Date: Fri , 13 Jun 2008 19:01

From: Russell Brown

Subject: Novel Duty of Care?

Dear Tsachi,

I agree with Lewis - the plaintiffs were clearly going after the parents' homeowner insurer. As to the policy considerations, there was a fair bit of commentary immediately after Cooper v. Hobart was decided to the effect that all the policy heavy-lifting was going to eventually occur at stage 1, and that stage 2 would probably just fall into disuse. (In fact, this was suggested by the nature of the policy considerations considered at stage 1 in Cooper itself). I agree that the question of whether we should even look at "policy" considerations (or whether we can separate policy from non-policy considerations) are probably not easily resolved, at least over a few emails. Irrespective, however, of where you or I stand on that particular divide, I agree with your point about "proximity" (as conceived at the SCC at least) swallowing everything up, although perhaps we should have seen it coming (see McLachlin J.'s description of "proximity" in CNR v. Norsk).

With best wishes,
Russ

Quoting Lewis KLAR:

Hi Tsachi:

I assume that the boy (who was 13 I think at the time of the incident) would have been covered by his parents' homeowners liability insurance which contains a liability coverage, even for accidents outside of the home (unless excluded ), for all family members.

The case is also an example of almost every negligence law dispute becoming a new category for Canadian courts, so that judges can constantly make new law by using their perceptions of good "policy". Isn't this just a foreseeable physical damage case which the SCC in Cooper said was an "established" category? As well, there are cases dealing with the liability of skilled and unskilled employees. In fact, one of our students argued such a case in small claims court and won. An employee working in a car dealership was sued by his employer for damaging one of the cars while moving it around. The action was dismissed. It was appealed but it settled.   

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