Lawsuit involving negligence

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In a negligence lawsuit, the plaintiff must establish that the defendant owes him an obligation of care under the law. In addition, there should be evidence that the defendant knew or should have known that behaving negligently would harm the plaintiff. According to Lord Atkin's ruling in Donoghue v. Stevenson (1932), every individual gives a duty of care to their neighbor. (Smith & Burns, 1983). Everyone is required to exercise due caution to avoid doing anything that could theoretically endanger their friend. The issue of who the law regards as a neighbor emerges. A neighbor is a person who is so closely and directly affected by my actions. Therefore, a person owes the other a duty of care if such a person could reasonable have foreseen injuring the other person.

Childs v. Desormeaux

Social hosts where alcohol is served do not owe a duty of care to the public users of the highways. This was established in Childs v. Desormeaux a case on appeal from the Ontario court of justice between the plaintiff or the apparent Zoe Childs, Andrew Childs, Pauline Childs, Heather Lee Childs and Jennifer Christine Childs and the defendant or the respondent, Desmond Desormeaux, Julie Zimmerman and Dwight Courrier (Kelly, 2006). The interveners of the case included Mothers Against Drunk Driving (MADD Canada) and Insurance Bureau of Canada. Zimmerman and Courier hosted a Bring Your Own Booze New Year’s Eve party at their house. Desormeaux was one of their guests who had too much to drink. After the party, he drove off in his car and the hosts did not notice anything unusual since Desormeaux had a history of driving while intoxicated. He drove his vehicle into oncoming traffic and hit an oncoming vehicle head on killing on of the passengers and seriously injuring the other three among them Childs. Childs brought an action against the hosts on the grounds that they owed him a duty of care. For the hosts to be found guilty, Childs should prove that they owed him a duty of care (Kelly, 2006). The court needs to establish whether hosts of private social event owes a duty of care to the public using the highways for harm caused by their guests.

Ruling and Analysis

The appeal was dismissed on the grounds that host of private parties do not owe a duty of care to passers by or to the public on the highways for actions performed by their guests who happens to be intoxicated. However, the courts have a jurisdiction to recognize or establish new duties of care which does not conflict with the public policy. The court uses the Ana’s test which involves two stages to determine whether there exists a new duty of care. Ann’s test, which was adopted by the Supreme Court of Canada in Nielsen v. Kamloops (Feldthusen, 1984). The two stages in the test include:

Firstly, the court needs to analyse the relationship between the parties involved and determine if there was proximity (Feldthusen, 1984). Proximity exists if the person affected was closely and directly affected by the actions of the other person which he knows or ought to know that they will reasonably hurt the other person. In other words, proximity is all about applying the neighbor principle and establish if the plaintiff qualifies to be a neighbor (Smith & Burns, 1983). It is a general rule that every person owes a duty of care to his or her neighbour and a neighbour is any person who is closely and directly affected by your actions that you can reasonable foresee injuring the neighbor.

The second stage after establishing proximity between the parties, the n the court should determine that there is no other policy consideration to negate or limit the scope of duty, the class of people to whom the duty is owed or the damages that the defendant should pay to the plaintiff if he is found guilty (Feldthusen, 1984).

Application of Ann’s test in Childs v. Desormeaux

Stage 1

The proximity that needs to be established for new duties of care in the case is not established. Firstly, the injuries that were sustained by the apparent were not foreseeable as per the facts established in the case. The trial judge did not find that the host knew or ought to have known that their guest who left the party driving in his car was actually impaired (Kelly, 2006). Although the hosts were aware if Desormeaux’s history of drinking and driving, there is no relationship between taking alcohol and impaired driving does not make impaired driving and the resulting risk to another motorist reasonably foreseeable (Blom, 2016). Besides, there was no evidence that the hosts could have competently affirmed at the time when he was leaving the party he exhibited signs of drunkenness or looked inebriated to raise the suspicions that there is a foreseen potential for danger on Desormeaux. It is practically impossible to ascertain liability by lack of duty of care to an individual that commits acts of commission or omission that are independent of the host without demonstrating the possibility of a participant in the party to engage in uncalled for activities at a different location.

It cannot be possible to predict what an individual might do especially when it comes to persons who have an unpredictable behaviour that would not be identified at the time they leave the premises of the host. The liability of duty of care initiates the need of a high-level threshold for proof that indeed the host was charged with maintaining a duty of care on the conduct of their visitors especially in cases where the visitor has a history of careless behaviour (Feldthusen, 1984). There was no way that the hosts would have either limited or prevented Desormeaux from the behaviour that he exhibited later after leaving the party. The responsibility of the hosts does not cover the third parties that might, unfortunately, suffer injury or loss resulting from the actions of omission or commission by persons that were invited by the hosts.

Stage 2

If the prosecution and plaintiff establish the possibility of identifying chances of foreseeability on the part of Desormeaux actions, there was no positive duty of care on the hosts (Kelly, 2006). The hosts in the context of the cause are equally charged with the principal responsibility for ensuring they maintain a clear framework regarding their obligations while hosting the party as ascertaining the next course of action of a visitor does not fall within the purview of their responsibilities (Bridgeman & Jones, 1994). The hosts are not competently trained to determine the level of intoxication that comes with all the members that are invited to the party (Blom, 2016). The ability to determine the level of which the person is intoxicated and that they pose a significant danger to themselves and other road users do not lie with the hosts especially now that they are not professionally trained to determine such.


