Garratt et al. v. Orillia Power Distribution Corporation [Indexed as: Garratt v. Orillia Power Distribution Corp.]
90 O.R. (3d) 161
Court of Appeal for Ontario,
O'Connor A.C.J.O., Gillese and Watt JJ.A.
May 29, 2008
Torts -- Negligence -- Duty of care -- Defendant stringing new electrical circuits along overpass above highway -- Vandal releasing spider rope attached to base of guardrail post while defendant's employees were at lunch -- Rope striking plaintiff's car as it emerged from overpass -- Injury to users of highway as result of careless act by defendant's employees being reasonably foreseeable -- Defendant owing plaintiff duty of care.
Torts -- Negligence -- Standard of care -- Defendant stringing new electrical circuits along overpass above highway -- Vandal releasing spider rope attached to base of guardrail post while defendant's employees were at lunch -- Rope striking plaintiff's car as it emerged from overpass -- Trial judge erring in finding that method used to secure rope did not comply with industry standards and in treating non-compliance with industry standards as establishing breach of standard of care -- Vandalism not reasonably foreseeable -- Defendant not breaching standard of care.
The plaintiff was injured when a spider rope attached to an electrical conductor cable struck her car as she emerged from an overpass. Workers employed by the defendant public utility had attached the rope to the base of a guardrail post off the travelled surface of the overpass before going for lunch, and a vandal had released it. The plaintiff sued the defendant for damages. The action succeeded. The trial judge found that the chosen method of securing the rope (a bowline knot) did not meet the minimum standards described in the Rule Book of the Electrical Utilities Safety Association of Ontario ("EUSA"), and that if the workers had used some other means of securing the rope, the vandal would have been unable to tamper with it and the accident would have been avoided. The defendant appealed.
Held, the appeal should be allowed.
As it was reasonably foreseeable that a careless act by the defendant in its work along the overpass above the highway could result in injury to users of the highway below, the defendant owed the plaintiff a duty of care.
However, the trial judge erred in finding that the defendant breached the standard of care because its conduct did not meet its own "industry standard" as set out in the EUSA Rule Book. The Rule Book, which directs utilities to take precautions to avoid injury and requires supervisors to take measures, reasonable in the circumstances, to ensure the safety of the workplace and the public, fell short of establishing an industry standard upon which to found liability in the circumstances of this case. The trial judge also erred in treating an industry standard, if there were one, as dispositive of a breach of the standard of care. There was no evidence that the actions of the defendant's employees fell below what was reasonable in the circumstances. The project had been ongoing for several months without any acts of vandalism, and the job supervisor and the journeyman linemen engaged in the project, whose combined experience extended to 60 years, had never encountered an incident of vandalism. There was no evidence capable of sustaining a finding that the acts of the vandal which directly caused the plaintiff's damages were a reasonably foreseeable result of the defendant's conduct in securing the spider ropes. The defendant did not breach the applicable standard of care. [page162]
APPEAL by the defendant from the judgment of Ferguson J. of the Superior Court of Justice, dated December 14, 2005 and April 13, 2006, for the plaintiff in a negligence action.
