The Test of Foreseeability

Foreseeability is the leading test to determine the proximate cause in tort cases. The foreseeability test is used to determine whether the person causing the injury should have reasonably foreseen the consequences of the actions leading to the loss or injury. For negligence to be a proximate cause, it is necessary to prove that a reasonably prudent person under similar circumstances would have anticipated that injury would probably result from the negligent acts.

In Coleiro v. Premier Fitness Clubs, 2010, the court held that assault by one patron of the fitness club on another is not reasonably foreseeable and hence dismissed the action against the fitness club and granted the motion for summary judgment.

In Omotayo v. Da Costa, 2018, a similar decision was reached when one condo board member assaulted another in a condo board meeting. The Ontario Superior Court of Justice held that the assault was not foreseeable and dismissed the claim against the condo corporation, granting the motion for summary judgment.

In Rankin (Rankin’s Garage & Sales) v. J.J., 2018, two friends, both minors, made their way to a commercial car garage that was not secured after they had been smoking marijuana and drinking. They stole a vehicle from the unlocked garage after finding its keys in the car ashtray. Without a driver’s licence or any previous driving experience, one of the boys drove the car (with the other boy in the passenger seat) out of the garage, and the car crashed on the highway. The boy in the passenger seat suffered a catastrophic brain injury. An action was brought by the boy who suffered the injury against, inter alia, the car garage in negligence. At trial, it was held that the garage owed a duty of care to the boy. However, the Supreme Court of Canada dismissed the claim against the garage. Presented below are a few points that were discussed by the Supreme Court of Canada in reaching this interesting, but not unanimous conclusion:

It is not necessary to consider whether illegal conduct could sever the proximate relationship between the parties or negate a prima facie duty of care. However, the notion that illegal or immoral conduct by a plaintiff precludes the existence of a duty of care has consistently been rejected by the Court. Whether the personal injury caused by unsafe driving of the stolen car is suffered by the thief or a third party makes no analytical difference to the duty of care analysis. Both are reasonably foreseeable when circumstances connect the theft of the car to the unsafe operation of the stolen vehicle.

While the risk of theft was reasonably foreseeable, the evidence did not establish that it was foreseeable that someone could be injured by the stolen vehicle.

A business will only owe a duty to someone who is injured following the theft of a vehicle when, in addition to theft, the unsafe operation of the stolen vehicle was reasonably foreseeable.

There is no clear guidance in Canadian case law on whether a business owes a duty of care to someone who is injured following the theft of a vehicle from its premises. The lower court jurisprudence is divided and there is no consensus.

Here, there is nothing about the circumstances of cars stored in a garage lot after hours in the main intersection of this town that was intended or known to attract minors.

To summarize, the evidence did not provide specific circumstances to make it reasonably foreseeable that the stolen car might be driven in a way that would cause personal injury. The evidence did not, for example, establish that the risk of theft included the risk of theft by minors.

… the plaintiff did not satisfy the onus to establish that the defendant ought to have contemplated the risk of personal injury when considering its security practices. The inferential chain of reasoning was too weak to support the establishment of reasonable foreseeability.

While common sense can play a useful role in assessing reasonable foreseeability, it is not enough, on its own, to ground the recognition of a new duty of care in this case. Aside from evidence that could establish a risk of theft in general, there was nothing else to connect the risk of theft of the car to the risk of someone being physically injured. For example, Rankin’s Garage had been in operation for many years and no evidence was presented to suggest that there was ever a risk of theft by minors at any point in its history.

This is not to say that a duty of care will never exist when a car is stolen from a commercial establishment and involved in an accident. Another plaintiff may establish that circumstances were such that the business ought to have foreseen the risk of personal injury.

Above are only a few examples of some of the interesting caselaw discussed on the “Test of Foreseeability” in my soon to be published book (Understanding the Basics of Liability Claims – An Adjuster’s Perspective). Stay Tuned!

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