Supreme Court of Canada
Guay v. Sun Publishing Co. [1953] 2
S.C.R. 216
Date: 1953-06-26
Yvonne Guay (Plaintiff) Appellant;
and
Sun
Publishing Company Limited (Defendant) Respondent.
1952: October 30, 31,
November 3; 1953: June 26.
Present: Rinfret C.J. and
Kerwin, Estey, Locke and Cartwright JJ.
ON APPEAL FROM THE COURT OF
APPEAL FOR BRITISH COLUMBIA
Tort—Negligence—Newspaper—Negligent
misstatement—False report of death of husband and children—Whether actionable
by wife—Absence of malice—Whether duty owed—Nervous shock—Whether damages
recoverable.
The respondent published in one issue of its daily newspaper
printed in Vancouver, a news item stating that the appellant's husband and
their three children had been killed in an automobile accident in Ontario where
they were living. No such accident had taken place but the appellant read the
item and claimed that the resulting shock affected her health. The respondent
could not explain its publication. The appellant claimed damages for negligence
and did not allege fraud or malice or the existence of any contractual
relationship. The action was maintained by the trial judge but dismissed by a
majority in the Court of Appeal for British Columbia.
Held: (Rinfret C.J. and Cartwright J. dissenting), that
the appeal and the action should be dismissed.
Per Kerwin J.: Since there was no duty in law owed by
the respondent to the appellant, the former could not be held liable in
negligence for the shock and impairment in health suffered by the appellant as
a result of reading the report. The appellant was not a "neighbour"
of the respondent within the meaning of Lord Atkin's statement in Donoghue v.
Stevenson ([1932] A.C. 562), since she was not a person so closely and
directly affected by the publishing of the report that the respondent ought
reasonably to have had the appellant in contemplation as being affected
injuriously when it was directing its mind to the act of publishing.
Per Estey J.: Assuming that the respondent owed a duty
to the appellant to exercise reasonable care to verify the truth of the report,
because injury would be foreseeable to a reasonable person, the appellant
cannot succeed since the evidence does not establish that she suffered physical
illness or other injury consequent upon shock or emotional disturbance caused
by a reading of the report.
Per Locke J.: Since it was conceded on behalf of the
appellant that the respondent had acted without malice in publishing the
article believing the statements made to be true, there was no cause of action,
even though the respondent had acted carelessly in falling, before publication,
to make adequate inquiries as to their truth, and damage has resulted. Dickson
v. Reuter's Telegram Co. (1877) L.R. 3 C.P. 1; Derry. v. Peek (1889)
14 App. Cas. 366; Nocton v. Ashburton [1914] A.C. 932; Angus v.
Clifford [1891] 2 Ch. D. 449; Le Lievre v. Gould [1893] 1 Q.B. 491; Balden
v. Shorter [1933] 1 Ch. 427 and Chandler v. Crane [1951] 2
K.B. 164. Nothing decided in Donoghue v. Stevenson [1932] A.C. 562
affected the question to be determined.
[Page 217]
Per Rinfret C.J. and Cartwright J. (dissenting): There
is no analogy between the present case and an action for damages for
misrepresentation or for injurious falsehood; the present case is analogous to
a case in which the respondent has unintentionally but negligently struck the
appellant or caused some object to strike her. The respondent, as a reasonable
man, should have foreseen the probability of the appellant reading the report
and suffering injury as a result. (Donoghue v. Stevenson [1932] A.C. 562
and Hambrook v. Stokes Bros. [1925] 1 K.B. applied). Therefore a duty
rested upon the respondent to check the accuracy of the report before
publishing it.
2. The respondent failed in that duty.
3. The appellant can recover damages for nervous shock even
though there was no physical impact (Hay or Bourhill v. Young
[1943] A.C. 92).
4. The evidence as to damages does not warrant an interference
with the assessment made by the trial judge.
APPEAL from the judgment of
the Court of Appeal for British Columbia (1), reversing, O'Halloran J.A. dissenting, the
decision of the trial judge and dismissing the action for injurious falsehood.
D. L. Silvers for the
appellant.
D. McK. Brown for the
respondent.
The dissenting judgment of the
Chief Justice and of Cartwright J. was delivered by:—
CARTWRIGHT J.:—This is an appeal,
brought by special leave granted by the Court of Appeal for British Columbia, from a judgment of that court reversing,
by a majority, the judgment of Wood J. in favour of the appellant for $1,025
and costs and directing that the action be dismissed. O'Halloran J.A.,
dissenting, would have dismissed the appeal and on the cross-appeal would have
increased the damages to $3,275.
The material facts may be
summarized as follows. The appellant is a married woman. In February 1948 she
was living, separate from her husband, in the City of Vancouver.
Her husband was living with their three children in Northern Ontario. The respondent publishes a daily
[Page 218]
newspaper in the City of Vancouver. On
the 3rd February 1948, the defendant published the following item in its
newspaper:—
Ex-Vancouver Man, Children
Killed in Crash.
A former Vancouver man
and his three children were killed in an antomobile-train collision in Northern Ontario over the weekend, according to word received by relatives here.
Mrs. R. C. Guay, 1972 West
Sixth, said today she and her husband had been notified that her husband's
brother, Dick Guay, his daughter and two sons, are all dead.
The wife of the dead man is
believed to be in Vancouver, Mrs. Guay said.
Mr. Guay left Vancouver
last June and has been living in North
Bay. The accident occurred when he was
motoring with the three children from Timmins to North Bay. The news of the tragedy was sent here by another
brother who lives in Ontario.
The statement that Mr. Guay and
the children had been killed was untrue. They had not been concerned in any
accident. It was true, however, that the appellant's husband was known as Dick
Guay, that he had a brother whose name was R. C. Guay, that he had another
brother living in Ontario and that the children were a daughter and two sons.
The evidence does not disclose where R. C. Guay was living at the time of the
publication but there is nothing to suggest he was living in Vancouver. It
is clear that neither Mr. nor Mrs. R. C. Guay lived at the address mentioned,
1972 West Sixth. There is no evidence as to how or by whom the item was
furnished to the respondent. It seems to be a reasonable inference that it was
concocted by someone, acquainted with the affairs of the appellant and her
husband, who wished to hurt the appellant.
On the day on which the item was
published the appellant, in accordance with her usual custom, purchased a copy
of the respondent's newspaper, read the item, believed it, and suffered from
severe shock which somewhat seriously affected her health. She required
treatment by two doctors, extending over some months, was prevented from
carrying on her customary work and suffered a partial disability of indefinite
duration.