Cases referred to Anns v. Merton London Borough Council, [1978] A.C. 728, [1977] 2 All E.R. 492 (H.L.); Kamloops (City) v. Nielsen, 1984 CanLII 21 (SCC), [1984] 2 S.C.R. 2, [1984] S.C.J. No. 29, 10 D.L.R. (4th) 641, 54 N.R. 1, [1984] 5 W.W.R. 1, J.E. 84-603, 66 B.C.L.R. 273, 11 Admin. L.R. 1, 29 C.C.L.T. 97, 8 C.L.R. 1, 26 M.P.L.R. 81, 26 A.C.W.S. (2d) 453; Ryan v. Victoria (City), 1999 CanLII 706 (SCC), [1999] 1 S.C.R. 201, [1999] S.C.J. No. 7, 168 D.L.R. (4th) 513, 234 N.R. 201, [1999] 6 W.W.R. 61, J.E. 99-357, 117 B.C.A.C. 103, 59 B.C.L.R. (3d) 81, 44 C.C.L.T. (2d) 1, 50 M.P.L.R. (2d) 1, 40 M.V.R. (3d) 1, 85 A.C.W.S. (3d) 208, apld Other cases referred to Hewson v. Red Deer (City), 1977 ALTASCAD 133, [1977] A.J. No. 293, 146 D.L.R. (3d) 32, 20 A.C.W.S. (2d) 70 (S.C. (A.D.)); Home Office v. Dorset Yacht Co., [1970] 2 All E.R. 294, [1970] A.C. 1004, [1970] 2 W.L.R. 1140, [1970] 1 Lloyd's Rep. 453 (H.L.); Nespolon v. Alford (1998), 1998 CanLII 7127 (ON CA), 40 O.R. (3d) 355, [1998] O.J. No. 2674, 161 D.L.R. (4th) 646, 110 O.A.C. 108, 35 M.V.R. (3d) 280, 80 A.C.W.S. (3d) 1123 (C.A.) [Leave to appeal to S.C.C. refused [1998] S.C.C.A. No. 452]; Nova Mink Ltd. v. Trans-Canada Airlines, 1951 CanLII 325 (NS CA), [1951] 2 D.L.R. 241, 26 M.P.R. 389 (S.C.); Smith v. Littlewoods Organisation Ltd., [1987] H.L.J. No. 3, [1987] A.C. 241 (H.L.); Toronto Hydro-Electric Commission v. Toronto R.W. Co. (1919), 1919 CanLII 506 (ON CA), 45 O.L.R. 470, [1919] O.J. No. 164, 48 D.L.R. 103 (S.C. (A.D.)); Wright v. McCrea, 1964 CanLII 133 (ON CA), [1965] 1 O.R. 300, [1964] O.J. No. 834 (C.A.) Statutes referred to Occupational Health and Safety Act, R.S.O. 1990, c. O.1 Rules and regulations referred to Electrical Utility Safety Rules, Rule 126 Authorities referred to Klar, L., et al.Remedies in Tort, looseleaf (Scarborough, Ont.: Carswell, 1988- )
Alan H. Mark and Scott R. Campbell, for appellant. J. Daniel Dooley, for respondents.
The judgment of the court was delivered by
[1] WATT J.A.: -- Shortly after noon on November 6, 2002, a spider rope attached to an electrical conductor cable struck the hood of a car as the vehicle emerged from the Memorial Avenue overpass above the northbound lanes of Highway 11 near Orillia. Almost immediately, the rope wrapped around the driver's side rear-view mirror.
[2] The driver of the northbound car, Lynda Garratt, brought her vehicle to a sudden stop on the surface of the highway, then noticed a blue rope disappear to an area above the overpass where a lone man was standing. [page163]
[3] The spider rope had been attached to the base of a guardrail post off the travelled surface of the Memorial Avenue overpass by a crew from Orillia Power Distribution Corporation (Orillia Power) before they had left for lunch that grey early November day.
[4] While the Orillia Power crew were at lunch, a vandal had released one of the four ropes similarly affixed to the pole with a bowline knot and shackle secured with a threaded bolt. The rope fell to the travelled surface of the highway below striking Lynda Garratt's car.
[5] A judge of the Superior Court of Justice found Orillia Power negligent and awarded Lynda Garratt $258,723.28 in damages.
[6] Orillia Power appeals seeking an order dismissing Ms. Garratt's claim. A. The Facts 1. The parties
[7] Lynda Garratt was a 45-year-old self-employed cleaner at the time of the accident.
[8] Orillia Power supplies, distributes and maintains hydro- electric power in the City of Orillia. 2. The Memorial Avenue project
[9] In November 2002, Orillia Power was carrying out a long- term project that included stringing new electrical circuits along Memorial Avenue. Installation of the circuits involved the use of spider ropes.
