I) Judicial Policy

There is a great deal of unevenness in the way the standard of care is applied to different activities. This unevenness, which is facilitated by the abstract and malleable nature of the reasonable person standard, is reflective of judicial policy. In respect of some activities, the courts have exercised their discretion to impose high standards of care approaching strict liability. In other cases, a more relaxed standard has been favoured. In respect of car accidents, aircraft crashes, [Note 31: Railway accidents are not included because, until 1999, the McKay/Barclay rule dictated that unless there were exceptional dangers or extraordinary circumstances, railways could not be held liable in negligence if they were in compliance with statutory safety rules and regulations. The rule, which evidenced the historical power, influence, and importance of the railways in Canada, was abolished by the Supreme Court in Ryan v. Victoria (City of), [1999] 1 S.C.R. 201 [Ryan].] nd accidents caused by defective products, for example, the prevalence of liability insurance has led to the imposition of a stringent standard of care. Loss distribution policies have been very influential. High standards of care are also imposed in respect of fire hazards and on those who carry out other dangerous activities such as the handling of gasoline, blasting operations, or the bulk distribution of electricity. This may reflect a coincidence of loss distribution and deterrence policies. On the other hand, there are situations where the standard of care is applied in a way that is more protective of defendants. The standard of care has not been applied rigorously in respect of players in sporting events who injure other players. This may reflect judicial concern about a lack of liability insurance and the difficulty in setting a standard of care for robust body contact sports. Courts are also slow to impose liability on professional persons, particularly physicians, even though liability insurance is virtually guaranteed. This reflects the courts' sensitivity to the importance of a professional's reputation. There is a reluctance to label errors, mistakes, and misadventure as malpractice in order to promote the compensatory function of negligence law. Judicial policy is rarely addressed openly in written judgments dealing with standard of care issues, but general patterns of liability are apparent and are increasingly identifiable through computer searches of judgments in various fields of activity. They may be useful, albeit imprecise, predictors of the manner in which the standard of care is applied.

j) Economic Analysis

It is difficult to estimate the degree of influence that the economic analysis of law has on decision making in Canadian negligence cases. The courts have not openly embraced the concept but it is likely that economic theories developed and popularized in the United States [Note 32: R.A. Posner, Economic Analysis of Law, 5th ed. (New York: Aspen Law & Business, 1998).] influence some judicial thinking. Of particular relevance is the view that the dominant purpose of negligence law is not compensation but accident prevention. The standard of care should, therefore, be set to reflect the economically efficient level of accident prevention. Consequently, if the cost of precautionary measures is less than the likelihood of the injury multiplied by the magnitude of the loss, it is negligent to fail to take the precautionary measures. If, on the other hand, the cost of precautionary measures is more than the likelihood of the injury multiplied by the magnitude of the loss, it is not justifiable, economically, to take those measures, and the failure to take them is not negligent. This approach is consistent with much of the decision making in negligence cases, and the weighing of factors similar to those used in the economic analysis of the standard of care has been approved by the Supreme Court. [Note 33: See, for example, Jordan House Ltd. v. Menow (1973), [1974] S.C.R. 239 at 247. ] Nevertheless, most Canadian judges appear reluctant to reduce the standard of care to an economic cost-benefit analysis. [Note 34: The leading American decision championing the economic analysis of the standard of care, United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947), has rarely been cited in Canadian judgments.] The factors in that equation are difficult to quantify, and Canadian judges appear to be more comfortable with the conventional analysis with its impressionistic assessment of all the relevant considerations.

k) The Equity of the Case

Judges are reluctant to recognize their personal influence on the outcome of individual cases. The conventional wisdom is that judges find the facts and apply the law in a dispassionate and even-handed manner. The result is dictated by the law, not by the judge. Most people, however, recognize that, inevitably, other factors such as an intuitive sense of fairness and a visceral response to the facts of the case exert some degree of influence. Consciously or unconsciously, facts may be emphasized or marginalized and principles may be interpreted broadly or narrowly to accommodate the demands of justice in a particular case. It should not be overlooked that negligence law presents special pressures and opportunities for a judge (and a jury) to accommodate the equity of the case. The pressures are created by the serious plight of many plaintiffs, particularly those who have suffered catastrophic personal injuries, and the acute awareness of the trier of fact that almost all defendants are insured and will not be personally burdened by a finding of liability against them. The opportunities are provided by the open-textured, discretionary nature of the standard of reasonable care. The extent to which the equity of the case influences decision making depends in large part on individual judges and juries but it is a factor that should not be ignored.

l) Hindsight Bias

The judge or jury in a negligence case is asked to assess the risk that a reasonable person would have foreseen at the time of the accident and to determine how a reasonable person would have acted in the light of that foreseeable risk. The defendant must be judged by the foresight and care of a reasonable person, not by the hindsight of the trier of fact. The judge or jury, however, knows, with certainty, that the foresight and precautions of the defendant have proved to be inadequate. This knowledge may operate substantially to the advantage of the plaintiff. Psychological studies have shown that people "overstate the predictability of past events" [Note 35: J.J. Rachlinski, "A Positive Psychological Theory of Judging in Hindsight" (1998) 65 U. Chi. L. Rev. 571. Rachlinski provides an excellent description of hindsight bias and its influence on decision making in negligence.] and consistently overestimate what could have been foreseen before an event occurred. This is known as hindsight bias. There are some rules of negligence law which seek to minimize the risk of hindsight bias in applying the standard of care. The use of approved practice and custom in setting the standard of care is a moderating influence, and the trier of fact must not treat post-accident precautions as an admission of liability. Nevertheless, an elusive concept such as foreseeability, which is so integral to the determination of negligence liability, is highly susceptible to hindsight bias and may lead to a de facto strict liability in some borderline cases. It may also explain the almost prophetic foreseeability of some judges and the visceral discomfort that may be felt in making one's own assessment of what a reasonable person could have foreseen in marginal cases.