I think the answer to cases like this depends upon how you understand liability for negligence. I am minded to agree with Donal but I find it a difficult question.

So, one way is to think in terms of a liability formula (as I was taught). So the 'tort of negligence' (sic) involves 5 questions

1. Is there a duty of care? This is a control device. Into this question are addressed issues concerned with denying liability, that are nothing to do with "duties" properly understood at all, but which have nowhere else to go. So, will holding the defendant liable give rise to indeterminate liability in terms of liability and amount? Should claims against the police be excluded for fear they will be excessively 'diligent' in pursuit of their duties? And so on. Where the allegation is that the defendant has by his positive conduct caused the plaintiff foreseeable physical injury no "duty" issue usually arises. On this approach, the defence of illegality (which is nothing to do with whether a duty properly so-called is owing) is sometimes bundled into the 'duty of care' issue.
   
2.  Has the duty been breached? Breach is assessed in terms of the forseeable costs and benefits in aggregate terms.
3. Has the breach caused the claimant loss? A "but for" test is generally applied, but it is then thought that cases of overdetermination require us to abandon what causation means in every day language and instead define causation to mean something else.
4. Is the loss too remote? This is thought to generally be a question of reasonable foreseeability again, with some odd rules about eggshell skulls.
5. Is there a defence? (Contrib negligence etc).

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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