Intentional Damage

Claims for personal injury or property damage caused by intentional acts present unusual challenges. A judgment against the person who committed the act may be easy to get, but impossible to collect.

One way around this is to try to prove that some person or organization other than the perpetrator should be held responsible for the loss. Is there a parent or an employer that might be vicariously liable? Is there a security company, an occupier of the premises where the act was perpetrated or a public authority such as the police that could have deterred the perpetrator or protected the victim? Such potential defendants are not only more likely to have assets, the claim against them will not be for an intentional tort and so their insurer, if they have one, may be obliged to respond.

Liability insurers of homeowners, businesses or public bodies face the prospect of having such a claim land on their desk. When will your insured be held liable for a loss that was intentionally caused by someone else?

This problem was the crux of the lawsuits that arose from a particularly horrendous and tragic event — the murder of nine miners at the Giant Mine near Yellowknife. The murders were committed in the fall of 1992 while the mine — and indeed the whole city — was embroiled in a bitter and volatile strike. By the time the perpetrator, Roger Warren, was convicted on nine counts of second degree murder the Workers’ Compensation Board of the Northwest Territories, which paid benefits to the miners’ dependents, had already exercised their right of subrogation and brought a civil action in their names.

In addition to Warren, the Board sued, among others, the owner of the Mine (Royal Oak), the security company at the Mine (Pinkerton’s), a union (the CAW) and the public authority with the job of promoting occupational health and safety in the Mine (the Government of the Northwest Territories). After a 10 year lawsuit and an eight-month trial, the trial judge found all of these defendants jointly liable for over $14,000,000 in damages and costs.

Ruling overturned

The Court of Appeal of the Northwest Territories overturned the trial judge in a decision handed down on May 22, 2008. At the trial level the defendants “were held liable, in one way or another, for failing to take reasonable steps to prevent Warren from committing his tort,” but the Court of Appeal noted that such a basis for liability would depend on “the existence of a legal duty of care on those appellants to take reasonable care to prevent Warren from committing that tort.” The fact that a duty to prevent someone else from committing a tort is a rare and exceptional one, was the principle reason for overturning the trial decision and dismissing the case against all of the defendants who appealed.

Justifiable circumstances

While also dealing with issues of vicarious liability for intentional acts, the more extensive and unique guidance in this decision is on the difficult issue of what circumstances will justify holding someone directly liable for damage intentionally caused by someone else. The decision is particularly useful as it not only deals with several different kinds of potential defendants, but also sets out the principles that should govern the determination of when a defendant may have a duty to prevent someone else from committing a tort.

The Court of Appeal made it very clear that it is only in exceptional circumstances that such liability will be justified. “The starting point is that tort liability is primarily individual and personal. As a general rule everybody is responsible for his or her own torts, but no person is responsible for the torts of others.”

Two themes

After reviewing a number of prior decisions, the Court of Appeal found two themes; recurrent situations in which a duty of care may arise to prevent intentional acts.

The first category of cases is that in which there is “special relationship” between the defendant and the plaintiff. The test for a special relationship requires more than just the proximity that gives rise to a duty of care in general negligence cases. “The “special relationship” will usually contemplate a situation where the plaintiff is “not competent,” or cannot withdraw from the danger created by the immediate tortfeasor, or where the ancillary tortfeasor has both a relationship with the plaintiff and knowledge of the danger, but the plaintiff does not have that knowledge,” the Court found. An example of such a relationship and duty would be by a parent to protect a child from sexual abuse by the other parent.

The second category is cases in which the person who commits the act is under another defendant’s ‘control.’ For this factor to be met there has to be both a legal right to control and control in fact, such as a prison guard over a prisoner in custody or a hospital over a mentally ill patient.

