MICHELLE MANN:
Supreme Court couldn't rule on compassion in party host case
CBC News Viewpoint | May 5, 2006 | More from Michelle Mann
Michelle Mann is a Toronto-based consultant and freelance writer, specializing in social justice, human rights and Aboriginal issues. A lawyer with many years of practice behind her, Michelle now dedicates herself to consulting on and writing about legal, political and policy issues, particularly those with social justice implications.
Considering throwing a party but worried about your liability for guests that drink and drive? Don't be, says the Supreme Court of Canada, unless you are actively implicated in your guest's destructive actions.
The court's recent ruling in Zoe Childs versus Desmond Desormeaux, considered by many lawyers to be the biggest tort case in 30 years, is, however, worth a read prior to hosting your next event.
 Zoe Childs, who was 18 at the time of the accident, was left a paraplegic. (CBC)
Canadian negligence law has already established a principle of commercial host liability. A bar owner can be held liable for serving excessive amounts of alcohol to someone who then drives and causes damage. However, in these circumstances the "host" is profiting from selling the alcohol, and subject to a strict regulatory regime.
With an estimated thousands of cases awaiting the outcome of this appeal, lawyers across the country were holding their collective breath.
A large exhale could be heard from those of us concerned with the responsibility of the individual for their actions.
In a unanimous and surprisingly short (by Supreme Court standards) judgment, the court stated unequivocally that "as a general rule a social host does not owe a duty of care to a person injured by a guest who has consumed alcohol."
Even if the hosts could have reasonably foreseen Child's injury the court said, under negligence law there was no positive duty to act and monitor guests' drinking or to prevent them from driving. Social host liability might only arise where the host's conduct implicates them in the exacerbation of the risk, for example, by continuing to serve alcohol to a visibly inebriated person knowing that they will be driving home.
Legally, this case was about the duty of care owed to others under negligence law, but practically it was also about deep pockets, with the injured victim pursuing compensation under the host's homeowners insurance. One certainly cannot blame Childs and her family for trying; I would go after anyone I could in her circumstances.
However, while she was an extremely sympathetic plaintiff, the court clearly knows that "bad facts make bad law." Ruling on the basis of compassion for her situation would have resulted in a dangerous precedent.
A judgment finding liability on behalf of the social hosts would have required that the bench divorce itself from reality. It is simply not possible to monitor guests that closely, though, of course, we might try, rooted in concern for our fellow citizens.
More importantly, there is a co-relation between our freedom to choose our course of action as individuals and personal responsibility for those choices.
Taken to the extreme, it has been hypothesized that a finding of social host liability in this case could ultimately have led to a drunk driver suing social hosts for not adequately supervising him or her.
The court clearly saw these implications, observing that: Short of active implication, a host is entitled to respect the autonomy of a guest. The consumption of alcohol, and the assumption of the risks of impaired judgment is in almost all cases a personal choice and an inherently personal activity.
The impact that these words of reason will have on numerous other "personal responsibility" type lawsuits currently working their way through the courts remains to be seen.
Take, for example, the tobacco-related class action lawsuits certified in Quebec in 2005. In the Blais case the representative plaintiff argues that the tobacco companies denied the link between tobacco and cancer until the 1990s. Having lost a lung to cancer, he apparently still smoked about 40 cigarettes a day in 2005.
If tobacco companies have deliberately misled the public or withheld health information, they should be on the hook for resulting health related damages. But to what degree are manufacturers responsible for the period after which information about tobacco-related dangers was fully in the public domain?
Equally, gamblers suing governments over their casino-fuelled addictions and failed attempts by the obese to sue fast food companies in the U.S., speak to a trend in so-called "blaming lawsuits."
Childs does not bode well for these types of cases; as eloquently noted by the court: "The common law is a jealous guardian of individual autonomy."
Clearly, governments, corporations and individuals owe duties of care to others. Simultaneously, however, there is a co-relation between freedom of choice and personal responsibility for those choices; a corresponding price to be paid for abnegating our accountability.
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