[10] Spider ropes are non-conductors, made of hollow, braided, lightweight rope that linemen attach to travellers and use to pull the conductors through from one pole to the next. Four spider ropes were in use as the project continued from the pole on the east side of the Memorial Avenue overpass above Highway 11 to the next pole on the west side of the overpass and highway.
[11] Donald Westgarth was the foreman on the project, which included two journeymen linemen and two traffic control supervisors. Westgarth and the linemen each had more than 20 years' experience in hydro-electrical installations. The crew had worked on the overpass portion of the project for three months. 3. The security measures on November 6, 2002
[12] The Orillia Power crew were working on the north side of Memorial Avenue on the east side of Highway 11 when they decided to take their lunch break shortly before noon on November 6, 2002. Everyone took lunch together. No one remained at the job site. [page164]
[13] To secure the spider ropes strung to the poles on the east side of the overpass, the crew pulled the ropes from the east to the west side of the overpass, but did not string them to the pole on the west side. The loose end of each spider rope was secured by tying the end with a bowline knot, wrapping it around a guardrail post at its base, passing a four-inch shackle through each knot, and securing each knot with a tightened, threaded bolt. The end of each rope was taped.
[14] The lunch break lasted one hour. 4. Tampering on November 6, 2002
[15] Lynda Garratt looked back towards the overpass after she had stopped her car in the northbound lane. She noticed a rope dangling from above the overpass after it had dislodged from her driver's side rear-view mirror. She also noticed a man on the overpass winding up the rope. The man was standing near a yellow truck. Orillia Power's trucks are blue.
[16] When Donald Westgarth and his crew returned to the Memorial Avenue overpass after lunch, they noticed that one of the four spider ropes had sagged into the spans east of the bridge. The end of the rope lay on the ground on the east side of the northbound lanes of Highway 11.
[17] Donald Westgarth concluded that the spider rope had ended up on Highway 11 because someone, a stranger, had tampered with the mechanism used by Orillia Power employees to secure the spider ropes to a guardrail post while the crew was at lunch. Mr. Westgarth explained that someone had unthreaded or loosened the bolt in the shackle and allowed the rope to run through the security mechanism and fall freely to the road surface. 5. No history of tampering
[18] The project of which the installations over the Memorial Avenue overpass was an integral part had been ongoing for several months. At no stage had anyone tampered with any installation or any Orillia Power equipment.
[19] Donald Westgarth and the two journeymen linemen who worked on the Memorial Avenue overpass project with him, Rick Watson and Rob Mack, each had more than two decades of experience in hydro-electric power installations. None had ever encountered any incident of tampering with spider ropes, apart from what had occurred at lunch time on November 6, 2002. [page165] 6. Industry standards and other methods of security
[20] Orillia Power is a member of the Electrical Utilities Safety Association of Ontario ("EUSA"). EUSA, in consultation with members of the Municipal Electric Association and the Provincial Labour-Management Safety Committee, has compiled a book of safety rules to express the minimum requirements for employee and public safety. The rules are promulgated to prevent accidents, personal injury and property damage, and are issued as a requirement of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1.
[21] Rule 126 deals with the conduct of work and personal safety. It provides, in part, as follows: 3. A safe work environment shall be established and maintained at all work sites to prevent injury to the general public and damage to property. 4. When working on private or public property, precautions shall be taken to prevent injury to the general public or damage to property and equipment.
[22] The EUSA Rule Book says nothing about how employees of utilities are to secure spider ropes when employees are absent from an installation site.
[23] Donald Westgarth explained that the only knot recognized in the electrical utilities industry for dead-ending purposes is the bowline knot. The bowline is a simple knot for forming a non-slipping loop at the end of a rope.
