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Newsletters 2008 > August 2008

In this issue:
1. Firm News
2. Boat Rental Company Liable for Failure to Instruct
3. The Unforeseeable Vandal: Elements of Negligence

1. Firm News

  • Fernandes Hearn LLP is pleased to announce that effective September 1, 2008 John Phillips, Neil Gill and Fred Fischer will be joining the firm. Their arrival promises to add further depth and areas of specialty to the firm.

    John Phillips joins the firm as Counsel. John is a litigation lawyer, called to the bars of Ontario and Alberta. John is well experienced in civil litigation matters, having litigated class actions, product liability and insurance disputes. John has appeared before numerous tribunals and has extensive experience in commercial arbitrations.

    Neil Gill also joins the firm as Counsel. Also a litigation lawyer, Neil has extensive commercial and insurance litigation experience. Neil acts for clients in the transportation and leisure industries often dealing with complex mass contract and tort disputes.

    Fred Fischer joins the firm as an Associate lawyer. Fred has a broad commercial litigation practice encompassing contract disputes, employment matters, class actions and jurisdictional disputes.

  • Kim Stoll will be speaking at the Canadian Transport Lawyers Association Annual meeting in Quebec City on September 26th, 2008. Gordon Hearn will be the moderator for the panel presentation, titled "Getting to the Bottom of It: Official Investigations and Data Recorded Evidence".

  • Gordon Hearn will be speaking at the 22nd Annual Conference on Transportation Innovation and Cost Savings at Richmond Hill, Ontario on September 24, 2008. Gordon will be speaking on "Multimodalism and Related Contractual Problems: The Canadian Experience".

  • Rui Fernandes and Gordon Hearn will be representing the firm at the CMI conference in Athens in October. The Comite Maritime International, which was formally established in 1897, is the oldest international organization in the maritime law field. The CMI holds a conference for maritime lawyers from around the world every four years.

  • Rui Fernandes will be representing the firm at the 5th International Marine Claims Conference to be held in Dublin also in October. This year's conference is entitled "Synergy or Antagonism."



2. Boat Rental Company Liable for Failure to Instruct

Wozniak v. Alexander, 2008 ABQB 430 (Court of Queen's Bench of Alberta)

In the late afternoon of July 23, 2004 the Plaintiff, seventeen year old Megan Wozniak was seriously injured when her foot was nearly severed in two by the propeller of an outboard motor. She was one of a group of six people using a power boat on Sylvan Lake. The boat had been rented by the Defendant, Keith Alexander from the Defendant, Three Boys Toys Inc., and was being driven at the time by the Defendant, Alex Majouga.

While operating the vessel Mr. Majouga applied too much throttle to the vessel which was towing two girls in a tube, one of which was the Plaintiff Megan Wozniak. The trial judge described the accident event as follows:

Majouga applied more throttle and quickly realized that the boat was doing a "doughnut". Clearly, he had applied too much rudder and too much throttle such that the boat turned close to 180 degrees and was heading back towards the tube containing Wozniak and Graham.

[17] At first the girls thought he was joking and trying to scare them, but soon it became apparent that he was not going to stop and the girls attempted to jump off.
[18] The agreed statement of facts contains the following: "Majouga started to steer the boat and went into shock and froze." While Majouga did concede that he froze, I do not accept that he did not attempt to react to the emergency. I accept his evidence on this point. He thought about what to do and it occurred to him to put the boat into neutral but he thought it would be more difficult to steer and wasn't sure if the propeller would stop. He also considered turning off the boat but again he wasn't sure of how that would affect the propeller and the ability to control the boat. The course of action he decided upon was to steer away from the tube and thought he was succeeding but the girls jumped in opposite directions and unfortunately for her, Wozniak jumped in the direction that he had chosen to try to avoid the tube.
[19] The propeller hit Wozniak's right foot and she screamed, although she had no idea how serious her injury was at the time. Alexander pushed Majouga out of the driver's seat and turned off the engine.

The main issues before the court were set out by the trial judge as:

1. Is there a duty of care owed by a boat rental company to persons using the lake such as the Plaintiffs in this case?
2. If so, what is it and was it met?
3. If not, did that failure "materially contribute to" or "cause" the injury?

Three Boys Toys Inc. asked Mr. Alexander to sign a standard form and then provided an introduction to the vessel

At the time of this incident the Three Boys had been operating a business of boat rentals including seadoos and power boats on Sylvan Lake for more than five years. Three Boys did not seriously contest that it owed a duty of care to users of its equipment and others who face a foreseeable and unreasonable risk of harm as a result of inappropriate operation of Three Boys' equipment

The real issue was whether the standard of care was met.

A navigation and operation expert was called to testify by the Plaintiff. It was his view was that Majouga's inexperience and lack of knowledge as to how to operate the boat in the particular situation that gave rise to the accident and his inability to respond appropriately to the situation in which he found himself contributed to the accident. He was also of the view that while Three Boys appeared to have a very complete Safety and Operations Manual and Boat Operating Guide as well as a Rental Boat Safety Checklist as required by the applicable regulations, its employees did not follow procedure adequately and this also contributed to the incident in question. The trial judge agreed. The judge found that Three Boys did not take adequate steps to determine the experience level of those whom they could reasonably foresee would be operating the vessel. Nor did Three Boys provide adequate instruction given the low level of their experience.

