2) Special Standards of Care

There are certain situations where the standard of the reasonably careful person is not applied to the defendant. This may have the effect of either lowering or elevating the standard of care. It is lowered in respect of some defendants who are incapable of discharging the normative standard of care, such as persons who are mentally ill, children, and persons with significant physical disabilities. The standard of care is raised when the defendant is a professional or in some other way represents herself as having an ability to exercise special care and skill.

a) Mental Disability

Few issues so starkly spotlight the tension between the compensatory and punitive functions of negligence law than the matter of a defendant's mental incapacity to appreciate and discharge her obligation of care. Compensation and loss distribution policies favour the application of the objective standard of care and the imposition of liability. On the other hand, there does not appear to be either good sense or justice in seeking to punish and deter persons who are mentally incapable of acting with reasonable care. Canadian law has traditionally resolved this conflict in favour of mentally impaired defendants.

The issue of a defendant's mental disability operates on two levels in negligence cases. It may render the defendant's actions involuntary or it may prevent a volitional defendant from complying with the normative standard of care. In both situations there is no liability in negligence.

Volition is an essential requirement for all legal liability. An involuntary act is one where the defendant's bodily movement is not directed by the defendant's conscious mind. A good example of an involuntary act is found in the American case of Stokes v. Carlson. [Note 36: 240 S.W.2d 132 (Mo. 1951).] The defendant was asleep in the back seat of a two-door car driven by the plaintiff. While asleep, the defendant pushed the driver's seat forward, causing the plaintiff to lose control of the car. The defendant was not held liable for the plaintiff's injuries because his actions lacked volition. The judge stated that

a contraction of a person's muscles which is purely a reaction to some outside force, . . . or the convulsive movements of an epileptic, are not acts of that person. So too, movements of the body during sleep when the will is in abeyance are not acts . . . Nowhere in cases dealing with the subject of torts do we find the suggestion that a person should be held responsible for injuries inflicted during periods of unconsciousness. [Note 37: Ibid. at 135-36.]

There are few Canadian negligence cases dealing with the volition of the defendant. The best-known is Slattery v. Haley. [Note 38: (1922), 52 O.L.R. 95 (C.A.).] In that case, the defendant driver of a car was suddenly taken ill and lost consciousness. The automobile left the road and killed a person on the sidewalk. The defendant was not held responsible for the death because of his lack of volition.

The leading case dealing with the impact of mental disability on the application of the standard of care to volitional defendants is the Ontario Court of Appeal decision in Buckley v. Smith Transport Ltd. [Note 39: [1946] O.R. 798 (C.A.).] Taylor, an employee of the defendant Smith Transport, crashed his truck into a tram and injured the plaintiff. It was established that Taylor, at the time of the accident, suffered from advanced syphilis of the brain. He was labouring under the delusion that his truck was remotely controlled by an electrical beam and that he was incapable of controlling the truck or stopping it. The Court held that, since Taylor's mental illness was such as to prevent him both from understanding the duty of care that rested upon him and from discharging that obligation, he could not, in fairness, be found negligent.

It should be noted, however, that the Buckley case was decided over fifty years ago, before compulsory third-party liability insurance of motor-vehicle owners and operators was introduced and before the power of liability insurance to spread accident losses among all the drivers and owners of motor vehicles was fully appreciated. The change in attitude of some judges since that time is evidenced by recent criticism of Buckley by an Albertan trial judge who commented:

I see no reason why a person whose mental state is such that he does not appreciate that he owes a duty of care to others while operating his motor vehicle, by reason of which he caused loss or damage to others, should not be subjected to the same criteria for establishing civil liability as anyone else, namely the objective standard of the reasonable driver. [Note 40: Wenden v.Trikha (1991), 116 A.R. 81 at 115, additional reasons at (1992), 1 Alta. L.R. (3d) 283 (Q.B.), aff'd (1993), 135 A.R. 382 (C.A.). The trial judge in Hutchings v. Nevin (1992), 9 O.R. (3d) 776 (Gen. Div.) also suggested that it is time for a re-examination of Buckley in the light of legislative and societal developments since that case was decided.]

This view is reflective of both American and English jurisprudence and seems more consistent with the compensatory policies that predominantly drive modern Canadian negligence law. [Note 41: A useful discussion of whether or not the standard of care should be relaxed in favour of mentally disabled defendants is found in L.N. Klar, Tort Law, 2d ed. (Scarborough, Ont.: Carswell, 1996) at 253-54.