[24] Neither party adduced any evidence about industry standards, if there are any, for securing spider ropes in circumstances such as those here. No evidence was given about methods more appropriate than what was used here. Suggestions put to Orillia Power employees who testified at trial included the use of a bucket truck or other means to tie off the ropes on a utility pole out of reach of a pedestrian. Donald Westgarth rejected the bucket truck and tieback suggestion as too risky. 7. The method used to secure the spider ropes
[25] Donald Westgarth explained that the method used to secure the spider ropes when he and the rest of the crew left for lunch took into account the prospect of tampering. The bowline knot is an industry standard to guard against slippage. The area in which the ropes were secured has a high frequency of vehicular traffic, thus decreasing the likelihood of tampering. The installation was put in place for a short time, in broad daylight, in an area where there was no pedestrian traffic. There were risks associated with other methods for securing the ropes. [page166] B. The Findings of the Trial Judge
[26] The trial judge gave judgment first on the issue of liability. About four months later, she released her reasons on causation and damages. 1. The findings on liability
[27] The trial judge concluded that had Orillia Power employees used some alternative means of securing the spider ropes, neither tampering, nor the accident would have occurred. The other methods posited by the trial judge included tying the ropes off to another pole at a height inaccessible from ground level, tightening the shackle with a wrench, installing a locking system on the ropes to make tampering more difficult or leaving a flagman at the job site over lunch to ensure security. The method chosen did not meet the minimum standards described in the Rule Book of EUSA, Orillia Power's "own association".
[28] The trial judge found that Orillia Power owed a duty of care to Ms. Garratt and fellow users of Highway 11. She described this duty in the following terms [at paras. 19-20]:
In order to establish a duty of care there must be forseeability and proximity. The defendant must take reasonable care to avoid acts or omissions which it can reasonably foresee would be likely to injure another party. There must be a sufficiently close relationship between the parties so that, in the reasonable contemplation of the defendant, carelessness on its part might cause damage to that person.
The test for proximity is a relatively low threshold. In order to establish a prima facie duty of care, it must be shown that a relationship of proximity existed between the parties such that it was reasonably foreseeable that a careless act could result in injury to the other party (Ryan v. Victoria (City) et al 168 D.L.R. (4th). Highway 11 is a busy highway. The defendant knew to secure the ropes so they would be away from the highway. They however left the four ropes attached to a low guardrail easily accessible to a "tamperer". Other options were available to make them secure. I find that it was reasonably foreseeable that a careless act on the part of the defendant could result in injury to a driver on Highway 11 and that a careless act occurred.
[29] The trial judge turned next to the standard of care. The essentials of her finding on this issue appear in para. 21 of her reasons in these terms:
The standard of care must be appropriate in the circumstances, and is that of the ordinary, reasonable, cautious and prudent person in the position of the defendant. The defendant is a power distribution company. Conduct is negligent if it creates an objectively unreasonable risk of harm [Ryan v. Victoria (City)]. The factors to be considered by a reasonable person when deciding upon a course of conduct include: the likelihood that its conduct will injure others, the seriousness of the injury if it happens, balanced against the interest which must be sacrificed to avoid the risk [page167] (Klar, Tort Law, 3rd Ed. (Toronto: Thomson Carswell, 2003 p. 315). The standard of care in this case is to ensure that a safe work environment be established and maintained to prevent injury to the general public and damage to property. The standard of care has not been met by the defendant. As set out above, the defendant did not comply with its own minimum standards. While the minimum requirements of the Association do not, in and of themselves, establish the standard, they certainly inform the decision as to what an ordinary, reasonable, cautious and prudent person would do in these circumstances.
[30] The trial judge concluded that the failure of Orillia Power's employees to take reasonable steps to secure the installation amounted to negligence, which caused the accident and Ms. Garratt's injuries. As an alternative basis of liability, the trial judge inferred that Orillia Power was negligent because, in the absence of negligence, the accident would not have occurred. 2. The findings on causation and damages
[31] In her separate reasons on causation and damages, the trial judge grounded her conclusion on causation on two bases: (i) but for the negligence of Orillia Power, Ms. Garratt would not have been injured; and (ii) the negligence of Orillia Power materially contributed to Ms. Garratt's injuries.
