It seems to me that the discussion of Rankin has veered off the main highway on to (admittedly interesting) sideroads.  One sideroad is whether the plaintiff’s participation in the illegality of stealing the car should disqualify him from recovery.  The Supreme Court of Canada has its own view of the illegality defence—one based on an article that I wrote almost 45 years ago—which it repeats in the judgment.  Others may reasonably have a different view of that defence.   The point is not central because the issue of duty of care would still arise even if the car thieves had crashed the car into someone else.   A second sideroad is whether one can be held directly  liable for the for a wrong done by a third party of full capacity (along with a sideroad to the sideroad dealing with the responsibility of minors).  I thought that this issue had been settled by Lord Reid in the Dorset Yacht case (and also by earlier cases such as Haynes v Harwood ) where it was said that if the act of the third party is the very kind of thing that ought to be anticipated, that act is not a defence but merely the way in which the plaintiff’s injury is connected to the defendant’s wrong.  So the central question is:  is the prospect of an injurious act by the car thief a reason for regarding the defendant’s act as negligent?  If it is, then the defendant is under a duty to anticipate it.

                How should this question be answered?  I would suggest that by making one’s car easy to steal, one always introduces an added element of risk to others, in comparison with  the risks posed by driving generally.  This is because people who steal cars are generally less responsible, both because responsible people don’t steal cars and because a person who steals a car has little incentive to be careful about what happens to the car.  And as Jason noted in his first post, they may also be unlicensed—that is, they may be outside the pool of persons who have demonstrated driving competence.  The introduction of this additional risk applies equally to minors and to bank robbers using a stolen car to hurriedly depart from the scene of a professional engagement.  The elements of negligence law—duty of care and remoteness—that deal with the relation between the risk created by the defendant’s conduct and the injury suffered by the plaintiff should reflect this introduction of additional risk by the defendant.   This seems to me to follow from Cardozo’s statement in Palsgraf that the risk to be perceived defines the duty to be obeyed.   Here the very risk that is a reason for thinking of the defendant’s conduct as negligent has materialized into injury.  In the absence of defences, there should be liability.

I agree with Donal that this might more properly have been dealt with as an issue of remoteness rather than duty, but the close connection between duty and remoteness—the former dealing with risk to whom and the latter with risk of what—means that the suggestion I am offering would not be significantly affected.

Best wishes to all,

Ernie

Ernest J Weinrib

University Professor and

Cecil A Wright Professor of Law

University of Toronto

My gut reaction is that this is not too remote and that one of the reasons why you should lock your car is to prevent young teenagers doing stupid things that might injure themselves or others. Perhaps this is influenced by being the father of a young teenager.

And I think it’s legitimate for the law to make at least some questions of responsibility all or nothing, as criminal lawyers frequently do, and as tort lawyers do when it comes to, for example, questions of legal cause (which, let’s face it, is what these cases are at least partly about, once we see past the chimera of ‘duty’). Apportionment and graded standards have their place, but they aren’t always the appropriate solution.  

Best

Donal

Why should the rule that you steal at your own risk be disapplied in the case of young people old enough to know the difference between right and wrong?

Andrew

Your position does not seem consistent with the graduated standard of care for children/young adults which recognizes that there is a process of development from birth to legal adulthood. Why would things be treated differently when considering the responsibility of non-adults in these types of cases? The person injured was 15 which may be old enough for the adult standard but probably not.  

 

Sincerely,

 

Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)

 

From: Donal Nolan <donal.nolan@law.ox.ac.uk>
Sent: May 15, 2018 7:55 AM
To: Jason W Neyers <jneyers@uwo.ca>
Cc: obligations@uwo.ca
Subject: RE: ODG: Rankin's Garage

 

I would say ‘no’ if the minor is legally responsible for their actions, which teenagers are (different if they are a young child, like the infant in Carmathenshire CC v Lewis [1955] AC 549).

 

And don’t forget that we still have a functioning illegality defence, which might well block such a claim regardless of duty.

 

Best

 

Donal

 

From: Jason W Neyers [mailto:jneyers@uwo.ca]
Sent: 15 May 2018 12:11
To: Donal Nolan
Cc: obligations@uwo.ca
Subject: RE: ODG: Rankin's Garage

 

Dear Donal:

 

Do owners never have a duty to secure things? What about a gun?  Could a minor not sue if they injured themselves with an improperly stowed firearm that they stole?

 

There seems to me to be no difference in principle between a car and a firearm.