Foreseeability

While not overturning the trial judge’s finding that the murders were “foreseeable,” the Court of Appeal indicated that this test also has a higher standard in these kinds of cases. Foreseeability becomes more difficult when deviant human behavior, including criminal acts, is what would have to be foreseen. “In recognition of the problems of holding one defendant responsible for the torts of another, some cases have required an enhanced level of foreseeability in these situations. It is sometimes said that the act of the immediate tortfeasor must have been “very likely to occur” before the law will consider it to have been foreseeable. The higher test proposed reflects the disinclination of the law to hold the ancillary tortfeasor liable for the actions of the immediate tortfeasor,” the Court indicated. ⁵

Causation

The decision also contains helpful reasoning on the issue of causation. The trial judge relied on the lower “material contribution” test for causation instead of the standard “but for” test. This was the wrong test, particularly in light of the Supreme Court of Canada’s decision in Resufice v. Hanke (2007 SCC 7), which came out between the trial judgment and the appeals. Causation can be determined in such cases using the “but for” test and so it must be used. Importantly, the Court of Appeal expressly noted that even though causation in such cases turns on the decisions and actions of the defendant that committed the intentional tort, and whether that person would have acted differently “but for” the alleged negligence of other defendants, there is no reason why the plaintiff should not have to prove causation on the this more stringent standard. ⁶

Another important point on causation was the correction of the trial judge’s comments indicating that he considered the conduct of all of the defendants as a whole to determine causation. “This was a fundamental error in approach. The proper application of the “but for” test to determine causation requires a consideration of each appellant’s negligent acts and omissions in isolation from those of the other appellants,” he noted. ⁷

The Court of Appeal did not go on to make its own determination of whether the “but for” test would have been satisfied, but comments in the decision indicate that it would not have been met. In an approach that may appear frequently in this kind of case, the plaintiffs strove to find any provision or standard that was arguably not complied without showing how meeting that standard would have made a difference. The trial judge accepted that reasoning, the Court of Appeal did not. “For example, he held that there was no evidence that Royal Oak “inspected escape exits at least once a month.” It is unclear how that is relevant to this case. The inspection of escape exits is presumably to ensure that people can escape the mine in case of emergency. If the trial judge was implying that the inspectors should have ensured that Royal Oak had welded the exits shut, that would seem to be inconsistent with the regulation. This is akin to chaining shut the fire doors in a crowded nightclub. The trial judge also noted the regulation that every shaft must be securely fenced. This regulation is clearly intended to prevent people from falling into the shaft, not to deter people who are intentionally trying to trespass in the mine. Since Warren went out of his way to enter the mine notwithstanding any obstacles put in his place, there is no basis for thinking that compliance with these regulations would have had any effect at all. Even the removal of the top flight of the ladder at the Akaitcho access point did not stop him.”

Security breach

Similar comments were made on the issue of whether the security company at the Mine should have prevented Warren from committing the murders. “Pinkerton’s was focussing all its resources on keeping trespassers like Warren out of the mine,” the Court of Appeal found. “Warren, on the other hand, was doing everything he could to circumvent Pinkerton’s efforts. It was essentially a cat and mouse game, and Warren won because of a combination of the limited resources available to Pinkerton’s, Warren’s superior knowledge of the mine, and because he had control of when, where and how he would attempt his intrusion.”

In a case like this, using hindsight is both particularly tempting and especially wrong-headed. Are there steps that could have stopped Roger Warren from committing the murders in the early morning of Sept. 18, 1992 at the 750 level of the mine with an improvised bomb? As the Court of Appeal recognized, taking such an approach ignores the fact that Warren chose a method — a “where, when and how” — to evade the obstacles that existed. If he evaded those obstacles, and had the kind of determination it must take to commit mass murder, it can only be expected that if there were more obstacles he would choose a different “where, when and how” to get around them as well. With those kinds of considerations in mind, it is, and should be, very difficult to prove that the murders were “caused” by someone else failing to take steps to prevent them.

Peter Gibson is a partner in the insurance group of Field LLP’s Edmonton office and was counsel for the Government of the Northwest Territories in the Fullowka actions.

References:

1.Fullowka v. Royal Oak Ventures Inc., at paragraph 41

2. Fullowka v. Royal Oak Ventures Inc., at paragraph 36

3.Fullowka v. Royal Oak Ventures Inc., at paragraphs 95 -96

4.Fullowka v. Royal Oak Ventures Inc., at paragraph 97

5.Fullowka v. Royal Oak Ventures Inc., at paragraph 54

6.Fullowka v. Royal Oak Ventures Inc., at paragraphs 192 to 199

7.Fullowka v. Royal Oak Ventures Inc., at paragraph 205, see also paragraph 202

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In a case like this, using hindsight is both particularly tempting and especially wrong-headed.