Social Host Lawsuit Involving "Disastrous" Injury Survives Summary Dismissal Application
Important reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating that given the right circumstances a ‘social host’ can be found negligent if one of their guests becomes impaired and subsequently causes a motor vehicle collision.
In this week’s case (Sidhu v. Hiebert) the three infant plaintiffs were injured in a motor vehicle collision. They were passengers in their parents vehicle which was struck by another motorist. There was evidence that the driver of the other vehicle was previously at a social party where he consumed alcohol. There was also evidence that he had blood alcohol content high enough that he “would have had to drink between 20 and 26 ounces of hard liquor to produce such a result“. The liquor was not necessarily all consumed at the social gathering.
One of the infant plaintiff’s was “disastrously injured” with his spinal cord severed in the high cervical area.
The lawsuit was launched alleging negligence against not only the motorists but also the social host. The social host brought an application for summary dismissal arguing that the 2006 Supreme Court of Canada judgement of Childs v. Desormeaux eliminated the possibility of success in social host lawsuits. Mr. Justice Johnston disagreed and dismissed the Defendant’s motion.
The Court held that given the right circumstances social host lawsuits can succeed but given some conflicts in the evidence presented this specific case was inappropriate for summary disposition. In dismissing the application Mr. Justice Johnston provided the following reasons:
[32] Whether a duty had been established on the face of it depended on the answer to this question: “What, if anything, links party hosts to third-party users of the highway?” (Childs, para. 24)…
[43] The court says at para. 31:
… However, where the conduct alleged against the defendant is a failure to act, foreseeability alone may not establish a duty of care. In the absence of an overt act on the part of the defendant, the nature of the relationship must be examined to determine whether there is a nexus between the parties. Although there is no doubt that an omission may be negligent, as a general principle, the common law is a jealous guardian of individual autonomy. Duties to take positive action in the face of risk or danger are not free-standing. Generally, the mere fact that a person faces danger, or has become a danger to others, does not itself impose any kind of duty on those in a position to become involved. [Emphasis in original.]
[44] I take from this passage that this aspect is also evidence-driven, in that whether there is a nexus between the parties will depend on the nature of any relationship revealed by the evidence. The passage also suggests that if there is more than a “mere fact that a person faces danger,” again revealed in the evidence, the general statement may not apply.
[45] The court in Childs summarized three situations where courts have in the past imposed positive duties to act: where a defendant has intentionally attracted and invited third parties to inherent and obvious risks created or controlled by the defendant; where there is a paternalistic, supervisory or controlling relationship between defendant and plaintiff; and where the defendant is engaged in a public function or commercial enterprise that implies responsibility to the public.
[46] I agree with counsel for Mr. Rattan that this case does not fit comfortably within any one of these three situations, but I also note that the Court in Childs at para. 34 said these were not strict legal categories, but serve to elucidate factors that can lead to positive duties to act.
[47] After pointing out that the three situations have in common the defendants’ “material implication in the creation of the risk or his or her control of a risk to which others have been invited,” and the reluctance of the law to infringe on the personal autonomy of someone in Mr. Hiebert’s position without good reason, the Court at para. 39 points out that someone in Mr. Rattan’s position might be expected or required by law to impinge on Mr. Hiebert’s autonomy only when he has a special relationship to the person in danger (not apparent here), or “… a material role in the creation or management of the risk.”…
[56] Because I am persuaded that this case should be decided on a full record of evidence at trial, I conclude that I should leave to trial the question of whether motorists can reasonably rely on a social host to not exacerbate an obvious risk by continuing to supply alcohol to an apparently impaired guest who the host knows will drive away from the party. It seems to me that justice requires that I allow the parties to develop the evidence and argument on a full trial.
[57] Mr. Rattan’s application is dismissed with costs in the cause.
This case is also worth reviewing for the Court’s discussion of whether a passenger in the alleged impaired driver’s vehicle could be found liable. The Social host brought ‘third party’ proceedings against the motorists passenger arguing that if they are liable then the driver’s passenger should be as well. Mr. Justice Johnston dismissed this allegation finding that even viewing the evidence in the most favourable light this allegation would fail. The Court provided the following reasons:
[65] If I assume for the purposes of this application that the evidence showed that Mr. Braun and Mr. Hiebert arrived together at the party in an intoxicated condition, both continued to drink Mr. Rattan’s alcohol to excess at the party, and both left together at the end, in a more intoxicated condition than when they arrived – with Mr. Hiebert driving and Mr. Braun as his passenger – is there a possibility that the first branch of the Anns test might be satisfied? My answer is no.
[66] The language in Childs that might allow a court to conclude that a social host owes a duty of care to highway users injured by a driver who becomes impaired as a guest of the host does not go so far as to admit the possibility of a duty on a companion or fellow traveler who does no more than observe the risky behavior of the drinking guest, and perhaps acquiesce to an extent in the risk by drinking with and then accepting a ride home from the party with the drunken guest.