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NEGLIGENCE - Duty and standard of care - Foreseeability and remoteness

Friday, May 01, 2020 @ 9:17 AM  


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Appeal and cross-appeal from a judgment apportioning liability for injuries caused during a police pursuit of a stolen vehicle. A car dealership employee left a vehicle unattended on dealership property with the engine running for 40 minutes. Bolton, now deceased, stole the vehicle. Police used the vehicle’s internal GPS to locate it and conducted a pursuit that resulted in three collisions involving serious injuries to a police officer and a bystander. The officer and bystander alleged negligence by Bolton, the dealership and the employee. The bystander further alleged negligence by the police pursuers and vicarious liability on the part of the provincial Minister of Justice. The federal Crown also sought compensation from Bolton for the damage to the police vehicles. The trial judge found that the dealership and its employee were negligent in a manner that caused the collisions. They were found 15 per cent liable. Bolton was found at fault for the collisions and apportioned 70 per cent liability for the bystander’s action, and 85 per cent liability for the actions by the Crown and the officer. The provincial Minister was found vicariously liable for the officers’ pursuit and thus apportioned 15 per cent liability in the bystander’s action. The dealership and its employee appealed. The provincial Minister cross-appealed.

HELD: Appeal allowed, and cross-appeal dismissed. There was some evidence of foreseeability of injury to the public resulting from stolen vehicles that supported the establishment of a duty of care owed by the dealership and its employee. However, the foreseeability analysis was tempered by proximity factors, and thus did not extend to include a risk of injury arising from active police pursuit of a stolen vehicle where a thief drove away safely from the location of the theft. Therefore, the dealership and its employee did not owe a duty of care to the police, bystander or Crown plaintiffs, as their losses did not occur during the theft or immediate flight from the flight location. With respect to the cross-appeal, the evidence was sufficient to support the conclusion that police acted negligently and contrary to policy in pursuing Bolton despite an order to cease. The evidence supported a common sense inference that Bolton’s negligent driving at the time of the collision with the bystander was caused in part by the police pursuit.

Provost v. Bolton, [2020] B.C.J. No. 384, British Columbia Court of Appeal, A.W. MacKenzie, G.B. Butler and DeWitt-Van Oosten JJ.A., March 12, 2020. Digest No. TLD-April272020009