It is conceded that there was
neither malice nor fraud on the part of the defendant. The appellant claims
damages for negligence. She does not allege the existence of any contractual
relationship between herself and the respondent.
[Page 219]
The learned trial judge was of
opinion that under the principles stated in Donoghue v. Stevenson,
and Hay or Bourhill v. Young,
the respondent owed a duty to the appellant which it failed to perform, that
such failure caused the injuries suffered by her and that she was accordingly
entitled to judgment. The majority in the Court of Appeal were of opinion that
the respondent would be under no liability unless it had acted wilfully or
maliciously and consequently did not find it necessary to decide whether or not
it had been negligent.
The following questions were
argued before us. (i) Under the circumstances, did the respondent owe a duty to
the appellant to be careful? The appellant submits that it did. The respondent
submits that it owed no duty to the appellant other than a duty not to publish
false news, which might injure her, wilfully, fraudulently or maliciously. (ii)
If the respondent was under a duty to the appellant to take care, was there a
breach of such duty? (iii) Even if the foregoing questions are answered in
favour of the appellant could she recover damages for nervous shock
unaccompanied by any physical impact? and (iv) The quantum of damages.
It is first necessary to observe
that the cause of action alleged by the appellant is based on negligence
regarded as a specific tort in itself. In Grant v. Australian Knitting Mills
Ltd. , Lord
Wright, who delivered the judgment of the Judicial Committee, discusses the
judgments in Donoghue's case (supra) and says at page 103:—
It is clear that the decision
treats negligence, where there is a duty to take care, as a specific tort in
itself, and not simply as an element in some more complex relationship or in
some specialized breach of duty, and still less as having any dependence on
contract. All that is necessary as a step to establish the tort of actionable
negligence is to define the precise relationship from which the duty to take
care is to be deduced. It is, however, essential in English law that the duty
should be established: the mere fact that a man is injured by another's act
gives in itself no cause of action: if the act is deliberate, the party injured
will have no claim in law even though the injury is intentional, so long as the
other party is merely exercising a legal right: if the act involves lack of due
care, again no case of actionable negligence will arise unless the duty to be
careful exists.
[Page 220]
The learned trial judge refers to
the often quoted passage in the judgment of Lord Atkin in Donoghue's
case (supra) at page 580:—
At present I content myself
with pointing out that in English law there must be, and is, some general
conception of relations giving rise to a duty of care, of which the particular
cases found in the books are but instances. The liability for negligence,
whether you style it such or treat it as in the other systems as a species of
'culpa', is no doubt based upon a general public sentiment of moral wrongdoing
for which the offender must pay. But acts or omissions which any moral code
would censure cannot in a practical world be treated so as to give a right to
every person injured by them to demand relief. In this way rules of law arise
which limit the range of complainants and the extent of their remedy. The rule
that you are to love your neighbour becomes in law, you must not injure your
neighbour; and the lawyer's question, who is my neighbour? receives a
restricted reply. You must take reasonable care to avoid acts or omissions
which you can reasonably forsee would be likely to injure your neighbour. Who,
then, in law is my neighbour? The answer seems to be—persons who are so closely
and directly affected by my act that I ought reasonably to have them in
contemplation as being so affected when I am directing my mind to the acts or
omissions which are called in question.
The learned trial judge proceeds:—
As I stated above, the
article in the newspaper indicated that the wife and mother whose husband and
children were supposed to have been killed lived in Vancouver and she naturally
would read or at least hear of the article. Surely, therefore, she was the
defendant's neighbour.
In Hay or Bourhill v. Young
(supra) at page 111, Lord Wright points out "that the issue of duty or
no duty is, indeed, a question for the court, but it depends on the view taken
of the facts." The judgments of all the Law Lords who took part in the
last mentioned case appear to me to establish that in determining this issue of
duty or no duty it is material to consider what the defendant ought to have
contemplated as a reasonable man, and that, prima facie at least, a duty
to take care arises towards those individuals as to whom a reasonable man in
the position of the defendant would have anticipated that they would be injured
by the omission to take such care.
For the reasons given by the learned
trial judge and by O'Halloran J.A. I am of opinion that a reasonable man in the
position of the respondent would have foreseen the probability of the appellant
reading the news item and suffering serious injury as a result and that
consequently a duty rested upon the respondent to take care to check its
authenticity before publishing it; unless, as is argued for the respondent, the
authorities negative such a duty where the act complained of is the speaking or
writing of words.
[Page 221]
Counsel for the respondent
contends that Donoghue's case has never so far been applied to
negligence in words and that it has uniformly been held that fraud or malice is
an essential ingredient of a cause of action for damages based on words spoken
or written. He does not suggest any analogy between the case at bar and an
action for defamation but argues that it is similar to actions for damages for
misrepresentation or for injurious falsehood. In my view it is analogous to
neither. The gist of the former is the making of false statements to the
plaintiff whereby he is induced to act to his own loss; and that of the latter,
is the making of false statements to others concerning the plaintiff whereby he
suffers loss through the action of those others.
In my view the case at bar is an
action on the case for negligently inflicting injury to the person of the
appellant and thereby causing injury to her health, and is closely analogous
to, if not identical with, a case in which the defendant has unintentionally
but negligently struck the appellant or caused some object to strike him. In
principle I find it difficult to assert that a defendant who unintentionally
but carelessly injures an appellant by a blow or an electric shock should be
under liability but a defendant who causes a similar, and perhaps much more
serious, injury to an appellant by carelessly inflicting a mental shock by the
use of words should escape liability.
I find it unnecessary to attempt
to choose between the view of the majority and that of Denning L.J. in Candler
v. Crane Christmas and Co., which
was, in essence, an action for damages for misrepresentation, as I have already
expressed my view that the cause of action in the case at bar differs in kind
from that in a case where the appellant's loss is due to his having been
induced to act to his loss by representations made by the defendant. For
similar reasons I can derive little assistance from the judgment in Shapiro
v. La Morta ,
and Balden v. Shorter , both
of which were actions for injurious falsehood.
Two cases, Wilkinson v.
Downton , and Janvier
v. Sweeney ,
resemble the case at bar in several respects. In the former Wright J., and in
the latter the Court of Appeal, held that damages were recoverable for illne
[Page 222]
resulting from shock caused by
words spoken directly by the defendant to the plaintiff; but in both cases the
defendant knew when speaking the words that they were a false so that the
element of wilfulness, which is lacking in the case at bar, was present. In Janvier
v. Sweeney the Court of Appeal approved the decision in Wilkinson v.
