The Supreme Court decision in Galaske V. O'Donnell [Note 123:

[1994] 1 S.C.R. 670 [Galaske].] provides a useful illustration of this phenomenon. In that case, the defendant driver of a truck was accompanied by an adult passenger and the passenger's six-year-old son. The defendant took no steps to make sure that the plaintiff child was using an available seat belt. In the subsequent collision with another vehicle, which was not caused by the defendant's negligence, the plaintiff suffered injuries that would have been less severe if he had been wearing his seat belt. The Supreme Court held that the defendant owed a duty of care to the plaintiff. The members of the Court expressed the duty of care in different ways. Cory J. formulated the duty in a way that foreshadowed and included some aspects of the standard of care issue. He said, "[T]here is a duty of care resting upon a driver . . . to ensure that the seat belts of young passengers are in place. That duty exists whether or not a parent of the child is in the car." [Note 124: Ibid. at 689. ] LaForest J. stated that "the . . . driver owed a duty of care to take some action concerning the [plaintiff's] use of a seat belt." [Note 125: Ibid. at 675-76.] McLachlin J. and Major J., the latter of whom dissented, more clearly separated the two concepts, stating simply that a driver is under a duty of care to his passengers, leaving all questions of the appropriate conduct to be decided by an application of the standard of care.

In its recent decision in Ryan V. Victoria (City) [Note 126:

Above note 31.] the Supreme Court endorsed the approach of McLachlin and Major JJ. and called for a more disciplined approach to this issue. It recognized that occasionally courts have framed the duty issue in terms of its degree and content and that this complicates the duty inquiry with matters that are more properly handled in the standard of care inquiry. The Court emphasized that the duty of care is determined by an application of the Anns test and the standard of care issue involves a separate determination of the conduct of a reasonable person charged with that duty. A clear distinction should be maintained between the two inquiries.

CHAPTER 2, NEGLIGENCE: BASIC PRINCIPLES

F. Remoteness of damage

The courts have consistently held that a defendant is not liable for every consequence of a breach of a duty of care. There are situations where the loss is so different from what one might have expected, so disproportionate to the magnitude of the fault, or so fluky or bizzare that it is unfair to hold the defendant legally responsible for it. In such cases, the courts may resort to the second control device of negligence law and hold that the loss is too remote from the negligent act to warrant liability. The role of remoteness of damage, like that of duty of care, is to contain liability within fair and reasonable boundaries. A variety of concepts might be used to perform this task. Liability could be restricted to damage that is a natural, direct, probable, possible, immediate, foreseeable, or close consequence of the negligent act. All of those terms indicate the need for some proximate connection between the negligent act and the damage. No single concept, however, can easily or fairly resolve the many difficult issues that arise in litigation. The true determinants of decision making are more likely to be current judicial policy and an intuitive and impressionistic sense of fairness about where to draw the line on the defendant's responsibility than any single rule. Nevertheless, a great deal of judicial energy has been expended over the choice and interpretation of the rule of remoteness of damage in negligence.