On behalf of Allan Beever:

 

Dear all

 

Some overly long thoughts surrounding this case.

 

I would like to be able to support Rob’s approach, as it would settle things neatly, but I don’t think that I can. He says:

 

Here the wrong was being negligently injured by another's careless driving. Q: Who did that? A: The driver of the vehicle.

 

Unfortunately, I think that this begs the question. Certainly, Rob has identified a wrong, but why is this the wrong, ie the only wrong? Why isn’t there also another wrong of leaving a car in an unsecured and, in the circumstances, dangerous condition (dangerous in the sense that leaving a gun on my front lawn would be dangerous)?

 

In general, I think that we (or most of us) have a very strong cultural bias (I say cultural, but if someone tells me that there is also a biological basis for it, I’d be happy to accept) in favour of thinking that there are single culprits for wrongs – even single causes of events (that has to be biological I guess) – but there is really no justification for thinking this way. In this case, we might think that C was the most serious wrongdoer – the wrongdoer, if you like – but that in itself says nothing – literally nothing – about whether R was also a wrongdoer.

 

And as Rob quite rightly says, this kind of thinking is inconsistent with Dorset Yacht. Weren’t the borstal boys “the” wrongdoers in that case? Let me cheat a little:

 

[I]t is said that [J] must fail because there is a general principle that no person can be responsible for the acts of another who is not his servant or acting on his behalf. But here the ground of liability is not responsibility for the acts of the [driver, C]: it is liability for damage caused by the carelessness of these [employees of R] that their carelessness would probably result in [joyriders] causing damage of this kind. So the question is really one of remoteness of damage.

 

(Of course, much here might depend on what you take ‘probably’ to mean.)

 

If we put the law entirely aside, it would seem to me quite wrong to say that R in this case bore no moral responsibility whatsoever for the events that occurred. Of course, I am not saying that R was as to blame as J or C were, or even as C’s mother was.

 

It may help to think of it this way. In the light of these events, I would certainly hope that in future R would make sure that keys were not left in cars again. If R didn’t take this precaution, then I would think that that would be wrong. But if I think that, then if I also think that these events were at the time a reasonably foreseeable consequence of R’s leaving the keys in the car etc, then aren’t I compelled to come to the same conclusion: that R was to some extent in the wrong?

 

That brings me to another point. Don’t the majority in this case find for R on the ground that the events were unforeseeable? Don’t they say that, though it may have been foreseeable that an adult would have stolen the car it would not be foreseeable, or there wasn’t sufficient evidence to conclude that it was foreseeable, that a minor would steal the car? And that a minor would take the car for a joyride? Isn’t this odd? As Jason says, this seems rather otherworldly. Kids do this all the time. It is one of the significant problems of modern policing. It seems that this was even more true of the area in which these events took place. Can we agree that, even if we approve of the result in the case, we cannot accept the reasoning of the majority? Perhaps I am being unfair, but it seems to me that the majority have either lost touch with a reality of modern life or are just not telling the truth. I suspect the latter. Should we really be comfortable with this, as long as we get the result we are after?

 

Another thing: I am struck by the fact that at least many of the Canadian contributors to this discussion have argued along the following lines. “The law in Canada says x, y and z. According to x, y and z, the result should have been r. The majority got to not-r by doing something illegitimate.” Some commentators, I am thinking especially of Lewis, have even disclaimed any personal commitment to r. They just think that r is what the law in Canada requires. Am I being unfair when I say that one line of response to this has been to say something that could be paraphrased as “Well who cares about that? Just get the right result.” I don’t detect much legal analysis in these replies (I assume that citation of case law, especially the case law of a foreign jurisdiction, is not itself legal analysis). But isn’t this something that we should care about?

 

It might also be worth while to identify precisely why you think that J should not be able to recover (if that is what you do think). Is it because J broke the law in stealing the car. If so, then isn’t this intuition best reflected in the illegality defence rather than in the way that it was reflected in this case? Shouldn’t we then say that the majority were wrong, though they got right result rather than just siding with them? My own view is that this “J is an outlaw” response to the case is likely to explain much of the antipathy to J recovering, but for reasons I won’t repeat here my view is that this position is unjustified. Perhaps the intuition, though, is that J should not be able to sue R when J consciously took the risk that materialised in his injury. This is to say that J was volens – that R created a risk but that J voluntarily ‘took on’ that same risk when deciding to steal a car from R. Whether you think that will depend on what you make of his age, etc. Again, though, this doesn’t really support the majority. Perhaps you think that C (or J himself) was so much more responsible for J’s injury than R was that R should not have to pay damages at all; in which case in principle this could be reflected properly in the contribution (or contributory negligence) rules, at least if they (as I see it) were approached more rationally than they are at present. Again, this is not the majority’s view. If you are against J here for a different reason, I’d be interested to hear what it might be.

 

And one last thing: It might be worth reflecting on the kind of disagreement that we are seeing here. We have distinguished commentators on the law unable to agree on pretty basic questions such as whether this was an entirely ordinary kind of case or whether it raised exceptional issues. Some say that finding liability would involve an outrageous extension of the law of negligence. Others say (including the dissenters) that it would involve no extension at all. My own view is that the cases that impose rules that restrict recover are (to my mind) pretty clearly cutting back on liability rather than failing to extend it. Some think that there should be liability in this case. Others that it is ‘obvious’ that there should not; that this is even a simple and clear case in which anyone could see that there should be no liability. No doubt about it.

 

My question is: What are we actually arguing about here? Anything at all? If scholars who have dedicated themselves to the study of this area of the law can be so divided on these really rather basic questions, perhaps we have to admit that – at least if we are talking about today’s positive law of negligence –  the law has become so empty that almost anything can be said about it. If the law’s job is to guide practical reason, then this area of the law seems to be on strike.

 

Just to clarify, I am not saying that the moral question raised in the case was an easy one. I would say that it is a difficult one as it tests the boundaries of our conceptions of responsibility, but that matter is separate. It might be worth reflecting on the fact that here in NZ (and I imagine elsewhere), there is considerable controversy over high speed police chases that end in kids who have stolen cars being killed. One response to this kind of think is to say “Well, it’s the bloody kids’ fault. Shouldn’t have stolen the car”. I have to say that I am proud not to belong to that class of thinker. It is also notable that that isn’t the police’s view. They clearly think that they do have an obligation to care for the safety of the joyrider. Quite right too. Also, there are of course other ways of looking at tort law than focusing on today’s positive ‘law’, but that is another matter too.

 

All the best

Allan

 

 

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