[32] The trial judge assessed Ms. Garratt's damages at $258,723.28 and awarded her prejudgment interest and costs. She declined to reduce the damages by the amount of collateral benefits Ms. Garratt received under her policy of automobile insurance because Ms. Garratt's damages did not arise "directly or indirectly from the use or operation of an automobile". C. The Grounds of Appeal
[33] The appellant advances two grounds of appeal. The first has to do with the underlying finding of negligence. The second, advanced as an alternative, relates to the measure of damages awarded, more specifically, the trial judge's failure to deduct from the award the sum of collateral benefits the respondent received from her motor vehicle insurer.
[34] The appellant's principal attack is on the finding of negligence. Several errors coalesce to vitiate the finding: (i) the erroneous imposition of a duty of care on the appellant for the acts of a third party that were not reasonably foreseeable; [page168] (ii) the absence of any finding that the acts of vandalism, which caused the rope to plummet to the road surface below the overpass, were reasonably foreseeable; (iii) the equation of failure to effectively prevent tampering with liability in negligence; and (iv) the imposition of strict liability for failure to conduct operations in accordance with the EUSA manual.
[35] The alternative submission of the appellant is that the trial judge erred in holding that the respondent's injuries did not arise directly or indirectly from the use of an automobile. The accident occurred when the spider rope, loosened then freed from its moorings, contacted the respondent's car, which prompted her reaction, the immediate cause of her injuries. The respondent was driving her car on a public highway, an ordinary and well-known activity to which automobiles are put. There is the required nexus or causal relationship between the respondent's injuries and her use or operation of her car. In the result, the trial judge erred in law in failing to deduct the collateral benefits paid to the respondent under her automobile policy from the damages awarded at trial. D. Analysis 1. The duty of care
[36] The appellant says that the trial judge applied the wrong test, indeed, asked the wrong question in deciding whether the appellant was negligent. Crucial to a finding of negligence was the existence of a duty of care and a failure on the part of the appellant to meet the required standard of care.
[37] Liability in negligence does not necessarily follow from the fact that the conduct of one person has caused another harm. Negligence is the failure of a person who owes a duty of care to another to take such care as would have been reasonable in the circumstances. And what is reasonable depends on the facts of each case. The conduct that directly caused the harm to the respondent in this case was that of a vandal.
[38] The appellant contends that the task of the trial judge was to determine whether the appellant took reasonable care in all the circumstances. In particular, the trial judge was required to decide whether the acts of vandalism were reasonably foreseeable. Instead, the trial judge decided that the appellant was negligent by imposing a standard of strict liability. The appellant failed to comply with what the trial judge regarded, in the [page169] absence of evidence, as industry standards. Other steps could and should have been taken to better secure the installation. The appellant failed to do so. The respondent suffered damages. Therefore, the appellant was negligent.
[39] The respondent says that the trial judge stated and applied the proper standard in finding that the appellant's negligence caused the respondent's damages.
[40] The respondent, a motorist, on a well-travelled highway above which the appellant was working, was entitled to expect that the utility would take all reasonable care to ensure that events like those that occurred here would not happen. The appellant did not do all that was required to satisfy the relevant standard of care. Even if the appellant complied with the accepted industry standard, compliance is of no legal moment if the industry standard is itself inadequate.
[41] The respondent reminds that the issue for the trial judge to determine was whether the prospect of harm by vandalous acts was reasonably foreseeable in all the circumstances. The evidence of the appellant's employees about never having encountered an incident of vandalism was relevant to, but not dispositive of the issue the trial judge had to decide. Also relevant was evidence that other precautions could have been taken to further reduce, if not eliminate the risk of vandalism. The finding made by the trial judge was reasonably available on the evidence and should not be disturbed.
[42] The first step in the negligence analysis requires a determination whether the appellant, a public utility, owed a duty of care to the respondent in connection with the security of the spider ropes used in its power line project. If such a duty is found to exist, what next requires decision is whether the appellant exercised the standard of care necessary to avoid breaching that duty. A discussion of duty focuses upon its existence. The standard of care clarifies the content of the duty. In the absence of a duty of care, there can be no negligence. (Ryan v. Victoria (City), 1999 CanLII 706 (SCC), [1999] 1 S.C.R. 201, [1999] S.C.J. No. 7, at para. 21).
