1) Application of the Standard of Care

When applying the standard of care to the facts of a case, courts have found it useful to review a number of factors that guide a reasonable person in the regulation of her conduct. [Note 9: The application of the standard of care to the facts of the case is a matter of fact to be decided by a judge trying a case alone, or for the jury in a jury trial. Even in non-jury trials, the distinction between issues of fact and law are important for the purposes of appeal. Appeal courts are reluctant to interfere with a primary finding of fact made by a judge or jury.] The most significant of these is the concept of a reasonably foreseeable risk. Conduct is negligent only if it carries a risk of damage that a reasonable person would contemplate and guard against. In addition, courts routinely consider the likelihood of the damage occurring, the seriousness of the threatened harm, the cost of preventive measures, the utility of the defendant's conduct, any circumstances of emergency, compliance by the defendant with approved practice or custom, and the defendant's post-accident precautions. Other more controversial and elusive factors such as judicial policy, economic factors, the equity of the individual case, and the psychological phenomenon of hindsight bias may also be influential.

a) Foreseeable Risk

The central element in applying the standard of reasonable care is the concept of a reasonably foreseeable risk. The reasonably careful person avoids creating a foreseeable risk of injury to others. The concept of foreseeability may not, in itself, be sufficient to support a finding of negligence because other factors must be considered, but it is an essential component of liability. Four decisions of the Supreme Court illustrate the pivotal role of reasonable foreseeability. All four cases involved children who were injured when they came into contact with high-voltage electric wires under the control of the defendant power corporations. The defendant was found to be negligent in two of them.

In Gloster v. Toronto Electric Light Co., [Note 10: (1906), 38 S.C.R. 27.] a boy aged eight and a half years was injured when he reached out and touched a live wire that was just fourteen to twenty inches away from the public bridge on which he was standing. The danger was obvious to a reasonable person and the defendant was held to be negligent. In Amos v. New Brunswick (Electric Power Commission), [Note 11: (1976), [1977] 1 S.C.R. 500.] the defendant had allowed a poplar tree to grow up through electricity lines so that they were obscured from sight. Children were known to play in the area. The plaintiff was nine. He climbed to the top of the tree and was severely injured when the trunk or a branch of the tree swayed into the high-tension wires. The Court imposed liability. The risk was clearly foreseeable and a reasonable person would have trimmed the tree.

In the other two cases, the plaintiffs were unable to establish a foreseeable risk of injury. In Shilson v. Northern Ontario Light & Power Co., [Note 12: (1919), 59 S.C.R. 443.] a twelve-year-old boy was electrocuted as he walked across a narrow pipe stretching three hundred feet across a ravine that was twenty feet deep. When he got to the middle of the ravine, he reached out and touched a live wire four feet above the pipe. Warnings and barricades at each end of the pipe had not dissuaded him from venturing across. Given these unusual circumstances, the Court concluded that the defendant had "no reason to apprehend that children might find an opportunity of making the company's high voltage wire . . . a source of danger." [Note 13: Ibid. at 446.] In Moule v. New Brunswick Electric Power Commission, [Note 14: (1960), 24 D.L.R. (2d) 305.] the ten-year-old plaintiff was injured when he climbed a maple tree and came into contact with the defendant's power lines. The defendant had taken some steps to reduce the danger. The maple tree had been trimmed of branches on the side facing the power lines and it was not possible to climb the tree directly from the ground. The plaintiff had initially scrambled into an adjacent spruce tree with the help of some boards nailed onto its trunk in the form of a makeshift ladder. From there he crossed over to the maple by way of a wooden platform. He then climbed the maple with the help of more nailed boards and straps. All of this "construction" appears to have been the work of children in the area. When he was high up in the maple, he stepped on a rotten branch and fell in such a way as to come into contact with the tree and the live wires at the same time. The Court held that a reasonable person could not have foreseen such an extraordinary concatenation of events. It agreed with the words of Ritchie J.A. in Court of Appeal, who stated: "The defendant should not be held guilty of negligence for not having foreseen the possibility of the occurrence of such an unlikely event as happened in this case and provided against it by the removal of the maple tree." [Note 15: Ibid. at 309.]