It was company policy to have each employee familiar with and sign off on the manual. The manual, in several places, emphasized the importance of not operating the motor when close to people in the water and it was clear that all operators of the boat had to be familiar with where and how to operate the ignition cut off (kill) switch and must understand the operation of the throttle and the gear shift lever.

The trial judge commented:

As I understand Three Boys' policy as it is contained in the manual, had it been implemented, this unfortunate accident would not have occurred because Majouga would have been equipped with knowledge which would have enabled him to either avoid the emergency or have stopped the propeller such that, in the words of Mr. Vollmer [the expert], the risk of the propeller injuring Wozniak would have been "dramatically" reduced. She may have been exposed to the risk of a blunt trauma but the consequences of that risk were much less serious.

Also, it is clear from reading the Boating Safety Rules and the other material in the manual that it was the policy of Three Boys to demonstrate the use of all safety equipment including the engine kill switch. The operator is to receive sufficient instruction in the proper care and use of the boat and its safety equipment so that they can safely operate it and be comfortable with it. That training can only take place at dockside and by demonstrating and instructing on the actual boat to be used. Unfortunately, the customer is asked to sign off that he or she has received this instruction before ever getting to dockside.

The fact the Mr. Majouga was licensed under the Competency of Operators of Pleasure Craft Regulations passed in 1999 under the Canada Shipping Act did not assist the defendants.

Three Boys Toys Inc. argued that that Majouga "froze" and this could not have been anticipated by Three Boys or avoided with instruction. In response to this argument the trial judge stated:

While Majouga concedes that he froze he did so because he was not sure of the correct course of action. In my view, this was a direct result of not having been told that in such an emergency he should kill the engine.

The judge found the Defendant Majouga and Three Boys Toys Inc. each 50 percent responsible. The Plaintiff's claim against the Defendant Alexander is dismissed.

Rui Fernandes



3. The Unforeseeable Vandal: Can You be Held Liable for Acts of a Vandal Causing Harm to Third Parties?

The recent case of Garratt et al v. Orillia Power Distribution Corporation (2008) 90 O.R. (3d) 161 [Ont. C.A.] features a very helpful review of the elements of the tort of 'negligence'.

The Facts

The plaintiff, Lynda Garratt, was unsuspecting while driving her car under the Memorial Avenue overpass on Highway 11. Without warning, a construction appliance known as a 'spider rope' dropped from the overpass, hitting the hood of her car causing an accident as a result of which she sustained injury. Stopping her car, she noticed the rope disappear to an area above the overpass where she saw a lone man standing.

At the time, the defendant utility company had dispatched a work crew to perform electrical installation work along the overpass. This involved the stringing of new electrical circuits which in turn called for the use of such 'spider ropes'. Spider ropes are used by linemen to pull conductors from one hydro pole to the next.

The day in question was a regular work day for this crew on the project. The project had been underway for some three months by this point. The project foreman and two crew linemen each had more than 20 years experience in hydro-electrical installations.

In preparation for a lunch break away from the site, a crew member fixed the spider rope in question to a hydro pole by means of a bowline knot. The entire crew vacated the work site. It was during this lunch break that the accident occurred. The person observed by Ms. Garratt was not a member of the crew. He was a stranger involved in an act of vandalism.

The Judgment at Trial

The plaintiff sued the defendant in negligence. The trial judge found the defendant liable in negligence, for the negligence of its crew members employees on the basis that had they used some alternative means of securing the spider rope the tampering by the vandal would have been deterred and the accident would not have happened. The judge also found that the defendant failed to meet the required 'standard of care' in light of the fact that there existed a 'rule book' by an association [of whom the defendant was a member] setting out minimum standards of job site safety which standards were not followed in the securement of the site for the lunch break.

The Appeal - and a Lesson in Tort Law

The Defendant appealed the finding of liability. The line of argument relevant for the purposes of this article, and which eventually carried the day and disposed of matters, was that the trial judge erred in applying the wrong test, and in failing to give proper weight to relevant facts of the case. In the process, the Court of Appeal reviewed the constituent elements of the law of negligence in Ontario.

Dealing firstly with the protests raised, on appeal, by the defendant:

i) how, and why, should it be liable for the actions of the vandal, there being no evidence that his intervention was 'reasonably foreseeable' to the crew? The defendant protested that in the judge failed to consider evidence that there was no prior incident of vandalism on the job site, or, for that matter, in the experience of the crew members;

ii) how, and why, should the fact that the crew did not take steps to actually prevent tampering of the spider rope, amount to 'negligence'? In short, is this not too harsh and too much of an expectation to be placed upon it in the circumstances?

iii) How, and why, should the defendant be found liable, by virtue of being compared to the 'Rule Book', without other facts and circumstances also being considered? In short, was the failure to follow a Rule Book necessarily negligence?