According to the court, there are three instances in which proximity could be recognized to establish a duty of care between strangers, for example; parent-child or teacher-student relationships that require supervision due to the extent of dependence and vulnerability of the plaintiffs. Another case would be involving a defendant who happens to be a commercial host that serves alcohol to the public (Feldthusen, 1984). In this situation, the person engaged in the activity owes the plaintiff a duty of care to stop serving them when any signs of intoxication are apparent or to prevent any foreseeable cause of harm in the protection of the public interest. Last but not least a situation where a defendant intentionally attracts and invites third parties to an inherent and obvious risk that he or she has created or controls.

The plaintiff should be charged with the burden of ascertaining whether there was anything that will expressly link the host to have directly contributed in connivance with the defendant to injure the defendant (Kelly, 2006). It was only when the defendant was a part of creating an occurrence of harm or has a distinguishable relationship with the plaintiff then it presents a case for liability of owing a duty of care to the guest. The court noted that the defendants in the case do not fall under any of these circumstances and therefore there was no justification of the recognition of a positive duty of care (Blom, 2016). I agree with the court’s decision as to not establishing a duty of care owed by the defendants to the plaintiff, the standard requirement for Ann's test were not satisfied, and there is no proximity between the parties. We also need to note that this case differs from commercial drinking hosts that hold a high threshold of responsibility towards the conduct of their clients (Kelly, 2006).

In Stewart v. pettie the plaintiff sued the bar, he was in after being involved in a car accident and seriously injuring himself on the basis that the defendants owed a duty of care to recognize when a guest is intoxicated and undertake to ensure they leave safely (Bridgeman & Jones, 1994). The precedent in the case gives us a clear example of how Commercial hosts come under a different category, commercial hosts have a better experience and are trained and paid to monitor customers. The law expects that they institute measures that will provide a competent, comprehensive framework of ensuring they control the conduct of their clients (Blom, 2016). The host should prevent any actions by an intoxicated individual where the commercial hosts overlooked his condition at the time of departure. Commercial hosts are also obliged to act with regards to the liquor control act since the sale and consumption of alcohol are strictly regulated by public policy. Staffs are trained in recognizing how drunk a person is and the safety considerations on the selling alcohol thus there is a duty of care owed between commercial hosts and guests (Blom, 2016). Their fore implies that it would be much more difficult for us to compare and draw a useful link between a commercial establishment and party hosts since a social host does not operate on a commercial basis, nor do they get any profit in the process (Kelly, 2006). A decision to recognize a new duty of care, in this case, would open courts to unlimited scope of claims, which would hinder our legal system's approach to finding solutions sustainably.

The development of new duties of care (modified Ann's Test) about uninsured defendants consists of the following three stages: increase of new claims, ability to cope with the increase and the impact of modifying Ann's test on the cost of insurance or availability. The first stage, an increase of new claims, questions the potential increase in new claims against commercial hosts and their liabilities. Would imposing liability on a commercial host and insurance companies open the ‘floodgates'? If there is a creation of new obligations, the door is open, between a guest and host, which will impose a force of potential liability (Blom, 2016). The second stage questions the Court's ability to handle the surging number of claims. Will the court be able to cope with the volume of cases? With the significant number of people making claims, the ability for the Court to identify the most priority cases will be difficult. Thirdly, if the court can handle the load, what then will be the effect it has on the cost of insurance and availability (Blom, 2016). Modifying the duty of care will lead to the potential increase in the cost of insurance along with availability, which will only aid the problem of uninsured defendants.

Moreover, to rebuttal the ‘floodgates' argument the Court modified the test. The Court's two-stage process for this modification is composed of the following: the imposition of a duty of care acting as an incentive for increasing the standards and the impact on the allocation of resources. The decision for these changes initially stemmed from the Cooper v. Hobart case; which proved the incompatibility of Ann’s Test.


In conclusion, it is important for the court to take cognizance of the challenges that come with decision making when it comes to a case where it was difficult to ascertain the merits or otherwise of a given case. The courts should concentrate on observing the provisions of the public policy in that should guide their rulings and determination in a particular instance (Bridgeman & Jones, 1994). Although public policy can sometimes negate a decision, such a situation did not come up in the case of child’s v desormeaux (Blom, 2016). Social hosts do not owe a duty of care to third parties; this decision was reached after examining the relationship between the plaintiff and the defendant closely. It was evident that the court cannot allow the imposition of a high threshold on the social hosts to monitor and determine the conduct of the guests they cannot control outside their premises (Bridgeman & Jones, 1994). A decision to recognize a new duty of care would not do justice to the social hosts since they were not in the position to control or influence the conduct of the defendant. Guests are expected to maintain reasonable care to keep the safety of themselves and others; this goes in line with the common law's general respect for individual autonomy (Blom, 2016). Liability by having an essential duty of care must remain on a person that has an established influence and control of the actions and conduct of the defendant. It puts the social host in a precarious condition if they are charged with liability on the duty of care towards guest that perform independent actions outside their premises.


Blom, J. (2016). Do We Really Need the Anns Test for Duty of Care in Negligence?. Alberta L. Rev., 53, 895-1031.

Bridgeman, J., & Jones, M. A. (1994). Harassing conduct and outrageous acts: a cause of action for intentionally inflicted mental distress?. Legal Studies, 14(2), 180-205.

Feldthusen, B. (1984). City of Kamloops v. Nielsen: A Comment on the Supreme Court's Modest Clarification of Colonial Tort Law. McGill LJ, 30, 539.

Kelly, F. (2006). Before You Host a Party, Read This: Social Host Liability and the Decision in Childs v. Desormeaux. UBCL Rev., 39, 371.

Smith, J. C., & Burns, P. (1983). Donoghue v. Stevenson—The Not So Golden Anniversary. The Modern Law Review, 46(2), 147-163.

July 07, 2023

Law Life



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