Negligence To Be Rexamined By The Supreme Court in Garratt?

On Thursday, November 20, 2008, the Supreme Court of Canada (“SCC”) will release judgment in several applications for leave to appeal, including the case of Garratt v Orillia Power Distribution Corporation, 2008 ONCA 422, which involves the tort of negligence.

On November 6, 2002, Lynda Garratt, the plaintiff, was driving under an overpass on Highway 11 in Orillia when a piece of construction equipment referred to as a “spider rope” fell from the overpass and hit the hood of her car. The impact caused an accident from which she suffered injury. At the time of the accident, Garratt noticed a man standing on the overpass.

Orillia Power Distribution Corporation, the defendant, is a utility company which had been working on the overpass performing an electrical installation. In performing this installation, the crew used the spider ropes to place electrical conductors through the new hydro poles. At the time of the accident, the crew had vacated the site for their lunch break. At trial, the judge found that the spider rope had become loose and hit Garratt’s car as a result of vandalism and not because it had been improperly tied. This vandal was a stranger and not at all associated with the crew.

The judge, however, decided in favour of Garratt, finding that the defendant was liable in negligence. In coming to this conclusion, the trial judge found that there was a “rule book” published setting out minimum standards of job site safety. According to the trial judge, the defendant had not followed the minimum standards for securing a site for lunch breaks, thereby failing to meet the required standard of care.

The Ontario Court of Appeal (“ONCA”) reversed the trial judge’s decision, finding in favour of the defendants. In coming to its decision, the ONCA confirmed that there are two elements that must be established in cases involving negligence: 1. the defendant must owe the plaintiff a duty of care, and 2. liability will be found where the defendant did not meet the standard of care and the duty owed to the plaintiff was breached. As explained by D. Watt J.A. in paragraph 37 of the court’s decision:

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. And what is reasonable depends on the facts of each case.

In this case, the court found that the defendant did owe the plaintiff a duty of care as they were in a “sufficiently close relationship” of proximity and there were no policy considerations to negate this duty. The court notes that there must be foreseeability of the probability of harm stemming from the defendant’s actions in order to establish a duty of care, rather that only foreseeability of the possibility of harm. Here, construction work on an overpass is a likely risk to drivers or other individuals below.

Despite the duty owed by the defendant to the plaintiff, the ONCA disagreed with the trial judge with respect to the second requirement, finding that the standard of care was not breached. First, the court determined that the trial judge erred in finding that the rule book created an “industry standard.” Instead, this rule book only dealt with the conduct of work and personnel safety, but said nothing about how employees of utilities are to secure spider ropes when employees are absent from an installation site. The wording of this rule book was very general, stating nothing more than the legal requirements for the standard of care at common law. It failed to establish an “industry standard upon which to found liability in the circumstances of this case.” Further, the court explained that a finding of strict liability should not occur solely on the basis of an industry standard. Rather, it should be one of various factors to be taken into consideration when testing for liability.

In this case, the vandalism could not be reasonably foreseen, and hence the conduct of the crew did not fall below the standard of care. The vandalism occurred in broad daylight, beside a public roadway on an overpass rarely travelled by pedestrians. No vandalism had occurred at any stage or location of the project beforehand and the crew was all experienced and had not experienced any vandalism during their careers. Furthermore, the method used by the crew for rope security been used for “several years without incident…While other methods of rope security may have reduced the risk of trespassory interference, nothing indicated the possibility, let alone the likelihood of such interference.”

The ONCA decision seems to indicate that public utilities shall not be responsible for acts of third party vandalism unless the act is at least a probable occurrence. Should application for leave to appeal be granted on Thursday, the door shall be opened for the SCC to re-examine the doctrine of foreseeability in cases of negligence or omissions with respect to the actions of intervening third parties. Considering that the vandalism appeared to be a random act, I am of the opinion that the ONCA decision results in a fair outcome, as the vandal’s actions were not reasonably foreseeable and the crew used measures to secure the spider ropes; however, we will have to wait until Thursday to see if the SCC will reconsider the outcome of this case.