b) Children

Children do not have the same knowledge, experience, or wisdom as adults to foresee danger and act accordingly. Mental capacity and the ability to perceive risk develop gradually at a child's own pace. The courts have been sensitive to the diminished capacity of children to take care and have developed a special standard of care applicable to them. A number of approaches were available. An objective standard of care would require a child to display the same degree of care as a reasonable child of like age. Alternatively, a subjective standard could be used, imposing liability only where the defendant child was aware of the danger she created. Canadian courts have rejected both of these approaches and have adopted a mixed objective/subjective test of liability. In McEllistrum v. Etches, [Note 42: [1956] S.C.R. 787.] the Supreme Court held that the standard of care applicable to a child was that of a child of similar age, intelligence, and experience as the defendant. The latter two elements are clearly subjective and a careful evaluation of the child and the circumstances surrounding her conduct is required. The Manitoba Court of Appeal decision in Joyal v. Barsby [Note 43: (1965), 55 D.L.R. (2d) 38 (Man. C.A.).] is illustrative. The Court applied the test to determine whether or not a six-year-old girl was guilty of contributory negligence. She was seriously injured when she failed to observe the defendant's oncoming motor vehicle when crossing a busy rural highway. The majority of the Court refused to find any contributory negligence on her part. It emphasized that she was not of above-average intelligence, she was not a city child who would have had more experience with motor vehicle traffic, and she was distracted by a fog horn sounded by a large semi-trailer truck that had passed a few seconds earlier in the opposite direction from which she was hit. She had acted no differently from other children of her age, intelligence, and experience. The dissenting judge was influenced by the facts that she had been carefully instructed by her parents on how to cross the highway, she had successfully crossed it on previous occasions, and she lived close to it.

There is no fixed age below which a finding of negligence cannot be made, but children of tender years (under five) have little capacity to appreciate danger and there is virtually no chance that children of that age will be held to be negligent. If an older child is undertaking an activity normally carried on only by adults, however, it is likely that the adult standard of care will be applied to her. [Note 44: See, for example, Ryan v. Hickson (1974), 7 O.R. (2d) 352 (H.C.J.); and McErlean v. Sarel (1987), 61 O.R. (2d) 396 (C.A.).] There is a good reason for this exception to the lower standard of care. When children are performing activities typical of children, members of the public have notice of the presence of children and can protect themselves from any potential danger arising from their immaturity. When children are performing adult activities, such as driving a power boat, a sea-doo, a dirt bike, or an all-terrain vehicle, members of the public reasonably expect it to be under the control of an adult and they adjust their conduct accordingly. The courts protect that reasonable expectation by applying the standard of the reasonably careful adult.

Careful consideration must be given to a variety of factors before any decision is made to sue a child. A child is unlikely to have sufficient assets to discharge a judgment. A child may, however, have coverage under her parents' liability insurance policy, and there is the option of keeping the judgment alive by periodic re-registration until the child is an earner or acquires assets. There is also a possibility that parents may volunteer to pay off the award.

Parents are not vicariously liable for the torts of their children. But they are under a personal duty to take reasonable care to supervise and control their minor children and they may be liable for loss caused by a failure to discharge that obligation. There is, however, renewed interest in the idea of vicarious liability of parents. It has been prompted by a rise in juvenile gang activity and by an increase in juvenile crime, such as car theft, shoplifting, and the defacement of private and public property with graffiti. It is argued by some that vicarious liability may provide an incentive for parents to exercise more control and supervision over their children. Manitoba has taken a step in that direction. The Parental Responsibility Act [Note 45: S.M. 1996, c. 61.] imposes civil liability on parents for the intentional destruction, damage, or taking of property by their children up to a maximum sum of $5,000. This is, however, not a true vicarious liability. Proof by the parents that they exercised reasonable supervision over their child and that reasonable efforts were made in good faith to discourage the child from the kind of activity that gave rise to the property loss amounts to a complete defence. The Act, therefore, imposes a rebuttable presumption of parental fault in respect of deliberate property damage caused by their child. [Note 46: Some provinces have legislation that imposes vicarious liability in narrow circumstances. The British Columbia School Act, R.S.B.C. 1996, c. 412, s.10, for example, makes parents liable for damage to school property; see Coquitlam, School District No. 43 v. D.(T.W.) (1999), 170 D.L.R. (4th) 107 (B.C.C.A.).]

c) Physical Disability

The law accommodates those persons who suffer from a serious physical disability with a standard of care that is compatible with their condition. The blind are not required to see, the deaf are not required to hear, and paraplegics are not required to walk. [Note 47: 1 A.M. Linden, Canadian Tort Law, 6th ed. (Toronto: Butterworths, 1997) at 134.] This advances the policy of encouraging the full integration of disabled persons into the mainstream of community activity. Public safety is not unduly compromised because there is a corresponding obligation on the part of disabled or ill persons to adjust their conduct so that no avoidable risk is created and to refrain from activities that are beyond their capacity to perform safely.