Downton, and speaking of that decision Bankes L.J., said at pages 321 and
322:—
In my view that judgment was
right. It has been approved in subsequent cases. It did not create any new rule
of law, though it may be said to have extended existing principles over an area
wider than that which they had been recognized as covering, because the Court
there accepted the view that the damage there relied on was not in the
circumstances too remote in the eye of the law. The substance of that decision
may be found in the following passage from the judgment of Wright J. After
referring to the doctrine of Pasley v. Freeman and Langridge v. Levy the
learned judge said: "I am not sure that this would not be an extension of
that doctrine, the real ground of which appears, to be that a person who makes
a false statement intended to be acted on must make good the damage naturally
resulting from its being acted on. Here there is no injuria of that kind. I
think, however, that the verdict may be supported upon another ground. The
defendant has, as I assume for the moment, wilfully done an act calculated to
cause physical harm to the plaintiff—that is to say, to infringe her legal
right to personal safety, and has in fact thereby caused physical harm to her.
That proposition without more appears to me to state a good cause of action,
there being no justification alleged for the act. This wilful injuria is in law
malicious, although no malicious purpose to cause the harm which was caused nor
any motive of spite is imputed to the defendant."
In Dulieu v. White and Sons
,
the plaintiff suffered illness as a result of nervous shock caused by the
defendant's servant negligently driving a van into the public-house of the
plaintiff's husband while the plaintiff was behind the bar. There was no actual
impact upon the person of the plaintiff. It was held she was entitled to
recover damages. Phillimore J. said at page 682:
I think there may be cases
in which A owes a duty to B not to inflict a mental shock on him or her, and
that in such a case, if A does inflict such a shock upon B—as by terrifying B—and
physical damage thereby ensues, B may have an action for the physical damage,
though the medium through which it has been inflicted is the mind.
and at page 683:—
I cordially accept the
decision of my brother Wright in Wilkinson v. Downton that every one has a
legal right to his personal safety, and that it is a tort to destroy this
safety by wilfully false statements and thereby to cause a physical injury to
the sufferer. In that case it will be observed that the only physical action of
the wrong-doer was that of speech.
[Page 223]
Dulieu v. White and Sons was approved by the Court of Appeal in Hambrook v.
Stokes Bros., in
which damages were recovered for injuries caused to the plaintiff's wife by
shock caused by the defendants negligently permitting their unattended lorry to
rush down a steep hill, the shock being caused by the wife's fear, not for her
own safety, but for that of her children. It will be observed that in both of
these cases there was no element of wilfulness or malice, but the shock was
administered by the instrumentality of a vehicle, not of words.
I share the view of O'Halloran
J.A. and the learned trial judge that the American decisions to which counsel
referred are not of great assistance as they do not discuss the problem in the
light of the principles laid down in Donoghue's case, and for this reason I
refrain from a detailed examination of them.
While it is true, as is pointed
out by Lord Haldane in Nocton v. Ashburton ,
that "liability for negligence in word has in material respects been
developed in our law differently from liability for negligence in act" I
can find no reason for refusing to apply the principles stated in the passage
from Lord Atkin's speech in Donoghue's case, quoted above, to the case of a
false statement communicated directly by a defendant to a plaintiff in such
circumstances that a reasonable man in the position of the defendant would have
foreseen the probability of the mere communication causing a serious shock with
resulting injury to the health of the plaintiff. Wrottesley J. in Old Gate
Estates v. Toplis ,
expresses the view that the application of Donoghue's case is confined
to negligence which results in danger to life, danger to limb or danger to
health. It is not necessary to decide whether this is always so but in my view
Donoghue's case should apply to the particular facts of the case at bar where
what the respondent should have foreseen was the probability of danger to the
health of the appellant. The circumstance that in Dulieu v. White and Sons
and in Hambrook v. Stokes Bros. the shock was caused by negligently
presenting a vehicle to the view of the person shocked in such circumstances as
to terrify her while in the case at bar the shock was caused by negligently
presenting the false news item to the appellant
[Page 224]
does not seem to me to be a
satisfactory ground for affirming liability in the one case and denying it in
the other. I cannot distinguish in principle between liability for nervous
shock caused to a mother by carelessly allowing a truck to run away and so to
cause her to think that it will injure her children and liability for nervous
shock caused to her by carelessly communicating a false statement to her which
will cause her to believe that all her children have met a violent death.
Indeed, in my opinion, the probability of injurious shock to the claimant would
be more readily foreseen in the latter instance than in the former.
In my opinion Hambrook v.
Stokes Bros. rightly decides that the right to recover damages which result
from nervous shock negligently caused to the plaintiff is not limited to cases
in which the shock arises from a reasonable fear of immediate personal injury
to the plaintiff. It is true that that decision has not been finally passed
upon by the House of Lords. It was dealt with in all the judgments delivered in
Hay or Bourhill v. Young (supra). Lord Thankerton and Lord Macmillan
reserved their opinion in regard to it. Lord Russell of Killowen said that he
preferred the dissenting judgment of Sargant L.J. to the decision of the
majority but that the judgment of the House did not amount to a disapproval of
that decision. Lord Wright stated that as at present advised he agreed with it.
Lord Porter refers to it as showing the high water mark reached in claims of
the character under discussion, and explains the dissent of Sargant L.J. as
being based on the view that the injury complained of could not reasonably have
been anticipated and therefore the defendant had broken no duty which he owed
to the plaintiff. In the result, it appears to me that we are free to follow
Hambrook v. Stokes Bros. and I have already indicated my view that we should do
so. I think that the existence of liability for shock negligently caused should
be determined not by inquiring whether the shock resulted from fear for the
personal safety of the claimant but rather by inquiring whether a reasonable
person in the position of the defendant would have foreseen that his negligent
act would probably result in shock injurious to the health of the claimant.
[Page 225]
I conclude, as did the learned
trial judge, that the respondent did owe a duty to the appellant to take
reasonable care not to inflict a mental shock on her by communicating the false
item to her and that the first question listed above should accordingly be
answered in favour of the appellant.
The second question presents
little difficulty. I agree with O'Halloran J.A. and the learned trial judge
that the respondent failed in its duty to take care. Inquiries occupying only a
few minutes would have shewn that no such person as Mrs. R. C. Guay lived at
the address stated in the item. The evidence of the respondent's witness quoted
by O'Halloran J.A. seems to me to conclude this question against the
respondent.
The third question would present
no difficulty if it were not for the decision of the Judicial Committee in
Victorian Railway Commissioners v. Coultas .