[43] To determine whether the appellant owed the respondent a duty of care in the circumstances of this case involves the application of the two-step test in Anns v. Merton London Borough Council, [1978] A.C. 728, [1977] 2 All E.R. 492 (H.L.), at pp. 751-52 A.C., adopted by the Supreme Court of Canada in Kamloops (City) v. Nielsen, 1984 CanLII 21 (SCC), [1984] 2 S.C.R. 2, [1984] S.C.J. No. 29, among other decisions. In Kamloops, Wilson J. restated the Anns test in these terms at pp. 10-11 S.C.R.: (1) is there a sufficiently close relationship between the parties (the [defendant] and the person who has suffered the damage) so that, in [page170] the reasonable contemplation of the [defendant], carelessness on its part might cause damage to that person? If so, (2) are there any considerations which ought to negative or limit (a) the scope of the duty; and (b) the class of persons to whom it is owed; or (c) the damages to which a breach of it may give rise?
[44] The first step of the Anns/Kamloops test imposes a relatively low threshold. To surmount the first hurdle, thereby to establish a prima facie duty of care, the proponent must demonstrate the existence of a relationship of "proximity" between the parties, such that it was reasonably foreseeable that a careless act by the appellant could result in injury to the respondent (Ryan v. Victoria (City), at para. 23).
[45] The second step in the Anns/Kamloops test requires a determination of whether any factors exist that should eliminate or limit the duty found under the first branch of the test. Not every demonstration of proximity establishes liability. The existence of a duty of care must be considered in the context of all relevant circumstances, including, but not only any applicable statutes or regulations (Ryan v. Victoria (City), at para. 24).
[46] A duty of care only arises where the circumstances of time, place and person would create in the mind of a reasonable person in those circumstances such a probability of harm resulting to other persons as to require him or her to take care to avert that probable result (Ryan v. Victoria (City), at para. 24, quoting with approval, Nova Mink Ltd. v. Trans-Canada Airlines, 1951 CanLII 325 (NS CA), [1951] 2 D.L.R. 241, 26 M.P.R. 389 (S.C.), at p. 254 D.L.R).
[47] In other words, a duty of care is established only where it is reasonably foreseeable that carelessness might cause harm. A determination of whether the harm caused was or ought to have been reasonably foreseeable commands an examination of the proximity of the relationship between the parties, the tortfeasor and the person claiming damages, and the probability of the harm actually occurring (Nespolon v. Alford (1998), 1998 CanLII 7127 (ON CA), 40 O.R. (3d) 355, [1998] O.J. No. 2674 (C.A.), at pp. 363-64 O.R., leave to appeal to S.C.C. refused [1998] S.C.C.A. No. 452).
[48] Foreseeability of the possibility of resultant harm is inadequate to establish a duty of care. We do not expect omniscience, prescience or clairvoyance, or impose a duty of care on all who fall short of any such standard. Foreseeability of the probability of resultant harm involves the likelihood that such harm will result from the alleged wrongdoer's conduct. Said in different words, a duty of care is established only where what happened was a natural and probable result of what the alleged wrongdoer did or failed to do (Nespolon, at pp. 363-64 O.R.). [page171]
[49] The trial judge concluded that there was a relationship of proximity between the appellant and respondent such that it was reasonably foreseeable that a careless act by the appellant would result in injury to the respondent.
[50] The appellant, a public utility, was stringing new electrical circuits along the Memorial Avenue overpass above Highway 11. The respondent was a user of the highway below the overpass. Highway 11 is a busy multi-lane controlled-access highway. It was reasonably foreseeable that a careless act by the appellant in its work along the overpass above the highway could result in injury to users of the highway below.
[51] The evidence here satisfies the low threshold required to surmount the first step of the Anns/Kamloops test, thus establishes that the appellant owed the respondent a prima facie duty of care. No considerations negative or limit the duty established under the first branch of the test.
