Special Standards of Care

Special Standards of Care 

Tort law recognizes that a strict and general application of the universal objective standard of care in all cases may yield absurd and unjust results. Hence, the general standard of care is modified for certain categories of tortfeasors to produce a nuanced, contextualized and reasonable result.

Recognized Special Categories The Young  The Mentally and physically disabled.  Professionals such as lawyers and physicians  Statutorily prescribed standards of care  Custom 

The Young 

Negligence law takes into consideration the age of the alleged tortfeasor. This indulgence arises from the principle that young children are not expected to possess the same common sense, knowledge, control, and intelligence as adults. As Shulman has argued, “to do otherwise, would be to shut [the law’s] eyes, ostrich-like, to the facts of life and to burden unduly the child’s growth to majority. The courts recognize that a “minor’s normal condition is one of recognized incompetency.”

The Young For obvious reasons, (inability to pay, and general indulgence granted to children by adults) there are few cases that deal with negligence suits against children.  However, the issue of special standard of care for children may arise where a child is the plaintiff and the defendant alleges contributory negligence against the child. 

The Young 

Tort law recognizes a difference between children of “a tender age” and “children beyond tender age.” What is a “tender age” in tort law? No definite line has been drawn by the courts but the cut off point seems to be “where the age is not such as to make a discussion of contributory negligence absurd.” Generally speaking, children below 5 cannot be held liable in contributory negligence. The SC in Ware’s Taxi case suggested that children aged 6 yrs and above may be held liable in negligence.

The Young: ‘tender age’ 

It seems however that age alone is not the sole determinant. In Gosselin’s case, an infant, one week less than 3 yrs old, was excused from liability when he injured a baby by dragging her on the ground. In the reasoning of the court, “mere age is not in itself the test, but rather the capacity of the infant to understand and appreciate danger.”

The Young: Beyond Tender Age 

A special standard of care operates for children aged 6 and 18. In Canada, the standard of care is “whether the child exercised the care expected from a child of like age, intelligence and experience.” Prima facie, this standard seems objective (in a modified sense) and divorced from the peculiar appetites or subjective idiosyncrasies of the child in question. In reality, the test subjectivizes the standard as it considers the child’s peculiar “intelligence” and “experience”.

The Young: Subjective or ….? 

The elements of intelligence and experience bring to bear factors which may be subjective or at least, “modified objective.” Children of a similar age may have enormously different life experiences intelligence. Would a child of 8 raised in a horsebreeding farm be expected to have the same experience as an inner-city child of 8 who has no experiences with a farm of horses? Does the neighbourhood where the child was raised matter?

The Young: A Subjective Test? 

Heisler’s case is authority that in Canada, the subjective test applies. “All of the qualities and defects of the particular child and all of the opportunities or lack of them which he might have had to become aware of any particular peril or duty of care must be considered…The test is a subjective one…we consider here the particular child.” Per Addy J., (Court applying earlier ratio of SC in McEllistrum v. Etches. Distinguish this from the state of the law in England.

The Young 

Consequently, some jurisdictions, especially England, have deemed it less problematic to use age as the sole criterion. This is an attempt to bring a higher level of objectivity to the standard of care expected of young children. Be that as it may, it is often difficult to succeed in a negligence action against children. Lability has been denied where a child of 8 struck a match in a farm barn; child of 11 handling gasoline, etc.

Parental Liability 

In the light of grave difficulties that may arise in finding children liable in negligence, some states or provinces have enacted legislation to make parents responsible for wrongful acts intentionally committed by their children. See for example, Parental Responsibility Act, 2000, S.O. 2000, c. 4. See also, Shannon v. T.W, Cinnirela v. C.C. at pg 44 of Supplement.

Adult Activities Doctrine 

Note that where a child or a minor engages in dangerous adult activities, such as driving a car, s/he must conform to the standard of the reasonably prudent adult. (Dellwo v. Pearson). What is an “adult activity”? See McErlean’s case. It seems that where the activity in question is such that there is a general expectation by the public that the person undertaking is an adult, the courts would likely construe such an activity as “adult activity.” Ryan v. Hickson

The Aged and the Infirm 

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There is slender judicial authority abroad for the rule that the aged and the infirm may get some of the indulgence granted to children (Daly v. Liverpool). In Canada, the courts have not yet developed a consistent separate standard of care for the aged and the infirm. Is the weakness of youth similar to the infirmity of old age? Query: what of the mentally ill? See Buckley’s case, (the syphilitic truck driver) and compare with Roberts (stroke-prone driver)

The Mentally Ill 

Here, the ‘fault’ theory of torts conflicts with the ‘compensation’ theory. Canadian case law suggests some degree of indulgence for the mentally ill. In Buckley’s case, a truck driver whose syphilis had progressed to mental delusion was excused from liability on the grounds that his temporary insanity prevented him from discharging his duty of care. However, mental ill health is not enough.