For the reasons given by O'Halloran J.A., in the case at bar, those given by
Middleton J.A., speaking for the Court of Appeal for Ontario in Negro v.
Pietros Bread , and
those given by Hogg J., as he then was, in Austin v. Mascarin ,
I think that we are not bound to follow and ought not to follow the decision in
the Coultas case. I would respectfully adopt as a correct statement of the law
the following passage from the judgment of Lord Macmillan in Hay or Bourhill
v. Young (supra) at page 103:—
It is no longer necessary to
consider whether the infliction of what is called mental shock may constitute
an actionable wrong. The crude view that the law should take cognizance only of
physical injury resulting from actual impact has been discarded, and it is now
well recognized that an action will lie for injury by shock sustained through
the medium of the eye or the ear without direct contact.
It follows from the above reasons
that I think that the appeal should be allowed and it remains to consider the
fourth question, whether the judgment of the learned trial judge should be
restored simpliciter or whether the damages should be increased in
accordance with the view of O'Halloran J.A. After an anxious consideration of
all the evidence dealing with the question of damages, I have reached the
conclusion that we ought not to interfere with the assessment made by the
learned trial judge, who had
[Page 226]
the advantage, always great and
in this case peculiarly so, of actually seeing and hearing the witnesses, and
particularly the appellant herself.
Before parting with the matter I
wish to mention the argument addressed to us that if the judgment of the
learned trial judge is restored it will, in effect, amount to a decision that a
newspaper must warrant the truth of everything it prints. In my view there is
nothing in the judgment of the learned trial judge or in what I have said above
which has any such effect. This decision does not touch the case of a reader of
a newspaper who suffers financial loss through acting to his detriment on
inaccurate information which he reads in the paper. The questions involved in
such a case are not before us, as they would have been if, for example, the
appellant had been induced by reading the item to fly to Timmins
thereby incurring expense. In this regard I think it well to follow the example
set by Lord Wright in Grant v. Australian Knitting Mills, Ld. (supra) where,
faced with a somewhat similar argument, he said at page 107:—
In their Lordships' opinion
it is enough for them to decide this case on its actual facts. No doubt many
difficult problems will arise before the precise limits of the principle are
defined: many qualifying conditions and many complications of fact may in the
future come before the Courts for decision. It is enough now to say that their
Lordships hold the present case to come within the principle of Donoghue's
case,…
I would allow the appeal and
restore the judgment of the learned trial judge. The appellant should have her
costs in the Court of Appeal and in this Court, the respondent should have its
costs of the cross-appeal in the Court of Appeal.
KERWIN J.:—In one issue of its
daily newspaper printed in Vancouver, the respondent published a news item stating that
the husband and three children of the appellant had been killed in an accident
in Northern Ontario. This report was untrue. The information leading to the
publication did not come from one of the recognized press services or from any
of the respondent's reporters or correspondents but apparently from someone who
must have known of the appellant and the whereabouts of her husband and
children. The respondent was unable to say who that was or the manner in which
the information was conveyed to it. The respondent was not actuated by malice
[Page 227]
and there was no contractual
relationship between it and the appellant. Upon consideration of the evidence,
I am satisfied that the trial judge rightly found that the respondent was
negligent in publishing the item and therefore the question is whether it is
liable in negligence for the shock and impairment in health suffered by the
appellant as a result of her reading the report. There is no authority in this
Court that compels us to decide either way but there is a considerable body of
opinion leading to an answer in the negative.
Negligence is a separate tort: Donoghue
v. Stevenson : Grant
v. Australian Knitting Mills Ltd. . Hay
or Bourhill v. Young .
Several cases bearing upon the point to be determined in this appeal have been
decided both before and after this proposition was firmly established, some of
which will now be referred to. Derry v. Peek ,
was an action for damages for deceit, and the speeches of all the members of
the House of Lords and the reasons for judgment in subsequent cases referring
to that decision must be read with that fact in mind. In Shapiro v. La Morta
,
as stated by Lord Justice Banks at 626, the Court of Appeal proceeded upon the
basis that:— "It was not disputed that in order to succeed the plaintiff
must prove that the publication by the defendants was maliicious." From
this I take it that counsel had admitted that malice was necessary, and it is
in the light of that circumstance that one must read the statement of Lord
Atkin at page 628:— "I think the plaintiff fails in consequence of being
unable to prove that the damage was caused by a representation that was
malicious."
However, it had been laid down by
the Common Pleas in Rawlins v. Bell and by
the Exchequer Chamber in Ormrod v. Huth ,
that an injury caused by a statement false in fact but not so to the knowledge
of the party making it, or made without intent to deceive, will not support an
action. In Playford v. United Kingdom Electric Telegraph Company Limited
,
the Queen's Bench decided that the defendant was not liable in damages for a
mistake made by it in transmitting a telegram sent to the plaintiff
[Page 228]
by a third party, upon which the
plaintiff acted to his detriment. This decision apparently proceeded upon the
ground that there was no contract between the plaintiff and the defendant but
in Dickson v. Reuter's Telegram Company, Limited ,
the Common Pleas Division held that the decision disposed of the case before it
where the defendant had negligently delivered to the plaintiffs a message
intended for a third person and the plaintiffs had suffered damages as a
consequence of acting upon the telegram. Rawlins v. Bell and Ormrod v. Huth
were referred to by Denman J., speaking on behalf of the Court. The judgment of
the Common Pleas Division was affirmed by the Court of Appeal .
Lord Justice Bramwell stated that plaintiffs' counsel had admitted that the
case prima facie fell within the general rule "That no action is
maintainable for a mere statement although untrue and although acted on to the
damage of the person to whom it is made unless that statement is false to the
knowledge of the person making it." After posing the question whether any
duty arose by law he proceeded:— "If it did arise by law, the consequence
would be that the general rule which has been admitted to exist is inaccurate,
and that it ought to be laid down in these terms, that no action will lie
against a man for misrepresentation of facts whereby damage has been occasioned
to another person, unless that misrepresentation is fraudulent or careless. But
it is never laid down that the exemption from liability for an innocent
misrepresentation is taken away by carelessness." Lord Justice Brett said
that the general rule was that no erroneous statement is actionable unless it
be intentionally false and that this seemed to be admitted by the plaintiffs'
counsel. Lord Justice Cotton pointed out that it was admitted that
misrepresentation alone would not have supported an action but that it was
contended that owing to the nature of the business carried on by the defendants
they were bound to warrant the accuracy of the message, or at least to
guarantee that every precaution had been taken by their agents to avoid
mistake. In Balden v. Shorter ,
Maugham J. decided that an action would not lay if a person by a false
statement made negligently but in the belief that it was true led a third
person to act to his damage.
