Dear All,

 

Just as a footnote to Neil’s helpful discussion of this Canadian case, there is a recent English decision by Mrs Justice Yip which considers the implications for tort claims of both Patel v Mirza (on the defence of illegality) and R v Jogee (on criminal joint enterprise): Clark v Farley [2018] EWHC 1007 (QB) http://www.bailii.org/ew/cases/EWHC/QB/2018/1007.html

 

Best wishes,

James

 

 

Dear Colleagues;

In a significant decision on the duty of care owed in a negligence claim, the Supreme Court of Canada by majority, in Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19 (11 May 2018) https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17085/index.do has ruled that the owner of a garage who left keys to the cars accessible, did not owe a duty of care to one of two juvenile car-thieves who was seriously injured when a car stolen from the garage crashed. There was a dissent from Brown & Gascon JJ.

The majority, Karakatsanis J. (McLachlin C.J. and Abella, Moldaver, Wagner, Côté and Rowe JJ. concurring) held that the first stage of the authoritative Anns/Cooper test used in Canada for duty of care was not satisfied, as it was not reasonably foreseeable (in the circumstances?) that a stolen car would cause personal injury. At [34]:

 

“I do not accept that anyone that leaves a vehicle unlocked with the keys in it should always reasonably anticipate that someone could be injured if the vehicle were stolen. This would extend tort liability too far. Physical injury is only foreseeable when there is something in the facts to suggest that there is not only a risk of theft, but that the stolen vehicle might be operated in a dangerous manner.”

 

The dissenters, in a judgement written by Brown J, argue that the category which should be used for the first stage analysis here is the general question whether personal injury was reasonably foreseeable. They conclude that it clearly was- theft of a vehicle always involve a foreseeable risk that someone (presumably either the thieves or other road users) may be injured. They argued that there was no need to conduct a full Anns/Cooper analysis to determine duty of care; see [73]:

 

“In Cooper v. Hobart, this Court identified the first category of relationships in which a duty of care has been previously recognized as being that “where the defendant’s act foreseeably causes physical harm to the plaintiff”. To show that the circumstances of a case fall within this category, a plaintiff need only demonstrate that physical injury to him or her was a reasonably foreseeable consequence of a defendant’s overt act of negligence.”

 

On the facts, personal injury was foreseeable here; see [84]:

 

“it was open on the basis of Rankin’s own testimony to conclude that his negligence in leaving unattended vehicles unlocked with keys inside overnight could have led to reasonably foreseeable physical injury. This evidence is sufficient to support the trial judge’s conclusion that physical injury to J. was a reasonably foreseeable consequence of Rankin’s negligence.”

 

Brown J notes that the appeal was specifically confined to the duty of care issue, and he does not consider other questions that might have arisen under remoteness, for example.

 

I have to say that the arguments of the dissent as to foreseeability are quite compelling. But I am still not convinced that there should have been liability here.

I am fairly sure that this claim would have failed in Australia, because of the illegality the plaintiff was actively engaged in when he suffered his harm (which I think forms a part of the “policy based exclusions” that may apply to duty of care). In fact, the case seems very close to the High Court of Australia decision in Miller v Miller [2011] HCA 9 http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2011/9.html , with the exception that in that case the plaintiff was able to succeed because there was evidence that she withdrew from the “joint criminal enterprise” by seeking to leave the vehicle not long before the accident. That case, of course, was against the driver, not anyone more remotely connected, but the considerations there would mean no liability in this sort of case against a careless vehicle owner. (Interestingly, here the majority go out of their way to stress that the illegality on its own would not have precluded recovery under Canadian law- see paras [63]-[64].)

An Australian court would also, I think, have decided that a duty of care could not be owed where the harm resulted from the criminal act of a third party- see Modbury Triangle v Anzil (2000) 205 CLR 254.

Regards

Neil

 

 

 

 

 

 

NEIL FOSTER

Associate Professor, Newcastle Law School

Faculty of Business and Law

409 Hunter St

Newcastle

 

T: +61 2 49217430

E: neil.foster@newcastle.edu.au

 

Further details: http://www.newcastle.edu.au/profile/neil-foster

My publications: http://works.bepress.com/neil_foster/ , http://ssrn.com/author=504828 

Blog: https://lawandreligionaustralia.blog

 

 

The University of Newcastle (UoN)

University Drive

Callaghan NSW 2308

Australia

 

CRICOS Provider 00109J