These four cases indicate the need for a scrupulous consideration of the facts to determine if the defendant's conduct created a foreseeable risk of harm. It is not always an easy task. The looseness and highly discretionary nature of the concept of reasonable foresight provides a great deal of freedom for the judge or jury. Nevertheless, its importance is unquestioned. It is the essence of negligence.

b) The Likelihood of Damage

Consideration is to be given not only to the foreseeability of damage but also to the likelihood of it occurring. The reasonable person takes greater care where there is a strong likelihood of damage and takes lesser care when the chance of damage is minimal. The leading case on this point is Bolton v. Stone. [Note 16: [1951] A.C. 850 (H.L).] The plaintiff was struck by a cricket ball while she was standing in the street outside her house. The ball was hit out of the defendant's nearby cricket ground in the course of a match. In the past thirty years, approximately six balls had been hit onto that street. The plaintiff argued that, once a single ball had been hit there, it was foreseeable that it might happen again and that someone might be injured. It was, therefore, negligent to continue to play cricket on that ground. The House of Lords disagreed. To demand that the conduct of citizens be entirely free of all foreseeable risk would be not only excessively burdensome but, in the light of human nature, impractical. The Court drew a distinction between foreseeable risks that are substantial and material and foreseeable risks that are highly unlikely or mere possibilities. Reasonable people avoid creating material and substantial risks of foreseeable harm. They cleanse their conduct of unreasonable risks, not every foreseeable risk. While the case was close to the borderline, it was not, in the opinion of the Court, negligent to expose the plaintiff to such a small risk of being hit. This is not an easy line to draw at the margins and much will depend on the other factors influencing the application of the standard of care.

c) The Seriousness of the Threatened Harm

The reasonable person also regulates his conduct with reference to the severity of the threatened harm. The leading case illustrating the need to take greater care when the threatened harm is serious is Paris v. Stepney Borough Council. [Note 17: [1951] A.C. 367 (H.L.). ] In that case, the plaintiff was, in the course of his employment, removing bolts from the chassis of a motor vehicle with a steel hammer. Although the plaintiff had previously lost his sight in one eye, he was not given protective eyewear to protect himself from the foreseeable risk of steel splinters flying off the bolts. While he was carrying out this task, a splinter entered his good eye and he became totally blind. The defendant employer argued that, because the risk of any eye injury was low, and because it was not customary to provide protective eyewear to fully sighted employees, it was unnecessary to provide protective eyewear to the plaintiff. His risk of an eye injury was no greater than that of the other workers. A majority of the House of Lords rejected this argument. While there may have been no greater risk of injury to the plaintiff, there was a risk of greater injury to him, [Note 18: J.G. Fleming, The Law of Torts, 9th ed. (Sydney: LBC Information Services, 1998) at 128.] and a reasonable employer would have taken greater care for an employee who had already lost his sight in one eye. [Note 19: The work-related accident litigated in this case would not give rise to a tort claim in Canada. It would fall within the scope of the Workers'Compensation scheme. In England, workers retain the right to sue in tort.]

The severity of the threatened harm was also a factor in favour of the defendant in Bolton v. Stone. A cricket ball does not present a risk of serious injury or death. A laceration or a bruise is the most that one might anticipate. If the ground had been used as a training facility for track-and-field athletes and it was a discus or javelin that was occasionally thrown into the street, the decision would probably have gone against the defendant.

d) The Cost of Preventive Measures

Consideration of the magnitude of the risk (the likelihood of the damage multiplied by the seriousness of the threatened harm) must be balanced by a consideration of the cost of the measures needed to reduce or neutralize the risk. It is neither good policy nor good sense to demand extravagantly expensive and impractical measures to remove minimal risks. On the other hand, where reasonable, affordable, and practical safety measures are available to combat foreseeable risks, they must normally be taken.