[Page 229]
In Nocton v. Ashburton ,
the House of Lords decided that Derry v. Peek did not prevent an action
succeeding where there was a fiduciary relationship between a mortgagee and a
solicitor but, at page 948, Lord Haldane pointed out that "liability for
negligence in word has in material respect been developed in our law
differently from liability for negligence in act." In truth there appear to
be weighty reasons for differentiating between the liability in these two
classes of cases. Defamatory statements, oral or written, were in very early
times placed in a category by themselves and with the protection afforded by
the law to those so affected there was a reluctance to hold liable in damages
the publishers of incorrect non-defamatory statements made negligently but not
maliciously. It is important to note that the same reluctance existed in the
State of New York because the judgment of Cardoza J., speaking for the
majority of the Court of Appeals, in the well-known case of MacPherson v.
Buick , was
approved by two of their Lordships in Donoghue v. Stevenson.
The Court of Appeals, speaking
through the same judge who by then had become Chief Judge, also decided Glanzer
v. Shepherd . There
a public weigher employed by a seller of beans by his negligence in weighing,
or in reporting the weight, gave to the purchaser a certificate which
erroneously overstated the amount delivered. A third party relying upon the
certificate sustained damages for which the weigher was held liable upon the
ground that the controlling circumstance was not the character of the
consequences but its proximity or remoteness in the thought and purpose of the
action, and that the copy of the weigh slip was sent to the plaintiff for the
very purpose of inducing action. Subsequently, in Jaillet v. Cashman,
the Court of Appeals, affirming the judgments below, held that a stock-ticker
company was not liable where it had given wrong information as to the decision
of a Court, as a result of which a speculator reading the tape in a broker's
office was misled into dealing in shares the value of which was affected by the
decision. No reasons were given but the trial Court had compared the ticker
services to a newspaper, stating that practical expediency was more important
than logic. Still later, in Ultra Mares v. Houche ,
[Page 230]
Chief Judge Cardoza delivered the
unanimous judgment of the Court of Appeals and, referring to Jaillet v.
Cashman, stated that "if liability had been upheld, the step would
have been a short one to the declaration of a like liability on the part of
proprietors of newspapers." In the case then before him, public
accountants were held not liable for an inaccurate certificate as to a
company's finances if made merely negligently and not fraudulently. The Chief
Judge pointed out at page 185 that if, as was argued, the principle should be
extended so as to cover such a case "the extension, if made, will so expand
the field of liability for negligent speech as to make it nearly, if not quite,
co-terminus with that of liability for fraud." Such an expansion had
already been negatived by Lord Justice Bramwell in the Dickson case.
We may now revert to the decision
in Donoghue v. Stevenson, upon which the trial judge and the dissenting
judge in the Court of Appeal relied. While there are traces in some quarters of
a distinction being drawn between damages for injuries to a person in body or
mind or damages to a person's property on the one hand, and economic loss on
the other, there would appear to be difficulty in ascertaining a sound basis
for such a distinction. On the other hand there may be differences of substance
between cases where a person of his own volition proceeds to act upon a
negligent but non-fraudulent mis-statement, and where he does not so act but
suffers damage as a direct result of the mis-statement. No opinion, therefore,
is expressed as to the decision of the Court of Appeal in Candler v. Crane
.
In any event it is unnecessary to explore these matters further because I am of
opinion that in this case the appellant was not a "neighbour" of the
respondent within the meaning of Lord Atkin's oft-quoted statement in Donoghue
v. Stevenson since she was not a person so closely and directly affected
by the publishing of the report that the respondent ought reasonably to have
the appellant in contemplation as being affected injuriously when it was
directing its mind to the act of publishing. This being so, there was no duty
in law owed by the respondent to the appellant.
The appeal should be dismissed
with costs.
[Page 231]
ESTEY, J.:—The respondent
published, under date of February 3, 1948, in its newspaper the Vancouver
Sun, the following:
EX-VANCOUVER MAN, CHILDREN
KILLED IN CRASH
A former Vancouver man
and his three children were killed in an automobile-train collision in Northern
Ontario over the weekend, according to word received by relatives here.
Mrs. R. C. Guay, 1972 West
Sixth, said today she and her husband had been notified that her husband's
brother, Dick Guay, his daughter and two sons, are all dead.
The wife of the dead man is
believed to be in Vancouver, Mrs. Guay said.
Mr. Guay left Vancouver
last June and has been living in North
Bay.
The accident occurred when
he was motoring with the three children from Timmins to North Bay.
The news of the tragedy was sent here by another brother who lives in Ontario.
This news item was, upon the
evidence, probably delivered at the office of the respondent by some person
whose identity has not been determined. It was a false statement, published as
received, without in any way checking its contents.
The appellant read this item on
the evening of its publication and was naturally deeply grieved and affected. She
inquired at the address given and found that no Mrs. Guay resided there, nor
could she obtain any information with respect to the contents of the news item.
She later inquired by telephone of the respondent and received a very
indifferent answer. A friend later telephoned with the same result, but no
effort was made to inquire of the officers or employees in the more responsible
positions. In the result, respondent officers did not learn of the misstatement
until the appellant consulted a lawyer in the fall who, under date of November
5, 1948, wrote a letter advising that based upon "negligent editing"
a claim for damages would be made. The investigation then made by the
respondent could not ascertain precisely just how the statement had been
received, more than that it was not from one of the recognized news services.
The appellant alleges that as a
consequence of reading this news item she "suffered shock resulting in an
acute anxiety state." On her behalf it is submitted that such shock was a
foreseeable consequence within the meaning of
[Page 232]
our law of negligence and,
therefore, before publication the respondent owed a duty to her to exercise
reasonable care to verify the truth thereof.
Counsel for the appellant did not
cite, nor have we found in our law, a decision directly in point. He submits,
however, that if not before then since the decision of Donoghue v. Stevenson
,
respondent owed the duty already expressed to the appellant and, because she
suffered shock resulting from a breach thereof, she should recover therefor.
Counsel for the respondent
submits that throughout the decided cases and recognized texts, both before and
since the Donoghue decision, statements are found to the effect that
recovery is not permitted for damage resulting from statements negligently
made.
In Salmond on the Law of Torts,
10th Ed., 1945, at p. 580, the learned author, in discussing the law of deceit,
states:
Mere negligence in the
making of false statements is not actionable either as deceit or as any other
kind of tort. This is the anomalous rule established by the House of Lords in
the leading case of Derry v. Peek, (1889) 14 App. Cas. 337. Although in almost
all other forms of human action a man is bound to take reasonable care not to
do harm to others, this duty does not extend to the making of statements on
which other persons are intended to act.
