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McGill Faculty of Law: Extra-Contractual Obligations/Torts: Prof. Lara Khoury, 2002-03/Summary by Derek McKee

got into a fight with a group of four other clients. The bouncer, owner, and some other people ejected the group of four through the back door. They then proceeded to eject Murphy and Cairns through the front door. The group of four immediately came around to the front and savagely beat up Murphy and Cairns.


Did the tavern owner owe the plaintiffs any duty? What was the ambit of that duty?


Yes, the tavern owner owed the plaintiffs a duty not to expose them to unreasonable risk of harm.


Zuber J based his decision on Jordan House v. Menow and Dunn v. Dominion Atlantic Railway; he found that the duty articulated in these cases should not be confined to intoxicated people. Zuber J also emphasized that the burden of precautions (keeping Murphy and Cairns inside until the group of four had left, or calling a cab for them), would have been very small.

W. Van Gerven et al., Tort Law: Scope of Protection, (1999) at 78 (CB2p28)

Van Gerven seems to be implying that the common law and civil law are not that different when it comes to a positive duty to act. They both find such a duty in certain situations:

when there is a special relationship between the plaintiff and the defendant

when the defendant created a source of danger to his/her own economic benefit

However, French law, unlike English or German law, imposes a “general” duty to act to help a person in danger or to prevent a violent crime. In English or German law, failure to act would lead to liability only where the law specifically provides.

Whether such a duty is imposed in various situations may depend on the “burden of precations” or the degree of effort it would have required in order to act.


To encourage rescuers to act, both common law and civil law have limited rescuers’ liability.

In Quebec, this is (a.1471)

Most common law provinces (including Ontario) have legislation limiting rescuers’ liability; however some only limit it for medical professionals.

In common law, the rescuer has a duty of care from the moment she starts rescuing.

In all of these provinces, liability is limited to gross negligence. Gross negligence includes:

intentional negligence

total disregard for others’ safety

Delineating the Duty of Care

“Duty of care” is an obligation to act with reasonable care toward someone else.

It is used as a limiting device, in order to make liability impossible in some circumstances.

The loss must lie where it falls unless there is good reason to shift it to someone else; the loss can only be shifted when the relationship is sufficient. This is a question of law, not of fact.

Duty of care is a mechanism of social control: it is not purely legal—it forces judges to consider policy questions.

Duty of care has been used to limit (although not necessarily exclude) liability in cases such as:

failure to act

psychiatric injury

pure economic loss

negligence of public authorities

Canadian courts have taken an expansive view of duty of care, and have not used it to limit liability as much as have courts in other common law countries.

The “neighbour principle” in Donoghue v. Stevenson contains two elements:

1. reasonable foreseeability (“contemplation”)

2. proximity (“close and direct relationship”)

One interpretation holds that these are two separate concepts/requirments.

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