Client Update: Negligence: what is reasonably foreseeable?
A recent decision from the Supreme Court of Canada clarifies determination of what is “reasonably foreseeable”: Rankin (Rankin’s Garage & Sales) v J.J., 2018 SCC 19.
The case involved two teenagers under the influence of alcohol and marijuana who, while looking for valuables to steal from vehicles, found a vehicle unlocked with the keys in its ashtray at Rankin’s Garage & Sales. They took the vehicle and were on their way to pick up a friend when they were involved in an accident that left one of the teenagers with catastrophic brain injury. At trial and appeal, the garage was held 37% liable. The Supreme Court of Canada reversed that finding in a 7-2 decision, holding that the evidence did not establish a duty of care owed by the garage; the evidence did not establish that the risk of harm was reasonably foreseeable.
The Court reiterated the general principle that “parties owe a duty of care to those whom they ought reasonably to have in contemplation as being at risk when they act”.
Reasonable foreseeability is to be determined objectively: what would have been known by someone with the defendant’s knowledge and experience? This cannot be based on hindsight (i.e. – knowing the harm that has in fact occurred), but instead must be determined at the time of the alleged wrongdoing. There must be facts in evidence to support a finding that someone in the defendant’s position reasonably should have foreseen risk of the type of harm that subsequently took place to a person in the plaintiff’s situation. The evidence in this case established that the risk of theft was foreseeable by the garage, but did not establish foreseeability of the risk of personal injury caused by the unsafe operation of a stolen vehicle:
“…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.”1
What could this mean for you?
In the context of a stolen vehicle, this decision focuses liability on those most directly involved rather than sharing liability among all potential sources of financial compensation. More broadly, the decision provides clarification for the law of negligence. An individual or business should not be liable for harm they would not reasonably have foreseen. Insurers and others seeking contribution for the losses claimed need evidence to establish knowledge of the risk of harm.
This recent decision reinforces the Supreme Court of Canada’s decision in Mustapha v Culligan of Canada Ltd., 2008 SCC 27, where a man suffered extreme mental illness after seeing a dead fly in a large bottle of water. In that case, the Court was focused on remoteness, but touched on reasonable foreseeability stating that “unusual or extreme reactions to events caused by negligence are imaginable but not reasonably foreseeable”.
Possibility is not foreseeability.
1 Rankin (Rankin’s Garage & Sales) v J.J., 2018 SCC 19, at para 34.
Archive
By Jim Cruikshank, Graham Haynes, and Dave Randell On November 3, 2022, the Honourable Chrystia Freeland delivered the Federal Government’s Fall Economic Statement (“FES”). The FES included a number of tax related announcements, including further…
Read MoreBy Stephen Penney, Joe Thorne, and Giles Ayers A new decision from the Supreme Court of Canada, Annapolis Group Inc. v. Halifax Regional Municipality, 2022 SCC 36 (“Annapolis”), has changed the law of constructive expropriation across the…
Read MoreAs part our presenting sponsorship of the Halifax Chamber of Commerce’s Annual Fall Dinner, we are pleased to present a series of thought leadership articles highlighting the dinner’s themes of immigration, recruitment, and labour market…
Read MoreAs part our presenting sponsorship of the Halifax Chamber of Commerce’s Annual Fall Dinner, we are pleased to present a series of thought leadership articles highlighting the dinner’s themes of immigration, recruitment, and labour market…
Read MoreBy Sara Espinal Henao Since its initial launch in January 2015, Express Entry has been a pillar of Canada’s immigration system. Recently passed amendments to the Immigration and Refugee Protection Act (IRPA) promise to drive…
Read MoreBy Brittany Trafford It is no secret that employers in Atlantic Canada are struggling to fill labour gaps. In June 2019 the Atlantic Canada Opportunities Agency (ACOA) published a report[1] indicating that the overall labour…
Read MoreThis article was updated on May 4, 2023. By Brendan Sheridan The Government of Canada has recently taken steps to further protect foreign workers employed in Canada. These efforts by the government have, in some…
Read MoreSadira Jan, Dave Randell, and James Gamblin On October 17, 2022, the Government of Nova Scotia tabled bills that would amend four pieces of legislation in support of future green hydrogen development. The intended impacts…
Read MoreBy Ruth Trask and Josh Merrigan Pay equity is an increasing focus for governments and advocates in the employment world, which means that employers must also pay attention. The Government of Newfoundland and Labrador has…
Read MoreBy Kathleen Leighton Canada is facing considerable labour shortages resulting from a myriad of factors including its aging population and declining birth rates. As a result, our immigration strategy going forward must help drive the…
Read More