In Pollock on Torts, 11th Ed.,
1951, at p. 430, the learned author, after discussing liability in tort arising
out of a contract in favour of a contracting party against one not a party to
the contract, goes on to discuss that under English law a telegraph company is
not liable to the recipient of a telegram for damages caused by the negligent
transmission of that message, while in the United States a telegraph company
would be liable to such a recipient. After pointing out that the United States
decisions "are on principle correct," the learned author goes on to
state at p. 430:
Generally speaking, there is
no such thing as liability for negligence in word as distinguished from act and
this difference is founded in the nature of the thing.
In Dickson v. Reuter's
Telegram Company , cited
by the learned author, Brett L.J., at p. 7, states:
If the case for the
plaintiffs be simply that there was a misrepresentation upon which they have
reasonably acted to their detriment, it must fail, owing to the general rule
that no erroneous statement is actionable unless it be intentionally false.
[Page 233]
In a note at p. 429 of Pollock on
Torts, 11th Ed., referring to the Dickson case, it is stated:
Its authority would be
impaired if Lord Atkin's wide principle in Donoghue v. Stevenson, 1932, A.C.
562, could be accepted, but it is submitted that it is still good law.
Bowen L.J. in Le Lievre v.
Gould ,
referring to "the suggestion that a man is responsible for what he states
in a certificate to any person to whom he may have reason to suppose that the
certificate may be shewn", adds that
The law of England does
not go to that extent: it does not consider that what a man writes on paper is
like a gun or other dangerous instrument, and, unless he intended to deceive,
the law does not, in the absence of contract, hold him responsible for drawing
his certificate carelessly.
The foregoing quotations and
others to similar effect are found in discussions of false statements
intentionally made or statements which, when negligently made, have induced a
person to pursue a course of action from which he suffered financial loss. They
are, therefore, not made in relation to a discussion of an issue such as here
raised.
Respondent submitted that Candler
v. Crane Christmas & Co ,
supported his contention. In the Candler case a firm of accountants was
employed to prepare a statement of accounts and a balance sheet. Their clerk,
in the course of his duty, negligently prepared the statement of accounts and a
balance sheet which he knew would be used to induce the plaintiff to invest.
The latter, relying thereon, did invest and suffered a loss. The accountants,
however, were held not liable. The majority of the Lord Justices felt bound by Le
Lievre v. Gould, supra, while Lord Denning, in a dissenting opinion, though
since Donoghue v. Stevenson, supra, such precedents ought to be
reviewed. Whatever the decision may be when such a case is reviewed by the House
of Lords, it and similar cases have to do with negligent misstatements which
induced a decision on the part of the plaintiff to pursue a course of conduct
from which he suffered financial loss. There the essential factor is the
inducement founded upon the misstatement, which is quite different from the
present case where the contention is that the respondent suffered shock from a
reading of the misstatement.
[Page 234]
While there does not appear to be
any difference in principle between pecuniary and personal injury, historically
greater emphasis has been placed upon the latter. What is important is the
difference in the nature and character of negligent misstatements which cause
someone to act to his detriment and those that normally and usually cause shock
and consequent physical illness or other injury.
In the absence of binding
authority the issue must be determined upon principle. At common law defamatory
statements and malicious statements relative to title or goods and deceit are
treated in a manner separate and distinct from acts or other conduct. On the
other hand, a person who intentionally makes false statements is liable in
damages for personal injuries which directly result therefrom. Wilkinson v.
Downton ; Janvier
v. Sweeney ; Bielitzki
v. Obadisk .
That facts similar to those here
present have not been the subject of litigation in our own courts may be due to
several factors. Newspapers gather and publish news in a manner that, having
regard to the nature of their business, even if due care be used, errors and
mistakes will occur. These errors and mistakes are so common that the natural
impulse is, upon reading such an item, that it may not be true and to commence
appropriate inquiry. Moreover, the question of liability for physical injuries
consequent upon shock has been of comparatively recent origin and the law in
relation thereto does not appear to be settled. Victorian Railways
Commissioners v. Coultas ;
Dulieu v. White & Sons ; Hambrook
v. Stokes Bros. ; Owens
v. Liverpool Corporation ; Bourhill
(Hay) v. Young .
Whatever the reason may be, no similar case has been found in the reports in
our own country or in Great Britain and counsel cited only two in the United States.
In the United States
the plaintiff in both cases was denied recovery. Herrick v. Evening Express
Pub. Co.,
is a decision of the Supreme Judicial Court of the State of Maine. The
Portland Evening Express Advertiser negligently published, under the heading
"Boy Dies Across," a
[Page 235]
picture of the plaintiff's son
and a report of his death. In fact the plaintiff's son was not dead. Recovery
was denied on the basis that damages for mental suffering, apart from physical
impact, could not be recovered.
Curry et ux. v. Journal Pub.
Co. et al ,
is a case almost identical in its facts. The proprietors of the Albuquerque
Journal, a daily newspaper in New Mexico, negligently published that "George Curry, 70,
former territorial governor of New
Mexico,… died here Sunday
afternoon." In fact he had not died. This news item was read by his son
Clifford Curry and the latter's wife and as a consequence both suffered mental
and physical injury. The court stated two questions, first "Are damages
that result from words negligently spoken or written, as distinguished from
acts, actionable?" and second "Can damages be recovered from the
publishers of a newspaper for the consequences of grief resulting in physical
injury, occasioned by reading in such paper a negligently published false
report of the death of the reader's parent?" Both British and United States
authorities were considered and the decision was undoubtedly influenced by
cases similar in character to the Candler case, supra, and particularly
the decision of Jaillet v. Cashman
(affirmed in the Appellate Division , and
in the Court of Appeals ).
There the defendant supplied to its subscribers items of current news by what
is known as a ticker service. The plaintiff read from this ticker service an
incorrect report of a decision of the United States Supreme Court dealing with
the matter of taxation. As a consequence the plaintiff sold his stock and
suffered a loss which he could not recover from the operator of the ticker
service. In the course of the reasons for judgment it was stated at p. 173:
No attempt has been made by
any American court…, nor will be by us, to state rules which will apply
generally to all conditions or circumstances, which will authorize a recovery
for damages resulting from false words negligently written or spoken, and in
the absence of contract, malice, intentional injury, or other like
circumstance. We hold that in some such cases recovery may be had, but we will
confine our decision to the facts of this particular case.