The Supreme Court addressed this issue in Ware's Taxi Ltd. v. Gilliham. [Note 20: [1949] S.C.R. 637.] The defendant taxi company transported young children to and from school in a four-door car. In the course of a journey, the plaintiff, a five-year-old girl, was playing with the push-button lock on the back door. The driver admonished the plaintiff, she told her to move away from the door, and she checked that the door was locked. In spite of these precautionary measures, the door opened and the plaintiff was injured when she fell out. The Court noted that childproof locks were available at a cost of $10 per lock and that some other taxi companies either positioned older children in the back seat to guard the doors or used two-door vehicles. The Court evaluated the sufficiency of the defendant's care in the light of these available preventive measures. A majority held that the defendant was negligent. The suggested precautionary measures, including the use of the childproof locks, were inexpensive, feasible, and would not interfere unduly with the transportation of children to and from school.

A useful contrast is provided by the House of Lords decision in Latimer v. A.E.C. Ltd. [Note 21: [1953] A.C. 643 (H.L).] In that case, a factory was flooded during a sudden and severe rain storm. The flood water mixed with oil and when it receded the floor was left in a very slippery state. An extensive clean-up took place but the only way to make the floor completely safe was to close the factory temporarily. The defendant chose not to do so and the plaintiff slipped and injured his ankle. The House of Lords held that the defendant was not negligent. On balance, the small risk to the employees was insufficient to justify the expense and inconvenience of completely interrupting the defendant's business, even on a temporary basis. [Note 22: In England, a worker may sue his employer in tort. In Canada, the plaintiff in this case would be compensated under the Workers' Compensation scheme.]

Bolton v. Stone also provides a useful illustration. The Court appears to have decided the case on the assumption that the only way to remove the risk of personal injury to those outside the cricket ground was to stop playing cricket at that location. This significant economic and social cost probably supported the Court's decision in favour of the defendant. The decision might have been different if, for example, the plaintiff was able to establish that a minor realignment of the cricket pitch or a small increase in the height of the boundary fence would have prevented balls from being hit out of the ground.

e) The Utility of the Defendant's Conduct

The utility of the defendant's conduct is also a relevant factor in the application of the standard of care. This factor, however, appears to be directly relevant to only a few cases. Those cases usually involve governmental services where the inevitable price of direct and necessary benefits to the public is an increased risk of injury to innocent persons. A good example is found in cases involving plaintiff bystanders who are injured as a result of high-speed police chases designed to apprehend suspected criminals. [Note 23: Priestman v. Colangelo, [1959] S.C.R. 615.] Police officers in such circumstances are permitted to expose the public to a degree of risk that would not be tolerated from private citizens. Police officers and other emergency personnel do not, however, have carte blanche in respect of their conduct. The standard of conduct remains one of reasonable care in the light of all the relevant factors including the danger created, the nature and purpose of the defendant's conduct, the urgency of the situation, any alternative means of achieving the laudable purpose, and the surrounding circumstances of time and place. Recently, however, a majority of the Newfoundland Court of Appeal in Hammond v. Wabana (Town of) [Note 24: (1998), [1999] 170 Nfld. & P.E.I.R. 97 (Nfld. C.A.) [Hammond].] took the unusual step of dispensing with the standard of reasonable care for volunteer firefighters. The Court held that the difficulty of their task, the utility of their conduct, and the interest of the community in supporting and maintaining a volunteer firefighting service dictated a subjective standard of care. The Court held that they must, in the light of the available resources, do their best to put out fires. Bona fide decisions or actions are not open to question unless they worsen the situation or amount to a substantial departure from basic principles of firefighting.

