Negligence And The Standard Of Care In Civil Sexual Assault Cases

Osgoode PD Webinar Series - Key Issues in Civil Sexual Assault

Negligence 101

Three elements: Duty owed (proximity and foreseeability) Breach of Duty owed (falling below the standard of care) Causation Establishing a Duty of Care

Have the courts previously recognized a prima facie duty of care If not, should a new duty of care be recognized? Foreseeability of harm and proximity of relationship. A direct relationship is an important factor in determining proximity Are there residual policy considerations that justify negating the duty? General Principals Regarding the Standard of Care / Breach of Duty

The question is, what would a reasonable person/institution in similar circumstances do? Negligence is the doing of something a reasonable person would not do; or Negligence is the failure to do something a reasonable person would do Industry standards are important but not determinative Institutions are judged according to the "standards of the day" Date of the alleged negligence is key Courts will consider any statutory duties When did society generally become aware of the prevalence of childhood sexual assault? Not in the late 1960's or early 1970's (Blackwater v. Plint) In the early 1980's police were instructed to thoroughly investigate childhood sexual abuse allegations (D.W. v. Canada) In the mid 1980's complaints of childhood sexual abuse were prevalent (D.W. v. Canada) The Chart

42 reported decisions where negligence has been discussed by the courts in civil sexual assault cases CITATION INSTITUTION YEAR(S) OF ABUSE ALLEGATIONS OF NEGLIGENCE FINDINGS OF NEGLIGENCE D.W. v. Canada (Atorney General), [1999] S.J. No. 742, 1999 SKQB 187, Maurice J. Residential School 1977-1980 Facts: Male plaintiff sues perpetrator, William Starr, administrator of the Residence and the Crown, who was the operator of the Residence and employer of Starr. Plaintiff was a student at Gordon Student Residence. He was sexually abused on two occasions. First incident involved Starr fondling plaintiff's penis and inserting fingers in plaintiff's anus. Second incident involved Starr forcing plaintiff to perform fellatio on him. Plaintiff was between 6-9 years old at the time of assault. Allegations: Plaintiff alleges a number of grounds of liability on behalf of the Crown: negligence, breach of fiduciary duty, breach of non-delegable duty, and vicarious liability. Negligence: Plaintiff alleges the Crown was negligent in failing to properly evaluate, monitor, and...