[52] I would not give effect to the appellant's assertion that the utility did not owe the respondent a duty of care in the circumstances. 2. The standard of care
[53] Negligent conduct is conduct that creates an objectively unreasonable risk of harm. In Ryan, Major J. described the standard of care an alleged tortfeasor must exercise to avoid liability. He described that standard in these terms in para. 28:
To avoid liability, a person must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances. The measure of what is reasonable depends on the facts of each case, including the likelihood of a known or foreseeable harm, the gravity of that harm, and the burden or cost which would be incurred to prevent the injury. In addition, one may look to external indicators of reasonable conduct, such as custom, industry practice, and statutory or regulatory standards.
[54] In my view, the trial judge made two errors in determining that the appellant breached the standard of care. First, she appears to have found liability because, in her view, the appellant's conduct did not meet its own "industry standard". In other words, the path to liability proceeded directly from a failure to meet the "industry standard" to a finding of negligence.
[55] The difficulty with this approach is that there was no evidence of an industry standard for security of spider ropes when a work crew is absent from a job site. The trial judge seems to have relied upon the very general instruction in the EUSA rule book, which directs utilities to take precautions to avoid injury and requires supervisors to take measures, reasonable in the [page172] circumstances, to ensure the safety of the workplace and the public. That direction, however, is nothing more than a statement of the legal requirements for the standard of care at common law. It falls far short of establishing an industry standard upon which to found liability in the circumstances of this case.
[56] The second error that the trial judge made was to treat an industry standard, if there was one, as dispositive of a breach of the standard of care. That is wrong in principle because it amounts to a finding of negligence based on strict liability and treats what is, at best, some evidence of negligence as conclusive proof of it. As Major J. said in Ryan, industry practice and statutory and regulatory standards are external indicators to which one can look in assessing whether there has been a breach of the standard of care. They are not in themselves determinative of that issue.
[57] Given that I have found that the trial judge erred, it falls to this court to determine whether on this record, the respondent has established that the appellant breached the applicable standard of care. In my view, there is no evidence that the actions of the appellant's employees fell below what was reasonable in the circumstances. The harm to the respondents was directly caused by an independent human agency, the vandal on the overpass. The appellant's conduct would fall below the reasonable standard of care if, but only if, its conduct created an objectively foreseeable risk of harm by a third party. In other words, unless the intervening conduct was reasonably foreseeable, the appellant is not responsible for the intervening acts of the third party: Remedies in Tort Vol. 2 (Klar, et al.), 189.
[58] To decide whether the appellant utility's conduct created an objectively unreasonable risk of harm, it is essential to remember that the direct cause of the harm was the conduct of a third party, the vandal who released the rope from its mooring. It thus becomes necessary to consider whether the intervening conduct of the vandal was a reasonably foreseeable result of the appellant's allegedly negligent conduct.
[59] In Smith v. Littlewoods Organisation Ltd., [1987] H.L.J. No. 3, [1987] A.C. 241 (H.L.), Littlewoods purchased a cinema, which the company planned to close, demolish and replace with a supermarket. The cinema premises were secured when it ceased to operate as a cinema. As the weeks went by, however, the security in the main building was breached. Trespassers regularly entered. Debris accumulated outside the building. Passers-by noticed that trespassers had attempted to start fires inside and adjacent to the cinema. No one informed Littlewoods or the police about these observations. About a month after Littlewoods had [page173] taken possession, someone started a fire inside the cinema. The fire damaged two adjoining properties. The owners of those properties sued Littlewoods alleging negligence.
[60] The adjoining property owners' success at trial was short-lived. The Court of Session allowed Littlewoods' appeal. The owners appealed to the House of Lords where they argued that it was reasonably foreseeable that children would be attracted to the unsecured cinema, gain entry and cause damage to it. It was reasonably foreseeable that the damage would include damage by fire which, it was (further) reasonably foreseeable, would, in its turn, spread to and damage adjoining properties.
