Date: Mon, 30 Jul 2007 08:35

From: Neil Foster

Subject: New Duty Case from the SCC - Syl Apps

Dear David

I hope it's clear that I don't disagree with the result in the case. But I'm not sure that your proposition 2 follows from your proposition 1, unless (which is always possible) I don't understand the analysis process. Given that all the Cooper stages of duty analysis are just that, questions about duty, then it seems to be that an analysis which reaches stage 2 can still conclude that the result precludes any need to go to trial on the factual issues, and is a one-size-fits-all proposition.

Or does the SCC require a factual analysis to determine the duty of care issue if it reaches stage 2?

Regards
Neil F

Neil Foster
Newcastle Law School
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> David Cheifetz 30/07/07 5:21 >>>

Dear Neil,

It seems to me that:

1. a decision that the answer was at stage 2 would have meant that the SCC had concluded there could be a prima facie duty of care;

2. would have meant that the SCC had to then dismiss the appeal on the basis that that there couldn't be a one-size fits all rule of no cause of action or yes cause of action, so it would have had to allow the case to go to trial to determine, "on a complete record" if there were overriding residual factors outside of the relationship between the parties;

3. conclusion 2 seems to imply that in some cases there could be a relevant limitation, imposed by some duty the care-giver owes to the child's family, on the scope of what's proper treatment for the child;

4. conclusions 2 and 3 are inconsistent with the first premise that the child's treatment is primary and the care-givers could not be put in a situation where they might have to decide if the scope of their duty to provide proper treatment to the child conflicted with some duty to the family.

We have to assume the SCC saw all of that and weren't prepared to countenance any analysis that would necessarily allow the action to continue.

Simplifying it - it seems to me that if one starts with the premise that proper treatment of the child is paramount, the SCC's decision had to be what it was, in the end result - bearing in mind that by the time the action arrived at the SCC the family had dropped the "bad faith" claim so that the only cause of action against the remaining defendants was in negligence. I'm open to be convinced otherwise, but I just don't see how (doublethink? aside), in practice, we can tell the care-givers both that all decisions have to be made solely from the perspective of what's best for the child and, by the way, if you're negligent in doing that the family can sue you based on a duty you owe to them, not just to the child. It's a fine (in all uses of that word) distinction in theory. In practice? I don't think so.

You'll note I'm ducking the question of the over-all adequacy of the SCC analysis that got us to the end result.

<<<< Previous Message  ~  Index  ~  Next Message >>>>>