SCC: good review on law of negligence

The Supreme Court of Canada has recently released unanimous reasons for judgment written by Cromwell J., Fullowka and Pinkerton’s of Canada Limited, 2010 SCC 5.

I bring this case to your attention as a helpful overview on the law of negligence in Canada.

A strike at a mine near Yellowknife in 1992 degenerated into violence when the mine decided to continue operating the mine during the strike with replacement workers. Several security guards were attacked and some striking miners set off several explosions. One striking miner planted an explosive device in the mine and a car carrying nine miners triggered this set trip wire killing them all in the explosion. The miner survivors sued the mine, the security company hired to protect the mine during the strike and the Northwest Territorial Government. They also sued the local and national union for failing to control the striking miners and for insighting the violence.

The Supreme Court of Canada very helpfully reviews the law on duty of care, standard of care, proximity and other elements of the tort of negligence. The court held that the trial judge had been correct in finding that the murdered miners were owed a duty of care but errored in finding that the requisite standard of care had not been met. Justice Cromwell held that to the extent that the judge had required the security company to ensure that the entrances were properly guarded to avoid all access to the mine, he had imposed an absolute duty on the security company and not a duty of reasonable care.

The Supreme Court of Canada also held that the trial judge had applied the wrong legal test for causation. The correct test is the “but for” test and that this case did not fall into the class of exceptional situations in which the test for causation should be relaxed to the “material contribution” test.

All in all this is a good read for the review of negligence principles including duty and standard of care, foreseeability, proximity and residual policy considerations.

Is chronic pain a foreseeable injury? (post-Mustapha)

In the recent decision, Degennaro v. Oakville Trafalgar Memorial Hospital, [2009] O.J. No. 2780 (S.C.J.), the Court considered the issue of reasonable foreseeability and chronic pain in the light of the Supreme Court of Canada's comments on this issue in Mustapha, [2008] 2 S.C.R. 114.

Gray J., considering whether chronic pain is a foreseeable injury in light of Mustapha, noted that: "There is obviously a subtle distinction between a person of less than ordinary fortitude who suffers damage that is not foreseeable, and a person of ordinary fortitude who suffers damage that is more serious than expected."

In Degennaro the plaintiff developed chronic pain after an injury that resulted in a fractured sacrum. The fracture healed but her pain got worse. There was no objective reason for the continuing and worsening pain. The eventual conclusion of her treating physicians was that the plaintiff had developed fibromyalgia. Although it was in dispute at the trial, the Court concluded that the chronic pain was caused by the same fall that had resulted in a fractured sacrum.

The Court then had to consider whether the chronic pain was foreseeable. This is what Gray J. wrote at paras 158-163.

158 In Mustapha, supra, the Supreme Court of Canada analyzed the issue. In that case, the Court held that it was not reasonably foreseeable that the plaintiff would suffer serious mental injury as a result of seeing flies in a bottle of water that he was about to install for a customer.

159 At para. 14 of her judgment, McLachlin C.J.C. stated that a plaintiff is to be considered objectively, not subjectively. Thus, a plaintiff is not to be considered in the context of his or her own personal makeup, which may give rise to the specific injury suffered, but rather objectively. That is, one must ask what a person of ordinary fortitude would suffer.

160 At para. 16 of her judgment, McLachlin C.J.C., in a passage that has some significance for this case, stated:

Once a plaintiff establishes the foreseeability that a mental injury would occur in a person of ordinary fortitude, by contrast, the defendant must take the plaintiff as it finds him for purposes of damages. As stated in White, at p. 1512, focusing on the person of ordinary fortitude for the purposes of determining foreseeability, "is not to be confused with the 'eggshell skull' situation, where as a result of a breach of duty the damage inflicted proves to be more serious than expected". Rather, it is a threshold test for establishing compensability of damage at law.

161 In my view, it is foreseeable that chronic pain may result from a physical injury. While the actual cause of chronic pain is not known, it is known that some people will develop chronic pain after physical trauma. Thus, chronic pain is foreseeable as falling within a range of consequences that may flow from a physical injury. This is a foreseeable consequence in a person of ordinary fortitude. Thus, in my view, the defendants must take the plaintiff as they find her. As noted by McLachlin C.J.C. at para. 16 of Mustapha, supra, this is simply a case where the damage inflicted has proven to be more serious than expected.

162 There is obviously a subtle distinction between a person of less than ordinary fortitude who suffers damage that is not foreseeable, and a person of ordinary fortitude who suffers damage that is more serious than expected. However, in view of the analysis in Mustapha, the distinction is real and must be respected. I have no doubt that Ms. Degennaro falls into the category of a person who is a person of ordinary fortitude who has suffered damage that is more serious than expected.

163 For the foregoing reasons, the chronic pain suffered by the plaintiff, Ms. Degennaro, was a foreseeable consequence of the incident that occurred in May, 1999, and the defendants must compensate her for it.