The utility of the defendant's conduct also has a general, pervasive influence in all negligence cases. Judges are acutely aware that most defendants in negligence cases are, at the time of the accident, pursuing legitimate activities of personal, commercial, or public utility and that these activities inevitably carry some degree of risk. The task of the courts is to decide society's current degree of risk tolerance by labelling risks as either reasonable (no liability) or unreasonable (liability). In drawing this distinction, courts must be sensitive to current attitudes to risk and the importance of facilitating the legitimate activities, needs, and aspirations of citizens. Transportation must move at an adequate speed, new medications must be released to the public on a timely basis, aircraft in landing patterns over Toronto's Pearson Airport must be in close proximity to each other, millions of consumer items must be put on the market without individual safety checks, and physicians must limit the time that they spend with each patient. Many foreseeable risks must be tolerated because they are integral to the kind of society that we have chosen to create and live in.

Conversely, there appears to be no reason why the courts should not also take into account the disutility of the defendant's conduct. This has not been directly acknowledged by the courts but there is no reason to tolerate even minimal risks arising from antisocial conduct of no redeeming value.

f) Emergency Situations

Sometimes a defendant must act in an emergency that is not of his making. Emergencies tend to breed excitement, confusion, and anxiety, which may rob the defendant of his usual power to exercise prudent judgment and due care. In retrospect, he may make a poor choice, perform badly, or exacerbate the situation. Courts are sympathetic to the defendant's plight and some leniency is shown to defendants who have done their best in the "agony of the moment." This leniency is particularly pronounced where the defendant is acting in the capacity of a rescuer. In Horsley v. McLaren, [Note 25: (1971), [1972] S.C.R. 441 [McLaren].] the Supreme Court considered the actions of the defendant owner of a pleasure boat when a passenger fell overboard and drowned. The defendant attempted a rescue by backing the boat towards the passenger. Expert evidence established that this was an improper rescue technique. A bow-on procedure was indicated. A majority of the Court held that the defendant may, in the heat of the moment, have made a mistake but he had acted in good faith and had done his best to rescue the deceased. He was not negligent. Laskin J. (as he then was) rejected this lenient standard of care. He found negligence on the ground that it was not a case of carrying out the appropriate procedure badly because of the pressure and stress generated by the emergency. It was a case of not putting into action standard procedures that are required in an emergency and which the defendant knew of and had practised. He would have imposed liability.

g) Custom and Approved Practice

The application of the standard of care is also influenced by proof that the defendant's behaviour was consistent with the established practices and customs of other citizens carrying out similar activities and tasks. It is not uncommon, for example, for a defendant who is a member of a business, trade, or profession to seek to avoid a finding of negligence on the ground that she had acted in accordance with a well-established custom or practice of the group to which she belongs. There are good reasons for the court to consider such evidence. It establishes a concrete, defined course of conduct that reflects the accumulated wisdom of those involved in the activity. It indicates a course of conduct that has been found in the past to be acceptable and affordable. Furthermore, in situations where the courts have little expertise, evidence that crystallizes the abstract standard of the reasonable person into actual practices and procedures is of significant assistance.

The more difficult question relates to the weight that should be given to the evidence that the defendant complied with established practice. Early in the twentieth century, courts treated compliance with approved practice as conclusive of due care. That view has been discredited partly on the grounds that it is the responsibility of the judge or jury to decide whether there has been negligence, not the particular profession or occupation, and partly because it threatened to be an impediment to legitimate innovation and progress. The current approach is to view proof of compliance with approved practice as providing some evidence of due care. The strength of that evidence depends upon the longevity of the practice, its universality, the status and reputation of the profession or occupation and its members, the degree of technical difficulty of the task at issue, and any evidence of additional precautions that may have been available.

