Date: Wed, 10 May 2006 12:19:43 -0600

From: Lewis Klar

Subject: Childs v Desomeaux

Firstly, let me assure you all that I was not so furious with Robert's response that I keeled over dead. I am still alive!

Just to clarify Robert's response. I am not sure whether Robert is arguing that opening just one bottle of wine is not careless and therefore imposes no duty on the opener to take steps to ensure that the drinker gets home safely, or whether Robert is contending that opening a bottle of wine creates a risk of harm which might impose a duty on the opener to do something, but in the circumstances of this type of case, it might be reasonable not to require him to do anything to prevent the harm. That is, he is conceding that the creation of all risks (and not just "unreasonable" risks as his response indicates) in itself imposes a duty to take care to avoid harm emanating from the risk, but he then would prefer to resolve the issue at the standard of care stage, by deciding that doing nothing to avoid the harm might be perfectly reasonable on the facts of any specific case. I assume that it is the latter that he is contending; and I agree that this seems to be the prevalent view on this list (McLachlin CJ aside). It is also by the way the position I take in explaining this in my text at p. 196.

I do think that it is important, however, to recognize (as Robert seems to imply), that this will leave the issue of what should the parties in my example have done (B, C, D, E) to ensure that A got home safely to the fact finder ( be it judge or jury). It seems to me very likely that if the parties' response to their obligation to ensure that A got home safely is that "we did not to anything at all because after all we were only slightly responsible for her drunkenness" or "we did not do anything at all because we did not think it was necessary" will unlikely meet with a favourable response from most judges and juries. They will come to the conclusion that since the law imposed a duty on them to do something (since they created the risk), they should have darned well done something. Doing nothing will probably not seem reasonable.

So yes ... the question of who creates the risk, which is the threshold duty question, is an important one and perhaps the Supreme Court did draw a "bright line" rule in defining this, since it feared the consequences if it did not.

Lewis Klar
Professor of Law
University of Alberta

>>> Robert Stevens 05/10/06 12:17 AM >>>

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.)

All conduct, of any kind, creates some sort of risk for other people. This morning I got out of bed, cycled into work, kissed my children and sat down and wrote this. All of these are actions which create risks for other people. (The last creating the risk that the reader will be so furious with my response that he'll keel over dead.)

Now, because these are examples of conduct all of which create risks for other people, are they cases where I should have refrained from acting? If my kiss passed on a disease, my cycling caused an accident or my getting out of bed injured my wife am I liable? Not unless I have been careless. The law draws a line between everyone's else's interest in not being harmed and my liberty of action.

Nonfeasance is literally not acting. (I ignore cases like Sutradhar where a careless action has failed to confer a benefit).

So returning to the hypothetical, the only party whose liability can absolutely be rules out on the ground is G. Is serving dinner and uncorking a bottle of wine action which you must take care in carrying out? Yes of course. Is providing wine? Yes? And so on.

Now does this mean that all of these people are liable to F? Of course not. Can the law require people not to open bottles of wine? No. What we need to ask is whether this sort of conduct is careless. If I open a bottle of wine and pour you a glass am I expected every time to say "make sure you don't drink too much?" Of course not, that would be unreasonable nannying. We need to know whether it is an unreasonable risk. We cannot duck these questions by trying to re-characterise action as if it wasn't. We have to identify the relevant conduct and see if it was unreasonable in relation to the relevant injured claimant.

The problem with Childs is it tries to duck the difficult question by creating a bright line rule. Perhaps they don't trust the courts at first instance to provide the answers.

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