Skip to content

Client Update: Negligence: what is reasonably foreseeable?

Janet Clark and Sean Seviour

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.

SHARE

Archive

Search Archive


Search
Generic filters

 
 

The Winds of Change (Part 4): A Review of Rental and Royalty Regimes for Wind Development on Crown Lands: Options for Newfoundland and Labrador’s Economic Wind Policy

August 3, 2022

By: John Samms, Sadira Jan, Paul Kiley, Dave Randell, Alanna Waberski, and Jayna Green As we explained in our July 6, 2022 “Winds of Change” article, the announcement made by Minister Andrew Parsons on April…

Read More

Update on the Economic Mobility Program for Refugees (phase 2): The Economic Mobility Pathways Project (“EMPP”)

August 2, 2022

Included in Beyond the Border – July 2022 By Brittany Trafford; Fredericton   Brief Overview In an attempt to address the Canadian labour market shortages, the Economic Mobility Pathways Pilot (“EMPP”), was introduced in 2018.…

Read More

HR Best Practices When Employing Foreign Workers

July 29, 2022

Included in Beyond the Border – July 2022   By Brendan Sheridan; Halifax Canadian employers are increasingly relying on foreign workers to fill gaps in the labour market and to provide specialized skills. In 2020,…

Read More

Beneficial Ownership Registry Rules Come to New Brunswick

July 28, 2022

By Alanna Waberski, Graham Haynes and Maria Cummings On June 10, 2022, the Government of New Brunswick proclaimed into force Bill 95, which amends the Business Corporations Act (New Brunswick) (the “NBBCA”) to require corporations…

Read More

Recent trends in defined benefits pension plans – a review of public sector plans

July 28, 2022

Included in Discovery: Atlantic Education & the Law – Issue 10 Hannah Brison and Dante Manna Increased financial volatility caused by recent global events has caused public sector defined benefit (“DB”) pension plans to reflect…

Read More

Atlantic Canada offers immigration pathways for workers in Trucking, Health, Construction and Food Service Industries

July 27, 2022

Included in Beyond the Border – July 2022 By Sara Espinal Henao; Halifax It is a well-known fact that Atlantic Canada needs workers. In the aftermath of COVID-19, regional employers in the trucking, health, construction,…

Read More

The winds of change (part 3): Newfoundland and Labrador releases wind energy guidelines

July 27, 2022

By: John Samms, Matthew Craig, Dave Randell,  and Jayna Green On July 26, 2022 the Province of Newfoundland and Labrador (the “Province”) released “Guidelines: Nominating Crown Lands for Wind Energy Projects” (the “Guidelines”). Described as…

Read More

Trends in tenure and promotion for unionized employers

July 25, 2022

Included in Discovery: Atlantic Education & the Law – Issue 10 By Kate Profit    Tenure is a well known and often discussed topic amongst academics. Viewed by unions as a cornerstone of modern universities,…

Read More

Car-Sharing Comes to PEI – Insurance Implications

July 22, 2022

Dalton McGuinty Jr. and Kegan Bradley On May 17th, 2022, Canada’s largest car-sharing company, Turo, brought their platform to Prince Edward Island. The service allows car owners (lessors) to lend out their vehicles to drivers…

Read More

Federal Government announces significant investments in Nova Scotian clean energy initiatives

July 21, 2022

Nancy Rubin & Tiegan Scott On July 21, 2022, the Federal government announced a new investment of up to $255 million for clean energy initiatives in Nova Scotia. The funds will be allocated in two…

Read More

Search Archive


Search
Generic filters

Scroll To Top