Proximity

The issue of proximity is central to tort law. Yesterday's decision in Fullowka v. Pinkerton's of Canada Ltd., 2010 SCC 5 has a helpful few paragraphs on proximity which are set out below:
 

[25]                          The appellants' claims against Pinkerton's and the government are based on their alleged failure to protect the murdered miners from danger created by Mr. Warren's intentional wrongful acts. The case, therefore, is concerned with omissions by these defendants to prevent harm to the miners caused by another.

[26]                           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: Hill, at paras. 23, 24 and 29.  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":  Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), at p. 581.

[27]                          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.
James Morton
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