 

Sincerely,

 

Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)

 

From: Donal Nolan <donal.nolan@law.ox.ac.uk>
Sent: Tuesday, May 15, 2018 3:58 AM
To: Lewis N Klar <lklar@ualberta.ca>; Jason W Neyers <jneyers@uwo.ca>
Cc: obligations@uwo.ca
Subject: Re: ODG: Rankin's Garage

 

I can see why Jason and Lewis are not exactly impressed with the majority’s reasoning, and I agree with Lewis about the conflation of duty and breach. But surely we need to step back a second here? In England (and, as Neil said, in Australia) this would certainly not be regarded as an uncontroversial or ‘garden variety’ negligence case, and rightly so in my view. For an analogous English case involving a bystander, where a duty of care was denied on the grounds that the defendants were not responsible for injury caused by the voluntary act of a third party who was a complete stranger to them, see Topp v London Country Bus [1993] 1 WLR 976. In particular, I do not see why ‘it could not have been said’ that ‘recognizing a duty in this type of case would be such an unwarranted extension of negligence law that it would be wrong in law to leave it to the jury or fact finder’ (indeed, that is essentially what the English CA did say in Topp, which was a stronger claim than this one, since the claimant had not been involved in the theft of the vehicle).

 

For me the only rotten thing about this case is that the courts below thought that someone could steal your car, get injured using it, and then claim compensation from you for not securing it properly. At least the SCC majority saw sense, even if the constraints of Anns/Cooper required some legal gymnastics to get to the right result.

 

all best

 

Donal

 

PS The difference between an eight-year-old and a fifteen-year-old is not a ‘little’ difference when it comes to questions of legal responsibility, as any criminal lawyer knows.

 

 

 

From: Lewis N Klar [mailto:lklar@ualberta.ca]
Sent: 14 May 2018 22:54
To: Jason W Neyers
Cc: obligations@uwo.ca
Subject: [Spam?] Re: ODG: Rankin's Garage

 

My main problem with the judgment in Rankin's Garage is the way this case was analyzed.

 

It was not a complicated negligence law case.  Despite its interesting,but far from unique facts, it was a garden variety negligence law case. 

 

Whether a duty  of care is owed to victims of a stolen car accident should have been uncontroversial. That should have been quite easy to establish.  What happened, however, somewhere along the line, is that the judges failed to distinguish between "reasonable foreseeability of injury to the plaintiff" in the context of the existence of duty and  reasonable foreseeabiliity of injury as a matter of breach of the duty (ie negligence) or perhaps remoteness.   The duty question is one of law, and does not call for a determination based on the evidence on the particular facts of individual cases. As the dissent correctly noted it is to be answered from a broad perspective. The judges should be asking whether recognizing a duty in this type of case would be such an unwarranted extension of negligence law that it would be wrong in law to leave it to the jury or fact finder. That could not have been said of this case. 

 

Now moving on to breach,  does the evidence adduced in this case, support a conclusion that the injury was reasonably foreseeable and the defendant was negligent in leaving the keys in the unlocked car? This is a question of fact. Evidently the trial judge and jury answered yes ... end of story.  Now if the Supreme Court felt that that was a perverse conclusion that no reasonable fact finder could have come up with, they were of course entitled to reverse it. But that is not what they said and not how they analyzed this matter.

 

One can find many judgments unfortunately where appellate courts usurp the fact finder's role by treating breach questions as duty questions. This is yet another example.

 

I apologize to you all for telling you what you already know,  but blame Jason. He asked what others thought  about the judgment.  And that is what I think.

 

Lewis

 

On Mon, May 14, 2018 at 1:54 PM, Jason W Neyers <jneyers@uwo.ca> wrote:

Just had a chance to read the decision today. The majority’s reasoning is laughably bad in my opinion (certified rotten as they would say on the Rotten Tomatoes movie review site). It is as if it were written by judges who live in an alternative universe where people are born at the age of 18 fully formed (cognitively and physically) and drive vehicles supervised by AI that can take over operation of the vehicle at the first hint of error. At one point in the judgment, they even say that cars are not dangerous. Unfortunately for them, that is not our universe. Cars are dangerous. That is why you are not allowed to drive one without a license. That is why we have speed limits and signal requirements and blood alcohol limits. That is why terrorists use them for attacks. Once one concedes that theft is reasonably foreseeable then that includes theft by minors (who live in this universe) and who experience shows are unlikely to be great drivers. It seems obvious to me that injuries to bystanders and minors are within the scope of the risks by which one would classify the leaving of the keys in an unlocked car as negligent.

 

What if the facts had been a little different, purged of the alcohol and illegality, for example, an 8-year-old had run over a toddler after climbing into the car at Rankin’s garage? My guess is that the majority of the court would have decided the case differently but on their reasoning, I would not see how this was possible.

 

I would be very interested in what others thought.

 

Sincerely,

 

 

Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)

 

From: Neil Foster <neil.foster@newcastle.edu.au>
Sent: May 13, 2018 10:27 PM
To: obligations@uwo.ca
Subject: ODG: SCC says Duty of Care not owed to victims of care theft

 

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

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