This adjustment of the standard of care appears to be applicable only to major physical disabilities. No dispensation from the usual standard of care is provided to persons who are short-sighted, poorly coordinated, slow, elderly, or arthritic. It is not easy to discern the principle underlying this distinction. It may be good policy to draw a line between, on the one hand, obvious physical disabilities that alert members of the public to the fact that a person has a physical limitation affecting her ability to take care and, on the other, concealed physical disabilities of which members of the public have no notice. This does not, however, explain the courts' willingness to adjust the standard for the deaf and their reluctance to adjust the standard of care for elderly persons.

There are also obligations to take precautions to prevent foreseeable injuries to the disabled. For example, those persons who are responsible for public sidewalks and commercial buildings to which members of the public are admitted must take care that there are no defects that would present a special danger to blind persons. [Note 48: Haley v. London Electricity Board (1964), [1965] A.C. 778 ( H.L.).]

d) Superior Skill and Knowledge

When applying the standard of care, a court must attribute a reasonable amount of knowledge, skill, and life experience to the reasonable person. It is assumed, for example, that reasonable people know that propane gas is highly inflammable, that worn tires are dangerous, that children are mischievous, that alcohol impairs judgment, and that acid burns. Through the course of the twentieth century, increased access to information and skill, rising literacy rates, and the increasing sophistication of modern consumer goods and services have probably raised the level of knowledge and skill of the reasonable person. Nevertheless, it is not always easy to determine the normative information and skill that should be attributed to the reasonable person. In Cone v. Welock, [Note 49: [1970] S.C.R. 494. ] for example, the defendant guest at a hunting lodge felt and smelled fuel before using it to start a fire in his room. He mistook gasoline for fuel oil and the lodge was damaged by fire. The Supreme Court held that a reasonable person cannot readily distinguish fuel oil from gasoline and that reasonable care had been taken by the defendant.

A higher standard of care is applied to those persons who represent themselves as having special skill and knowledge that allow them to perform tasks that are normally beyond the capacity of the ordinary person. The public may reasonably expect such people to exercise a degree of skill and knowledge commensurate with that representation. An elevated standard of care applies not only to members of the professions but also to business, commercial, and trades people such as automobile mechanics, builders, and electricians. The standard of care is that of the reasonably prudent and competent member of the particular profession or vocation to which the defendant belongs. [Note 50: An exception has recently been made in respect of volunteer firefighters by a majority of the Newfoundland Court of Appeal in Hammond, above note 24. The Court adopted a subjective standard of care requiring volunteer firefighters to do their best in the circumstances.]

Many of the rules relating to professional liability have arisen from malpractice litigation between physicians and their patients. This is not surprising. The practice of medicine is one of the oldest professions, and medical accidents and unsuccessful treatments are a regrettable, but inevitable, feature of health care. The family physician is, predictably, held to the standard of the reasonably competent and prudent member of that branch of the medical profession. This standard of care is probably uniform across Canada. There is little support for a locality rule that would permit variations in the standard of care according to the location of the physician's practice. There is no good reason to tolerate a disparity of care, skill, and knowledge between family physicians in rural or remote areas of the country and those in urban centres. The university-based medical education of physicians is reasonably consistent across the country, there are opportunities for continuing education, and modern communication systems facilitate the appropriate updating of medical knowledge and consultation. A physician in Toronto may have more immediate access to sophisticated hospitals, more specialist support, and more treatment options than a physician in rural Saskatchewan, but the uniform standard of care is sensitive to these variations, being a standard that is applied to the circumstances of each case. Circumstances may vary greatly but the care, skill, and knowledge of family physicians should be the same.

Courts are similarly unwilling to excuse poor medicine on the ground of inexperience. Inexperienced professionals cause more than their fair share of accidents but that is no reason to depart from the normative standard of care. The public's expectation of competent medical care from all qualified persons must be protected.

Like many professions, medicine has its areas of specialist practice. Specialists must comply with the elevated knowledge, skill, and care of the reasonable member of their specialty whether it is orthopedic surgery, cardiology, or obstetrics. This medical hierarchy also requires lesser-qualified physicians to be sensitive to their own limitations and to refer patients to specialists and to consult in a manner that is consistent with good medical practice.

Courts have been careful not to set unrealistically high standards for physicians. The standard is that of reasonable care and judges are sensitive to the fact that medical practice carries no guarantee of success. Mistakes are made, inherent risks manifest themselves, and treatments fail. Error of judgment, misadventure, and the failure of treatment are not inconsistent with due care. It is, nevertheless, often difficult for a judge or jury to determine whether or not reasonable care was taken by a physician. Consequently, considerable reliance is placed on expert witnesses (highly qualified and experienced physicians who have no involvement in the litigation) to assist the trier of fact in understanding technical matters and in identifying the accepted and approved practice of the profession. As was noted earlier, compliance with standard medical practice in complex, scientific, and technical matters is conclusive of due care in medical cases.

Many of the principles that have been developed in medical malpractice cases are, with appropriate adjustments, readily transferrable to other professions and vocations.