Fiala v. Cechmanek 

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In Fiala’s case, the Alberta Court of Appeal opined that in order to escape liability, the dft must show on a balance of probabilities that: As a result of his/her mental illness, the dft had no capacity to understand or appreciate the duty of care owed at the relevant time; or As a result of mental illness, the dft was unable to discharge his duty of care as he had no meaningful control over his/her actions at the time the relevant conduct fell below the objective standard of care.

Fiala v. Cechmanek 

Query: Are the rationes decidendi in Fiala sufficiently objective test? And why does the reasoning of the Alberta Court of Appeal pay deference to the fault theory of tort at the expense of the compensation theory? Contrast Fiala with with Roberts v. Ramsbottom

Professional Negligence 

Since Hedley Byrne, the courts in commonwealth jurisdictions have accepted that in the absence of contractual relations, an action may be launched in negligence against a professional. Tort liability will arise from a relationship created by the assumption of responsibility, regardless of the existence of a contract. Where there is a contract, the tort remedy is concurrent with the contractual obligations of the professional.

Professional Negligence 

The leading authority in Canada on the liability of professionals is Central Eastern Trust Co., v. Rafuse. As the SC reasoned, for a tort liability to arise against a professional, there must be sufficient proximity giving rise to a duty of care between the ptf and the dft. Second, the scope of the duty of care must exist independent of any contractual obligations.

Rafuse Case 

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Third, liability in tort will not be permitted if the consequence would be to enable the ptf escape or circumvent a contractual exclusion or limitation of liability clause with respect to the act or omission which also constitutes the alleged tort. Where these elements have been satisfied, an action in negligence may then proceed against a professional.

Justification for Higher Standards 

The general standard of care is made stronger for professionals. As Fleming explains, “those who undertake work calling for special skill must not only exercise reasonable care but measure up to the standard of proficiency that can be expected from such professionals.” The test is not whether the dft’s performance was to the best of his/her ability. The test is whether his/her performance was up to the standard of a reasonably prudent professional in like circumstances.

The Standard for Professionals 

‘The degree of skill consistent with the function discharged, that is, consistent with the measure of skill displayed by others reasonably competent in that professional touching matters of like kind. Perfection is not expected; the world of work, not the ideal of the debating area, is the standard.” Wilson., J. in Trident Construction.

The Standard for Professionals 

The general principle is that every professional group has its own individual standards. Each member of a profession must conform to the specific or peculiar standards of his/her profession. Eg. A police officer would be expected to act like a “reasonable police officer”, etc. Query: What would be the test for unrecognized and unregulated “professions”? See Shakoor v. Situ (liver failure from Chinese herbal treatment of skin ailment)

LAWYERS 

The decision of the SC in Rafuse is the leading authority on the standard of care required of a lawyer. “ A solicitor is required to bring reasonable care, skill, and knowledge to the performance of the professional service which he has undertaken. The requisite standard of care is that …of the reasonably competent solicitor, or the ordinary solicitor or the ordinary prudent solicitor.” In effect, an attorney would be liable if her “error or ignorance was such that the ordinary competent solicitor would not make nor exhibit.”

Does the Locale Matter? 

In Page v. Dick, the court held that the standard of care required of a lawyer engaged in “mixed bag” practice was that of a “reasonably competent general practitioner in the Toronto area.” But in Marbel’s case, the SC of BC held that the standard of care is “reasonable care and skill regardless of geographical location and practising environment.” Given that lawyers are admitted by a Provincial Body of Benchers it would be absurd to have different standards in the same province.

LAWYERS 

Though lawyers revel in the public notion that they are members of the “learned” profession, the law does not really expect lawyers to know all the law applicable to the performance of a particular legal service. What is expected is that s/he has “sufficient knowledge of the fundamental issues or principles of law applicable to the particular work he has undertaken to enable him to perceive the need to ascertain the law on relevant points.” (Rafuse)

Lawyers 

The law does not require the lawyer to guarantee victory to the client. What is required is “careful, unnegligent advice on matters of law.” Errors of judgment will not necessarily amount to negligence. See Brenner v. Gregory. What is an “error of judgment?”