[61] The House of Lords dismissed the property owners' appeal. Lord Mackay, with whom three other members of the House agreed, described the duty of care towards a person injured by the conduct of a third party in these terms at p. 261 A.C.:
[W]here the only possible source of the type of damage or injury which is in question is agency of a human being for whom the person against whom the claim is made has no responsibility, it may not be easy to find that as a reasonable person he was bound to anticipate that type of damage as a consequence of his act or omission. The more unpredictable the conduct in question, the less easy to affirm that any particular result from it is probable and in many circumstances the only way in which a judge could properly be persuaded to come to the conclusion that the result was not only possible but reasonably foreseeable as probable would be to convince him that, in the circumstances, it was highly likely. In this type of case a finding that the reasonable man should have anticipated the consequence of human action as just probable may not be a very frequent option. Unless the judge can be satisfied that the result of the human action is highly probable or very likely he may have to conclude that all that the reasonable man could say was that it was a mere possibility. Unless the needle that measures the probability of a particular result flowing from the conduct of a human agent is near the top of the scale it may be hard to conclude that it has risen sufficiently from the bottom to create the duty reasonably to foresee it.
In summary I conclude, in agreement with both counsel, that what the reasonable man is bound to foresee in a case involving injury or damage by independent human agency, just as in cases where such agency plays no part, is the probable consequences of his own act or omission, but that, in such a case, a clear basis will be required on which to assert that the injury or damage is more than a mere possibility. (Emphasis added) See also, Home Office v. Dorset Yacht Co., [1970] 2 All E.R. 294, [1970] A.C. 1004 (H.L.).
[62] An approach similar to that of Lord Mackay in Littlewoods underlies the decisions in cases such as Toronto Hydro Electric Commission v. Toronto R.W. Co. (1919), 1919 CanLII 506 (ON CA), 45 O.L.R. 470, [1919] O.J. No. 164, 48 D.L.R. 103 (S.C. (A.D.)); [page174] Wright v. McCrea, 1964 CanLII 133 (ON CA), [1965] 1 O.R. 300, [1964] O.J. No. 834 (C.A.); and Hewson v. Red Deer (City), 1977 ALTASCAD 133, [1977] A.J. No. 293, 146 D.L.R. (3d) 32 (S.C. (A.D.)).
[63] In this case, the act of mischief by the unknown vandal occurred in broad daylight, immediately beside a public roadway, on a highway overpass frequently travelled by vehicles but rarely, if at all, by pedestrians. The project, of which the installation above the overpass was an integral part, had been ongoing for several months without any acts of vandalism at any stage or location.
[64] The combined experience of the job supervisor and the journeymen linemen engaged in the project extended to 60 years. None of them had ever encountered an incident of vandalism in his career.
[65] According to the evidence adduced at trial, the method of security used in this case had been used by the utility for several years without incident. The method selected took into account the unlikely prospect of vandalism or other interference in the short time the crew would be absent from the work site. While other methods of rope security may have reduced the risk of trespassory interference, nothing indicated the possibility, let alone the likelihood of such interference. There was evidence that some other methods of security were less safe for the workmen, less practical and not indicated in the circumstances.
[66] A thorough canvass of the trial record yields no evidence capable of sustaining a finding that the vandalous acts that directly caused the respondent's damages were reasonably foreseeable from the appellant's conduct in securing the spider ropes. Accordingly, in my view, the respondent has failed to establish that the appellant breached the applicable standard of care. In the result, I would allow the appeal, set aside the judgment below and dismiss the action with costs. 3. The other grounds of appeal
[67] In the circumstances, it is unnecessary to consider the other grounds of appeal, either those raised to impeach the finding of liability or those advanced to reduce the measure of damages awarded. E. Disposition
[68] For these reasons, I would allow the appeal, set aside the judgment below and dismiss the action with costs. The appellant is entitled to its costs both here and below. I would fix the costs on appeal at $20,000 inclusive of disbursements and GST.
Appeal allowed.