Industry standard does not always set the standard of care

In displacing a claim of negligence it is common for a defendant to claim that they lived up to industry standard.  That usually is sufficient to displace a claim on the basis that the standard of care has been met.  But having said that, if the industry standard is obviously dangerous the standard of care may not have been met.

Today’s decision in Zsoldos v. Canadian Pacific Railway Company, 2009 ONCA 55 makes this last point clear saying:

[30]          The decision of the Supreme Court in ter Neuzen v. Korn (1995), 127 D.L.R. (4th) 577, deals with the question of standard of care in the face of an assertion that the defendant met the industry standard.  In that case, at para. 39, Sopinka J. adopted an excerpt from Professor Fleming’s treatise, The Law of Torts, 7th ed. ( Sydney: Law Book Co., 1987), at p. 109:

Conformity with general practice, on the other hand, usually dispels a charge of negligence.  It tends to show what others in the same “business” considered sufficient, that the defendant could not have learnt how to avoid the accident by the example of others, that most probably no other practical precautions could have been taken, and that the impact of an adverse judgment (especially in cases involving industry or a profession) will be industry-wide and thus assume the function of a “test case”.  Finally, it underlies the need for caution against passing too cavalierly upon the conduct and decision of experts.

All the same, even a common practice may itself be condemned as negligent if fraught with obvious risk. [Emphasis added.]