Defining “Error of Judgment” 

“An error of judgment is one that would not have been made by a reasonably competent professional person professing to have the standard and type of skill that the dft holds himself out as having…if on the other hand, it is an error that a man, acting with ordinary care, might have made, then it is not negligent.” Lord Fraser, in Whitehouse v. Jordan.

Error of Judgment in Practice Query: Was Christopher Darden negligent in OJ Simpson’s case?  Query: Did the DA in Kobe Bryant’s rape case make any “errors of judgment?” 

Specialist Lawyers 

Where a solicitor holds him/herself out as having a particular expertise in a given area of law, a higher standard applies. The standard is not that “of a reasonably competent solicitor but that of a reasonably competent expert in the designated field.” Ristimaki v. Cooper; Confederation Life

LAWYERS 

There is no lower standard for the new wig. Once called to the bar, the same general standard applies to a lawyer irrespective of their age at the bar. Only designated specialists or solicitors who hold themselves out as such are required to conform to that standard of care expected of a specialist. Where a lawyer does not have specialist qualifications in a matter that requires specialist expertise, the better approach is for him/her to inform the client accordingly.

PHYSICIANS 

Like lawyers, doctors are not required to guarantee a cure. The standard of care is that of the reasonably prudent doctor. This is an objective test. Thus, where a substantial number of other physicians approve of his/her conduct, albeit wrong, any resulting mishap would be regarded as an error of judgment, not an act of negligence. The opinion of other physicians may evolve with time and it is the duty of the physician to update his/her knowledge and skills accordingly.

Challand v. Bell 

Ptf fell at 9.30am while working in his cattle barn. He broke his left forearm, and fractured the radial and ulnar bones. The fracture punctured the flesh causing an open fracture. Ptf was taken to dft, a general practitioner at about 11.30am. Ptf was xrayed and the dft looked at the wound and after a careful survey, concluded that it was a clean one, devoid of foreign matter. Dft set the fracture, put the ptf in a cast, made periodic checks, and put the pft on antibiotics.

Challand v. Bell 

On Tuesday morning, dft became alarmed at the state of the ptf and sent him to off to a specialist, Dr. Wilson. The latter diagnosed acute fulminating gas gangrene and immediately amputated the ptf’s arm just below the elbow. Although the testimony of the experts differed, the court found that the dtf’s conduct was not only correct for a general practitioner but in fact did not differ from that which a specialist would have given. In sum, the action in negligence was dismissed.

Exception to Customary Practice 

Courts lack the expertise to second-guess the practices adopted by physicians in their profession. This is especially so where the procedure involves difficult or uncertain or highly technical questions of medical practice. However, an exception would be made if the standard fails to adopt “obvious and reasonable precautions which are readily apparent to the ordinary finder of fact” Sopinka, in ter Neuzen v. Korn.

Specialist Physicians 

Like lawyers, doctors who profess or hold themselves out as specialists in certain fields of medicine would be held to a higher standard of care. A specialist must exercise the degree of skill of an average specialist in his field. See ter Neuzen v. Korn.

Novice doctors and Interns 

Like lawyers, once admitted to practice medicine, novice doctors are held to the same general standard of care as experienced doctors. See Wills v. Saunders. However, interns are held to the standard of a reasonably competent intern. However, if an intern holds himself out as a fully qualified doctor, he will be held to the standards of a reasonably prudent physician.

Vancouver Gen. Hosp. v. Fraser 

2 interns, “cloaked with all the ritual and paraphernalia of medical science” wrongly read the x-rays of a car accident victim. The victim subsequently died as a result of complications from a broken neck which their examination of the x-rays failed to detect. Justice Rand reasoned that the interns held themselves out as fully qualified doctors. A prudent doctor would not have made the fatal mistakes which the interns made.

Does the Locale Matter? 

Like lawyers, there is slender authority for the proposition that a physician would escape liability in negligence if his/her conduct is in conformity with local standard. The locality rule now seems to have been jettisoned. A principle that permits an inferior standard of medical skills for rural Canadians while affording the highest standards for urbanites is objectionable. However, one must distinguish between “skill” and the availability of sophisticated tools or facilities in urban hospitals.