[Page 236]
The Court found more than one
basis upon which to deny liability, one of which was expressed at p. 174 as
follows:
In this world of disease and
death the families of aged persons, while never entirely prepared, yet may not
be greatly surprised to hear of their death at any time; and such serious
consequences to the plaintiffs, and particularly to Mrs. Curry (a daughter-in-law
of Governor Curry), are so unusual and unlikely to happen under any
circumstances, and certainly not to persons in good health (and nothing appears
to the contrary), that it cannot be said there was an appreciable chance of
such results; and defendants, as reasonable men, could not have realized that
there was an appreciable risk to the health of plaintiffs from reading the
article, though they had known of plaintiffs' existence, which does not appear.
The Court, it would appear, in
the foregoing is directing its mind to the issue of the existence of a duty
rather than to that of remoteness of damage.
Lord Wright, in Bourhill (Hay)
v. Young , after
pointing out that damage by mental shock may give a cause of action, went on to
state at p. 106:
Where there is no immediate
physical action by the defendant on the plaintiff, but the action operates at a
distance, or is not direct, or is what is called nervous shock, difficulties
arise in ascertaining if there has been a breach of duty.
The difficulty here envisaged is
emphasized by a consideration of Dulieu v. White & Sons ,
where Kennedy J. was of the opinion that the shock, in order to provide a basis
for liability, must arise from "a reasonable fear of immediate personal
injury to oneself," which the Court of Appeal refused to follow in Hambrook
v. Stokes Bros. . This
conflict of opinion, though considered, was not resolved in Bourhill (Hay)
v. Young, supra.
In view of the more recent
development of the law of torts and the present state of authorities, I am not
prepared to say that there can never be recovery for physical illness or other
injury caused by shock consequent upon negligent misstatements. Whether in a
particular case such as the present a duty to exercise due care exists because
injury, as a normal and ordinary consequence, would be foreseeable to a
reasonable person, always presents an important and difficult question. While
rather disposed to the conclusion upon the authorities already mentioned and,
in particular, the remarks in Bourhill (Hay) v. Young, supra, and
those of Professor Goodhart in Modern Law
[Page 237]
Review, Vol. 16 at p. 25, that in
the particular facts of this case a duty does not rest upon the respondent, it
is unnecessary to decide that issue. Even if it be assumed that such a duty
rested upon the respondent, which I do not decide, it is an essential part of
the appellant's case that damages be established. J.R. Munday Limited v.
London County Council ;
Pollock on Torts, 15th Ed., p. 139; Winfield Law of Torts 5th Ed., p. 19.
No question as to the sufficiency
of the proof of damage appears to have been raised before the learned trial
judge. The evidence discloses that at the time of reading the article the
appellant was emotionally upset, but it does not disclose illness or absence
from work at that time. While this is not conclusive, it is, in the
circumstances of this case, significant. The appellant had purchased a
restaurant in 1946 and had sold it in December, 1947, when she took a trip east
and visited her children. She returned to Vancouver in January, 1948, and went to work at Pratts Secret
Service with whom she was employed as an investigator "checking on the
employees" of another employer. At the time of reading the item here in
question she was so employed and states that a few weeks later she was asked to
resign, as her work was not satisfactory. In the following May, 1948, she took
back the restaurant and again sold it in May, 1949. Thereafter she accepted a position
at Eaton's which she retained until January, 1950, when she was laid off
because "they were over-staffed." She went back to work for Eaton's
in the spring of 1950 and at the time of the action was employed with the B.C.
Electric. No person was called who had been associated with her either in
business or socially who deposed to any illness or change of conduct on her
part. She herself stated:
I would not say that I am
sick or anything, but any time any little things upset me so badly. When I
balance the cash, if there is a few cents short, I will be nights without
sleep. Everything upsets me. Otherwise, physically, I am O.K.
The medical evidence is far from
conclusive. Although the article appeared on February 3, a doctor was not
consulted until October. He deposed that there was no physical disability other
than the fact that she was suffering from an anxiety as exemplified by symptoms
of pulse and moist or cold palms and soles. He did express his opinion,
[Page 238]
based upon her history as she gave
it to him and his own examination, that her condition was directly related to
the reading of the news item here in question. He, however, went on to depose
that the fact that she had been living apart from her husband and children,
with the attendant uncertainty and insecurity, would cause her condition of
anxiety such as he found it. Another doctor agreed that her condition might be
the result of her separation from husband and family and, in referring
particularly to emotional disturbances, stated:
I think, in medical
experience and psychological experience as it usually occurs it is an
examination of various factors, and it is difficult to single out one factor
and say, "That is the factor".
In Wilkinson v. Downton,
supra, where, because of the intentionally made false statement, the
plaintiff suffered shock causing physical illness and other injury, the remarks
of Wright J. at p. 58 are relevant to this issue:
These consequences were not
in any way the result of previous illhealth or weakness of constitution; nor
was there any evidence of predisposition to nervous shock or any other
idiosyncrasy.
Moreover, it is important to keep
in mind what must be proved in order that damages may be recovered, as stated
in Pollock on Torts, 15th Ed. at p. 37, as follows:
A state of mind such as fear
or acute grief is not in itself capable of assessment as measurable temporal
damage. But visible and provable illness may be the natural consequence of
violent emotion, and may furnish a ground of action against a person whose
wrongful act or want of due care produced that emotion…. In every case the
question is whether the shock and the illness were in fact natural or direct
consequences of the wrongful act or default; if they were, the illness, not the
shock, furnishes the measurable damage, and there is no more difficulty in
assessing it than in assessing damages for bodily injuries of any kind.
In my opinion the evidence does
not establish that the appellant suffered physical illness or other injury
consequent upon shock or emotional disturbance caused by a reading of the item
in question.
The appeal should be dismissed
with costs.
LOCKE, J.:—This is an appeal from
a judgment of the Court of Appeal for British
Columbia
which allowed the appeal of the present respondent from a judgment for damages
awarded against it at the trial by Wood, J. O'Halloran, J.A. dissented and
would have dismissed the appeal and increased the amount of damages awarded.
[Page 239]
The question to be determined is
one of general importance. The respondent company publishes a daily newspaper
called the Vancouver Sun having a large circulation in Vancouver and
throughout the Province of British Columbia. On February 3, 1948, there appeared in the newspaper the following
article:—
Ex-Vancouver man, Children
Killed in Crash
A former Vancouver man
and his three children were killed in an automobile-train collision in Northern
Ontario over the weekend, according to word received by relatives here.
