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.
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