Physicians in the workplace 

The standard of care for physicians working with nurses or other medical personnel does not require the physician to be personally involved in the minutiae of caring for patients. Where there is a reasonable expectation that another medical personnel, for example, a nurse or a junior doctor would undertake certain tasks defined by the physician, any resulting negligence may not be visited on the physician.

Laidlaw v. Lions Gate Hospital 

A surgeon relied on a junior resident doctor to close up surgical incisions following an operation. The resident doctor and nurses negligently forgot sponges in the body of the plaintiff. In an action in negligence, the BC court reasoned that the surgeon was not personally negligent but the resident doctor and nurses were held liable in negligence.

Examples of Medical Negligence Misdiagnosis of ailment  Removal of wrong organ  Improper sutures  Misuse of anesthetic  Removal of the wrong tooth  Leaving behind swabs, sponges, scalpels, etc 

CUSTOM 

There are circumstances where the standard of care is determined by reference to the question whether a person’s conduct was in conformity with the general practice of those engaged in a similar. In such cases, it may be said that the collective habits of a group of people or profession has acquired significant probative value, if not legal force. There are policy, cultural, and economic that justify the use of custom as a special standard of the duty of care.

Scope and Elements of Custom 

Deference is usually paid to customary practices in matters transcending the ordinary experience or competence of the trier of fact. Although there are no minimum requirements, case law suggests that a conduct amounts to “custom” by reference to (a) the number of individuals conducting themselves in like manner, (b) the length of time of that practice, (c) the feasibility of the practice, (d) and the reasonableness of the practice

Custom 

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He who alleges the existence of a custom must prove it. However, in rare cases, the court may take judicial notice of the existence of a custom. Evidence of a general custom in not conclusive proof that the dft acted reasonably. In Anderson v. Chasney, the dft doctor failed to adopt a system to ensure that all of the sponges which were used during an operation were removed. His defence that his procedure was consistent with the general at that particular hospital was rejected.

ter Neuzen v. Corn 

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ter Neuzen’s case resolved the difficult question of whether a person whose conduct is in conformity with proven general practice of his profession can be held liable in negligence. The SC, per Sopinka, held that such a person cannot be liable, provided her conduct requires expertise, knowledge and skill ordinarily not possessed by the trier of fact. (Maynard v. West Midlands; McLean v. Weir) Custom cannot be a shield for patently negligent conduct apparent to the trier of fact.

Statutory Standards of Care 

There are some activities in which the appropriate standard of conduct is prescribed by the legislature instead of being left to the evaluative process of judge and jury. (Fleming, at 137). Statutory standards are prescribed before the fact and seek to regulate certain industries, activities, trades, or businesses. Non-compliance with statutory standards, causative of damages, may constitute evidence of negligence. (R v. Sask Wheat Pool)

Negligence per se Or Evidence of Negligence 

For decades, the courts in England, Australia, Canada and the US have held divergent views on the jural status of statutorily prescribed standards of care. Are violations of those standards conclusive proof of negligence or evidence of negligence which the courts may in certain circumstances take into account? Can a person injured where a statutory standard of care has been breached sue in tort?

The Canadian Position 

On the former question, American/Canadian courts adhere to the theory that violation of a statutory standard of care is evidence of negligence. On the other hand, the AngloAustralian position is that it is negligence per se; a theory which gives short shrift to the element of causation in attaching liability in negligence. For example, what is the relevance of not having a rear light in one’s vehicle (a traffic violation) to a headon collision with a pedestrian.

R.v. Sask Wheat Board 

On the latter question, the SC held in R v. Sask Wheat Board that there is not tort of breach of statutory duty in Canada. This case concerned the breach of the Canada Grain Act which resulted in the plaintiff’s economic loss. The dft did not owe the ptf any common law duty of care. The major impact of the Wheat Board case is that courts will not find a dft liable in negligence merely because a statutory standard of care was breached.

Scope of Statutory Standards 

For a ptf to successfully rely on the dft’s violation of a statutory standard as evidence of negligence, s/he must show that (a) s/he belongs to the particular class of persons which, in the court’s opinion, the statute was intended to protect, (b) that the injury is of a kind within the intended scope of the statute. (Gorris v. Scott: The intended peril was the avoidance of the spread of animal disease on high seas, not the physical protection of animals on board. Sheep washed overboard)