When Can a Third Party Be Responsible for Preventing Harm Intentionally Caused by Another? The Supreme Court of Canada Weighs in
February 27th, 2010
If someone is injured/killed intentionally by someone else can a third party be held civilly liable for failing to prevent the harm? While the answer to this question turns heavily on the facts the answer can be yes and earlier this month the Supreme Court of Canada released a decision discussing this complex area of personal injury law.
In Fullowka v. Pinkerton’s of Canada Ltd. nine workers were killed in the course of a contentious labour dispute. During the bitter strike one of the strikers “evaded security and surreptitiously entered the mine. He set an explosive device which, as he intended, was detonated by a trip wire, killing nine miners.”
The survivors of the dead miners brought a lawsuit against various parties including the mine’s owners, their security firm and the territorial government claiming damages for “negligently failing to prevent the murders“.
The lawsuit largely succeeded at trial but was overturned by the Court of Appeal. The Supreme Court of Canada ultimately sided with the Court of Appeal but before dismissing the case highlighted some important legal principles addressing the need to take reasonable steps in certain circumstances to prevent foreseeable intentionally inflected harm at the hands of others. Some of the highlights of the Court’s discussion were as follows:
The analysis turns on whether the relationship between the appellants and the defendants discloses sufficient foreseeability and proximity to establish a prima facie duty of care and, if so, whether there are any residual policy considerations which ought to negate or limit that duty of care… The analysis must focus specifically on the relationships in issue, as there are particular considerations relating to foreseeability, proximity and policy in each…
 In my view, the relationship between the murdered miners and Pinkerton’s and the government meets the requirements of foreseeability and proximity such that a prima facie duty of care existed. I also conclude that these prima facie duties are not negated by policy considerations…
 In cases of this nature, the law requires close examination of the question of proximity. The inquiry is concerned with whether the case discloses factors which show that the relationship between the plaintiff and the defendant was sufficiently close and direct to give rise to a legal duty of care, considering such factors as expectations, representations, reliance and the property or other interests involved…. Proximity is not confined to physical proximity, but includes “such close and direct relations that the act complained of directly affects a person whom the person alleged to be bound to take care would know would be directly affected by his careless act”…
 The Court discussed proximity in detail in Childs, at paras. 31-46. In Childs, as here, the proposed duty was to take care to prevent harm caused to the plaintiff by a third party; in other words, what was proposed there was a positive duty to act even though the defendant’s conduct had not directly caused foreseeable physical injury to the plaintiff. The Court noted that there are at least three factors which may identify the situations in which the law has recognized such duties (paras. 38-40). The first is that the defendant is materially implicated in the creation of the risk or has control of the risk to which others have been invited. The second is the concern for the autonomy of the persons affected by the positive action proposed. As the Chief Justice put it: “The law … accepts that competent people have the right to engage in risky activities … [and] permits third parties witnessing risk to decide not to become rescuers or otherwise intervene” (para. 39). The third is whether the plaintiff reasonably relied on the defendant to avoid and minimize risk and whether the defendant, in turn, would reasonably expect such reliance….
The relevant question is whether the miners reasonably relied on Pinkerton’s to take reasonable precautions to reduce the risk. The Court of Appeal found that was their reasonable expectation. This reasoning, in my view, supports rather than negates the existence of sufficient proximity. The fact that, as the Court of Appeal noted, any higher expectation on the miners’ part would have been unreasonable was not relevant to the analysis.
 Pinkerton’s must have shared the miners’ expectation. It was there to protect property and people. The whole point of its presence was to help secure the site so that the mine could continue to operate. The miners who continued to work during the strike made up a well-defined and identifiable group. Pinkerton’s surely ought to have expected that the very people it was there to protect would rely on it to exercise reasonable care in doing so.
 Pinkerton’s also undertook to exert some control over the risk..Pinkerton’s undertook to exert some control over everyone who came onto the property, including Mr. Warren…
 I conclude that the reasonable expectations of both the miners and Pinkerton’s as well as Pinkerton’s undertaking to exert some control over the risk to the miners supported the trial judge’s finding of proximity…
 The concern about indeterminate liability is not valid here. This policy consideration has often held sway in negligence claims for pure economic loss. But even in that context, it has not always carried the day to exclude a duty of care. The concern is that the proposed duty of care, if accepted, would impose “liability in an indeterminate amount for an indeterminate time to an indeterminate class”, to use the often repeated words of Cardozo C.J. in Ultramares Corp. v. Touche, 174 N.E. 441 (N.Y. 1931), at p. 444. At the root of the concern is that the duty, and therefore the right to sue for its breach, is so broad that it extends indeterminately. In this sense, the policy concern about indeterminate liability is closely related to proximity; the question is whether there are sufficient special factors arising out of the relationship between the plaintiff and the defendant so that indeterminate liability is not the result of imposing the proposed duty of care: see, e.g., Canadian National Railway Co. v. Norsk Pacific Steamship Co., ,  1 S.C.R. 1021, at p. 1153. What is required is a principled basis upon which to draw the line between those to whom the duty is owed and those to whom it is not: see, e.g., Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., ,  3 S.C.R. 1210, at para. 64, per McLachlin J. (as she then was).
 I do not see this as a difficulty here and, as a result, I do not think that the proposed duty of care exposes the government to indeterminate liability. What is in issue is liability for physical injury to miners caused by an explosion in a mine which, it is alleged, would have been prevented had the government taken reasonable care in discharging its statutory duties in relation to mine safety. The duty is to the finite group of miners working in the mine which the inspectors had inspected repeatedly. The potential liability is no more indeterminate than in the building inspector cases I reviewed earlier.
While this case was highly factually specific the legal principles discussed by the Supreme Court of Canada can be applied to more commonly seen fact patters. One example of intentional harm at the hands of others are the unfortunate cases involving sexual abuse. Where priests, teachers or other adults in authority sexually abuse young victims liability may extend beyond the person committing the crime. In certain circumstances religious hierarchies have been found liable for sexual abuse committed by priests and school boards have been found liable for abuse committed by teachers.
The Supreme Court of Canada’s detailed reasoning in this case is welcome for anyone advancing a personal injury lawsuit involving an intentional harm seeking to extend liability further and I suggest that any Canadian lawyers prosecuting such a claim familiarize themselves with this judgement in full.