Proof of compliance with approved practice is particularly influential in medical malpractice cases. Courts pay great deference to the practice and customs of the medical profession. This is explained by the high social status of physicians, their reputation for integrity and competence, and the technical nature of much of the practice of medicine. The Supreme Court decision in ter Neuzen v. Korn [Note 26: [1995] 3 S.C.R. 674 [ter Neuzen].] is illustrative. The plaintiff patient participated in an artificial insemination program run by the defendant physician. As a result of a procedure performed before 1985, the plaintiff was infected with HIV. Expert evidence indicated that the defendant had complied with approved medical practice in screening sperm donors at the time of the procedure. The trial judge, nevertheless, instructed the jury that it could find the practice negligent and the jury so found. The Supreme Court held that the instruction was incorrect. It held that "where a procedure involves difficult or uncertain questions of medical treatment or complex, scientific or highly technical matters that are beyond the ordinary experience and understanding of a judge or jury, it will not be open to find a standard medical practice negligent." [Note 27: Ibid. at 701.] The Court also recognized, however, that, conversely, where a standard practice is fraught with obvious risks that any layperson could understand, a finding of negligence may be made. The facts of Anderson v. Chasney [Note 28: (1949), 57 Man. R. 343 (C.A.), aff'd [1950] 4 D.L.R. 223 (S.C.C.).] illustrate this latter situation. In that case, a child suffocated after a tonsillectomy. A sponge had been inadvertently left in his throat. The Court held that it was appropriate to find that the failure to perform a sponge count and have tapes on the sponges was negligent even though the approved practice at that time was not to do so. The case of Girard v. General Hospital of Port Arthur, [Note 29: [1997] O.J. No. 2666 (Gen. Div.) (QL), rev'd [1998] O.J. No. 6137 (Div. Ct.) (QL).] however, indicates that the principle in ter Neuzen is not always easy to apply. In the course of a neurological examination of the plaintiff, the defendant physician performed a gait assessment. It involved following the patient from behind while she walked across the examination room. The plaintiff, who had experienced dizziness and a loss of balance for some weeks, fell before the defendant could catch her. The defendant argued that the test had been performed in accordance with approved and standard practice. The trial judge held that, in spite of this, the defendant was negligent. There was an obvious risk, apparent to the ordinary person, that the plaintiff might fall, and it was negligent not to have a nurse or an orderly to prevent that eventuality. The Ontario Divisional Court disagreed. It noted that the expert evidence, accepted by the trial judge, was that the defendant's actions were consistent with approved practice and that there was no reason to suspect that the plaintiff would fall. It was not open to the court to reject that professional opinion even though the presence of a nurse might be considered a reasonable precaution by a lay observer.

Approved practice and custom is also a relevant factor when the defendant is not in compliance with it. A deviation from customary standards is not conclusive of negligence but it is likely to be given significant weight by the court, and the defendant is wise to negate this evidence by giving some explanation for the deviation or by showing that her conduct was no more dangerous than the standard practice.

h) Post-Accident Precautions

When an accident occurs, risks that may not have been contemplated by the defendant before the accident become known. Subsequently, he may adopt additional safety measures to make sure that a similar accident does not happen again. At trial, a plaintiff may seek to use these post-accident precautions as indicative of the defendant's negligence. The use of post-accident precautions in this way advances the compensatory function of negligence law by facilitating a finding of liability, but it may have an adverse impact on accident prevention goals by discouraging potential defendants from taking additional precautionary measures for fear that they will conclusively foreclose the issue of fault in favour of the plaintiff. The courts have attempted to steer a middle path between these competing policy objectives. Evidence of post-accident precautions may not, in itself, be construed as an admission of liability but it may be admitted to establish a fact that supports a finding of negligence where the evidence would not be unduly prejudicial to the defendant. This distinction, which is not an easy one to draw in practice, is illustrated by Anderson v. Maple Ridge (District of). [Note 30: [1993] 1 W.W.R. 172 (B.C.C.A.).] In that case the British Columbia Court of Appeal approved the use of evidence that a stop sign was moved by the defendant municipality after a car accident and that there was a subsequent reduction in accidents to show that the sign was difficult to see in its original location. This treatment of post-accident conduct may lack precision and certainty but it does allow the courts to deal with the issue sensitively and to promote one or other of the competing policies as the circumstances of the individual case warrant.