider, to the extent that any common lawyer is an outsider, the decision requires future courts to answer impossible questions. The treatment of foreseeability, 'novel' duty situations and the peculiar approach to nonfeasance will all lead to future litigation.

(Despite the opinions of others on this list, I remain firmly of the view that if I have the choice between throwing a party which, with minimal precautions, creates no risks to anyone else, and throwing a party without those precautions which creates a risk of others being run over and killed, if I choose the latter course it is not 'nonfeasance'. Unless Canada has remarkably different road accident figures from the UK, deaths and injuries from drunk driving are significant risks.)

Childs may, just about, be defensible in result on the facts on the basis that there was no carelessness. However, I'll have to be careful on the streets when I visit Canada next month.

(If I go to a drinks reception at the university, is the university a commercial or social host? I'd better stick to orange juice.)

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