We have been studying the law of negligence in my first year tort class here at Western Law. In fact, it has, quite unexpectedly, become one of my favourite classes. To this I credit the quality of instruction, though the subject matter certainly is thought provoking. So much so, that I have become rather disturbed by the Canadian, and other Commonwealth countries’, approach to the subject. Even in an apparently clear case, such as Cooper v. Hobart, the Supreme Court of Canada feels compelled to expound the public policy reasons for their decision. This, I think, misses the point and, worse yet, overreaches.
Inconsistent Theory, Uncertain Policy
As my professor would explain it, negligence, properly understood, is still very much within the mould of Donoghue v. Stevenson. When it comes to the duty of care proximity serves to limit liability. The question is: did the plaintiff share a relationship with the defendant such that the defendant should have reasonably foreseen that the plaintiff might be among those affected by her actions? In this respect, the defendant’s liability is delimited by a circle or series of circles with her at the centre. If the plaintiff falls within the scope of this proximity (within the circle), then we can say a duty was owed and you may proceed to the next step of the negligence analysis. If not, then there was no duty and, therefore, no right upon which to sue.
That is, if we take my professor’s view. The courts, at least on the basis of both my (admittedly limited) experience and the authority of my professor, often adopt a different approach. The first step is to address foreseeability and proximity with respect to the particular plaintiff(s) and defendant(s). If both they both obtain, then the court attempts to fit the case into an existing category of negligence. Where they are unable to do so, they turn to public policy to assess whether or not the case under consideration should give rise to a new case of action. In this determination they will consider if there are any reasons of public policy that might prevent them from creating such a new cause of action. As the term may suggest, public policy can include just about anything of concern to the public, be it the precedent set or broader social concerns.
Coherence Breeds Certainty
And what’s wrong with that? Well, in a word, everything. On the relationship-based view of negligence liability turns on the issues in the case. Sounds simple, but that is what private law is meant to be about or, at least, so I’m told. If it were a question of general concern, then it would likely be an exercise in public law.
Fine, but perhaps the court should take the consequences of its decision into account. After all, if the Supreme Court of Canada makes a pronouncement on a particular private law dispute it will certainly have a very public effect. This concern should not be easily dismissed. It does not, however, grant the courts carte blanche. While surely there would be some concern if, in the course of a judgment, the court imputed unlimited liability to an unlimited class of people. The concept of proximity, however, seems to address that very concern.
I do not owe you a duty and, therefore, I risk no liability if you are not, as Lord Atkin put it, my ‘neighbour.’ Now, some actors and some actions may be so large and pervasive that a great many people become their neighbours, but this, in and of itself, does not really present a problem. Indeed, that is the beauty of coherency: all actions have consequences that are roughly proportional to their scope. This perturbs some, like the Supreme Court of Canada, so much that they at once recognize the existence of liability and dismiss it for reasons of ‘public policy.’
P-Words Belong to Parliament
This approach raises its own questions. First, why do we need to limit liability at all? Granted, liability ceases to make sense if it captures all actions: if you are liable for everything, then, in some sense, you are liable for nothing. I don’t see, however, that such consequences are the realistic outcome of the application of Donoghue v. Stevenson. It seems rather arbitrary to proclaim that you, massive business enterprise, are entitled to all the benefits that accrue to your size while simultaneously bearing only some of the concomitant risks. If the duties and rights are there, then it would seem no answer to suggest that ‘public policy,’ whatever that means, somehow extinguishes them.
Second, and perhaps more importantly, ‘public’ questions should be left to representative institutions. This is not to say that the courts cannot make evaluative decisions. In fact, that is largely what the Charter requires them to do. Similarly, whenever the courts are called to make decision upon equitable grounds they often have no choice but to evaluate each party’s actions. The irony, then, is that by citing ‘public policy’ the courts set about extinguishing rights that are otherwise admittedly valid. The Charter calls for balancing, tort law, as far as I am aware, does not.
If the logical application of liability would lead to ‘publically’ undesirable outcomes, then that is a question for Parliament. In this respect, the courts seem to have it backwards. They will not extend liability where the doctrine demands it, but they will read into s. 7 of the Charter a richer definition of ‘fundamental justice’ than was clearly ever intended. If the application of ‘public policy’ is from a genuine concern with public welfare, then leave that essentially contestable concern to those who are competent do deal with it. That was the approach of the courts with nuisance in the former half of the 20th century. I don’t see why it should be any different today.