The Court of Appeal confirmed the two key elements to every case of negligence. First, a duty of care must be owed by the defendant to the plaintiff. Second, liability, as a general rule, will be found where that duty was breached, that is, that the requisite standard of care was not met by the defendant. As stated by the Court of Appeal, liability in negligence does not necessarily follow from the fact that the conduct of one person has caused another harm. Negligence is the failure of a person who owes a duty of care to another to take such care as would have been reasonable in the circumstances. Just what is reasonable depends on the facts of each case.

Breaking these items down:

Part 1: Establishing a Duty of Care

The first step to take in a negligence analysis is to determine, whether the defendant, a public utility, owed a duty of care to the plaintiff in connection with the security of the ropes and the project as it could affect Highway 11. If such a duty did exist, the court must decide whether the defendant exercised the standard of care necessary to avoid breaching that duty.

To determine whether the defendant owed the plaintiff a duty of care involves a two step process. First, the question must be asked as to whether there is a 'sufficiently close relationship' between the parties involved so that in the reasonable contemplation of the defendant, carelessness on its part might cause damage to that person. If so are there any considerations which ought to negative or limit a) the scope of the duty, and b) the class of persons to whom it is owed, or c) the damages to which a breach of it may give rise?

The Court noted that the first step above involves a low threshold. The plaintiff must show that there was a relationship of 'proximity' between the parties whereby it was reasonably foreseeable that a careless act by the defendant could cause injury to the plaintiff.

The second step above involves a determination as to whether any factors exist eliminating or limiting such a duty of care found. 'Proximity', by itself will not always result in it being found that a duty of care exists. For example there may circumstances to be considered by the court in modifying or eliminating the finding of any duty of care.

In other words, a duty of care exists where it is reasonably foreseeable that carelessness might cause harm. At this point of the analysis the Court makes a very important distinction. Foreseeability of the possibility of harm is inadequate to establish a duty of care. Rather, foreseeability of the probability of harm involves a likelihood that such harm will be result from the defendant's conduct. As such, a duty of care exists only where what happened was a natural and probable result of what the alleged wrongdoer did or did not do.

As stated by the Court, defendants are not expected to be omniscient or clairvoyant in respect of preventing against the mere possibility of harm. It is the likelihood of harm that must be protected against.

The trial judge had found that there was a relationship of proximity such that it was reasonably foreseeable that a careless act by the defendant utility would result in injury to the plaintiff. The Court of Appeal agreed. Clearly, anyone working on an overpass could pose a clear and likely risk to users of the highway below. The Court of Appeal also found that there existed no considerations or factors to eliminate or limit the duty established under this test.

Part 2: Determining the Standard of Care

Finding that a duty of care was in fact owed, the Court then considered whether the standard of care was breached. It was in this part of the analysis that the Court of Appeal parted ways with the trial judge. As stated by the court:

"To avoid liability, a person must exercise the standard of care that would be expected of any ordinary, reasonable and prudent person in the same circumstances. The measure of what is reasonable depends on the facts of each case, including the likelihood of a known or foreseeable harm, the gravity of that harm, and the burden or cost which would be incurred to prevent the injury. In addition, one may look to external indicators of reasonable conduct, such as custom, industry practice, and statutory or regulatory standards".

The Court of Appeal found two errors by the trial judge in finding that the defendant had breached the standard of care. First, the judge wrongly applied the 'Rule Book' against the defendant. The Court noted that such material did not in fact prescribe any industry standard on securing spider ropes when a crew is absent from a job site. Rather, the 'Book" simply prescribed that utilities are to 'take precautions to avoid injury… reasonable in the circumstances to ensure safety of the workplace and the public".

This simply codifies, or repeats, the common law standard of care as already noted by the Court. As such, it does not create an 'industry standard', let alone anything by which the defendant could or should be compared to in terms of its conduct.

The second error extended from the initial finding that the 'Rule Book' created an industry standard. The trial judge arrived at the conclusion that there was negligence simply by virtue of the 'Book' not being followed, without considering other factors of the case, bearing in the mind the tests for liability as set out above. In short, even if there was an industry standard, the failure to abide by it is only a factor, but not the only factor, to be taken into consideration.

The Finding of the Court of Appeal

The conduct of the defendant's crew did not fall below what was reasonable in the circumstances. The vandal caused the accident. His involvement could not be reasonably foreseen. The vandalism occurred in broad daylight beside a busy roadway, rarely frequented by pedestrians. The method for the securing the rope had been used by the utility for several years without any problems. While other methods of rope security existed, possibly reducing the risk of trespasser interference, nothing pointed to the possibility let alone the likelihood of such interference.

In sum the acts of the vandal were not reasonably foreseeable to the crew who did not thereby fall below a standard of care in not having specifically prevented against the same. The Court of Appeal accordingly set aside the judgment, vindicating the defendant.

Gordon Hearn



 


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