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  • Essay / Duty of care in Kamloops v. Nielson - 694

    Kamloops v. Nielson was a landmark decision in tort law because it established the principle of duty of care in Canadian private law, which was used prior to this case in Anns v. Merton and expanded the scope of the duty first identified in Donoghue v. Stevenson. In the landmark case Donoghue v. Stevenson, the duty of care was established to include anyone who might be harmed by the actions of others, thus creating the neighbor principle. The case of Anns v. Merton expanded the scope of the neighborhood principle to include public bodies, such as the municipality. The case involved defective foundations of the building, which required repairs to the house, and whether the municipality should have to pay for the repairs, since it was the municipality's responsibility to inspect and ensure that the building was properly constructed. Whether public tax allocations should be subject to tort litigation was called into question in this case, but the municipality was nevertheless held liable for damages. Lord Wilberforce, the judges presiding over Anns v Merton used a two-step test to determine the extent of proximity between the owner and the municipality. The first part of the test was to determine whether the relationship between the two parties was sufficient for the failure of one party to exercise a duty of care to result in damages suffered by the other. The second stage, following the first stage, examines all aspects which would limit the obligations imposed on the party to exercise a duty of care. This test and the Anns v. Merton established a strong precedent which was used in Kamloops v. Nielson, the first of its kind in Canada. In the case of Kamloops v. Nielson, a home under construction failed to pass inspection by the city and construction was stopped, but the builder ignored the requests and continued to build the home without meeting necessary safety requirements. The inspector also chose not to follow up with the builder and allowed them to build the home without proper approval. The house was then sold to a couple who did not know the history of the house, and when problems arose with the foundation, they took the municipality and the seller to court. Similar to the case of Anns v. Merton, this case questioned the possibility of extending the duty of care to municipalities, and the presiding judge used the Anns test to determine the duty of care..