The Rural Voice, 1998-10, Page 16r
Agrilaw
Liability for reasonable care
By Paul G. Vogel
The law imposes upon everyone
the duty to exercise reasonable care
in the conduct of their affairs to avoid
foreseeable injury to others. Where
the failure to exercise such care
results in damage to others, the
person who has breached their duty
of care will be liable for their
negligence and may be required to
compensate the victim. Over the
years, our courts have been required
to consider many such cases, some of
which raise the interesting question
of who is liable to compensate the
victim when damage results from the
successive negligence of two or more
parties?
The Ontario Court of Appeal
considered a lawsuit brought by a
farmer for compensation arising from
the death of his cow. The cow was
struck and killed on a highway by a
car after a construction company
undertaking a road widening caused a
tree to fall on the fence enclosing the
field in which
the farmer's
cattle are
located. As a
result of the
breach in the
fence, some of
the cattle
(including the
deceased cow)
escaped the
field and
entered upon
the highway.
On the
evidence, thc
Court
concluded that the motorist should
have had an unobstructed view of the
cow for a distance of approximately
300 feet and that he was negligent in
failing to avoid collision with the
The law
imposes
requirement
ro exercise
reasonable
care
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cow.
The position of the construction
company was that, even if it had
failed to exercise reasonable care in
undertaking repair to the fence and
preventing the escape of the farmer's
cows, the loss of the cow was not a
direct consequence of such
negligence but rather the injury and
death of the cow were attributable to
the intervening negligence of the
motorist.
In addressing this position and the
respective liability of the parties for
the loss suffered by the farmer, the
Court stated:
"... I am firmly'of the view that in
the circumstances it should have
been obvious to anyone in that
position that if the gap created in
the fence were not repaired the
plaintiff's cows, in accordance
with the well-known habit of
bovines, would be likely to escape
to the adjacent provincial highway
and might there be injured or
killed by a passing motor car,
whether as a result of negligence
or otherwise.
"I hold it to be an established
principle that damage is
recoverable if, despite the
intervening negligence of a third
party, the person guilty of the
original negligence ought
reasonably to have anticipated
such subsequent intervening
negligence and to have foreseen
that if it occurred the result would
be that his negligence would lead
to loss or damage."
In coming to this conclusion, the
Court determined that the joint
negligence of two or more parties
may be successive; the negligence of
one party may create conditions
providing the opportunity for
negligence of another party. Relying
upon ancient English common law,
the Court held that:
" ... a person who, in neglect of
ordinary care, places or leaves his
property in a condition which may
be dangerous to another may be
answerable for the resulting injury,
even though but for the