McGill Faculty of Law: Extra-Contractual Obligations/Torts: Prof. Lara Khoury, 2002-03/Summary by Derek McKee
Duty of care is a kind of preliminary filter that one must pass before getting into liability.
This concept has been used as a mechanism of social control. Courts can make policy decisions over whether they want to impose a duty of care in certain situations.
In civil law, there is a general duty to avoid causing injury to “another” (anyone at all): “Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstances, usage, or law, so as not to cause injury to another.” (a.1457)
The civil law makes no distinction between primary and secondary victims.
The common law “duty of care” is preoccupied with relationships.
The relationship doesn’t matter in determining fault: this has more to the with the behaviour of the defendant as compared to a social norm.
Nor does the relationship matter to injury: this focuses on the particular situation of the victim.
“Duty of care” has been expanded beyond the doctrine of reasonable foreseeability.
Sometimes courts rule in the “best interest of society”: by doing so, they set aside legal “principle” for policy reasons.
Courts have left some areas outside the law.
Courts have balanced the costs and benefits of recognizing duty of care in different situations. (For example, with pure economic loss and psychiatric damage, courts have used limits on duty of care as a way of making policy decisions. It has little to do with reasonable foreseeability.)
Fault is a concept that arises in three areas of civil liability:
liability for one’s own deeds
liability for the deeds of others
liability for the deeds of things (including animals)
Both systems distinguish between liability based on fault and liability based on risk (i.e., without fault).
Liability based on risk developed from the growth of industry, the development of insurance, and the general increase in collective activities.
The theory here is that a defendant can be liable for having created a risk even though she or he was not at fault.
One reason is the belief that if you profit from creating a risk, you should be responsible. (e.g., strict liability for pollution)
Liability based on risk has not been adopted by common law or civil law in their general regimes, only in specialized regimes.
Fault is often hard to define. It is a difficult requirement in many cases. There is a whole spectrum of behaviour ranging from intentional harm to simple negligence.
Liability for One’s Own Wrongdoing
The Reasonable Person
Courts have devised the “reasonable person” test (transsystemic):
1. Would a reasonable person have foreseen that her activity would cause the injury?
2. What kinds of precautions would a reasonable person have taken?
This test is applied in abstracto, i.e., “objectively,” without regard for the characteristics of the defendant.
L’Oeuvre des terrains de jeux de Québec v. Cannon (1940), 69 B.R. 112. (CB1p181)
The plaintiff’s daughter, Jeanne Cannon (aged seven years minus four days), slipped and injured herself while sliding on an icy embankment. The slope was adjacent to a skating rink maintained by the L’Oeuvre, a non-profit community organization. Jeanne Cannon was playing with her sister; no adults were present at the time of the mishap.
Was L’Oeuvre at fault for not preventing the girls from sliding on its icy slope?
No; the appeal was allowed.