Mrs. R. C. Guay, 1972 West
Sixth, said today she and her husband had been notified that her husband's
brother, Dick Guay, his daughter and two sons, are all dead.
The wife of the dead man is
believed to be in Vancouver, Mrs. Guay said.
Mr. Guay left Vancouver
last June and has been living in North
Bay.
The accident occurred when
he was motoring with the three children from Timmins to North Bay.
The news of the tragedy was sent here by another brother who lives in Ontario.
No such accident had taken place.
There was no such person as Mrs. R. C. Guay living at the address given and
there is no evidence that anyone of that name had made any such statement as
was attributed to her by the article.
The appellant, the wife of the
man referred to as "Dick" Guay and the mother of the three children,
by her statement of claim alleged that the publication of the article was
negligent on the part of the respondent and that, as a result of such
publication she was caused to believe that her husband and children had been
killed and, in consequence, suffered shock which resulted in an acute state of
anxiety, as a consequence of which she had been unable to carry on her
customary occupation and would, for an indefinite time, be partially disabled.
She further claimed that she had for a period of approximately three weeks been
unable to discover the truth and, believing during such period that her
children and husband were dead, had suffered intense mental anguish which
affected her mental and physical well-being. Malice on the part of the
respondent was not pleaded.
While the question to be
determined is a matter of law, it is, I think, of some importance to consider
the facts in this particular case, in order to appreciate the extent of the
liability of newspapers contended for by the appellant.
[Page 240]
The appellant lives in Vancouver
and, at the time of the publication of the article in question, was living
apart from her husband, in accordance with the terms of an agreement of
separation made between them on February
4, 1947. Three children had been born
of her marriage to Ulderic Guay and by the terms of the agreement the husband
undertook the custody of the children and their maintenance and support and it
was agreed that he should be at liberty to remove them to the Town of Val
Gagni, Ont., where his brother and sister resided and where suitable schooling
and maintenance might be afforded to the children. The parties agreed
thereafter to live separate and apart, the wife to be free of any control or
authority of the husband and surrendering all claims upon him for support or maintenance.
The agreement contained further provisions that the wife should have the right
of access to the children at all reasonable times. In accordance with this
agreement, Guay had removed the children to Timmins, Ont. during the summer
of 1947 and the appellant had spent Christmas and New Year's with them at that
place, returning to Vancouver on January 7, 1948. It was on February 2 of that
year that she saw the article in question.
While it might have been expected
that the appellant reading of the death of all the members of her family would
have either telephoned immediately to the persons in Timmins with whom her
children resided to obtain further information and to learn where and when they
were to be buried, or obtained this information by telegraph, she did none of
these things. According to her, she had some friends telephone to the Sun
newspaper but they could not get any "satisfactory explanation" and
accordingly she wrote to her husband's relatives in Ontario but
got no answer. She also wrote to her mother who, in turn, wrote to her eldest
brother in Quebec to investigate whether the article had appeared in
the Eastern papers. The brother apparently wired the Chief of Police in Timmins who
informed him that there never had been such an accident. He then wired this
information to his mother who lived in Saskatchewan, who, in turn, forwarded the telegram to Mrs. Guay
at Vancouver. According to the appellant, she received this wire
which had been sent to her brother from Timmins on February 19 around the beginning of March.
[Page 241]
She had, however, some three or
four weeks after February 2 received a letter from one of the children, which
was the first intimation she had that the article had been untrue.
At the time of the publication
the appellant was employed as a store detective by a commercial firm in Vancouver and
while she continued in that employment for a few weeks she was so upset by the
news that she was unable to carry on her duties and was asked by her employer
to resign. She first consulted a doctor on October 27, 1948. According to her, she had been nervous and upset since reading the
article but, as she thought there was nothing wrong with her physically, she
had not thought that there was any point in seeing a physician. Doctor Kaplan,
whom she first consulted, had examined her and found that her pulse rate was
high, that she had an increased blood pressure and suffering from sweating of
the palms with cold extremities, these symptoms indicating to him that she was
suffering anxiety. Doctor Kaplan had experience in psychiatric work and after
hearing Mrs. Guay's story prescribed concentrated therapy. In his opinion, her
condition was directly related to the incident in question.
While Mrs. Guay had telephoned to
the newspaper office a few days after the publication, the person to whom she
spoke and whose identity does not appear told her that the reporter who had
turned in the article was out and was unable to give her any information. The
employer of her sister, at the latter's instance, also telephoned to the
respondent's office and spoke to someone who, he thought, was a person at the
news desk who could not tell him the source of the information upon which the
article was based. It was not until November 5, 1948, more than nine months
after the time of publication, that the solicitors wrote the publishing company
to say that the appellant claimed damages for negligence, by reason of the
publication. In the letter it was said that, as a result of what was described
as "a series of fortuitous circumstances" Mrs. Guay had been unable
to discover the erroneous nature of the report for some weeks.
According to Mr. Charles F.
Bailey, the business manager of the respondent company, the first intimation
that had been received by the respondent that the article published
[Page 242]
had been incorrect was this
letter from the solicitors. After receiving the letter, endeavours had been
made to locate the R. C. Guay referred to in the article but no one of that
name lived at 1972 West 6th Avenue in Vancouver and they were unable to find any such person.
Inquiries were also made among the employees of the publishing company but none
of those in its employ at that time knew anything about the matter and the
respondent had been unable to ascertain by whom the report had been turned in
to the office. According to Mr. Bailey, an average of from 800 to 1,000
despatches or news reports of various kinds are received daily and, of these,
less than half are published. News despatches are received from the Canadian
Press and the British United Press but the article in question had not been
transmitted by either of these organizations. Asked as to the manner in which
other news received by the paper was handled, he said that stories brought in
by their own trained reporters were not checked, except for further background
material and that:—
Similarly where news reports
that come from our country correspondents, unless there should be something in
the nature of the story that would indicate that further enquiries should be
made before it was published. It would not normally be checked; other than for
elaboration. Unsolicited stories, particularly those that would come in by
telephone, we or any other newspaper would normally be wary of and more
careful. Those presented in person would have to be checked, largely on their
merits, by the decision of the editor handling the story.
He said further that it was in
the discretion of the editor handling the matter as to what check there should
be made. Whether the story in question had been received by the newspaper in
writing or by telephone and reduced to writing in the office, does not appear.
Owing to the volume of material that came in to the office of such a newspaper
every day, it is found impossible, according to this witness, to keep it on
file for any protracted length of time. The delay in disputing the accuracy of
the report had thus prevented the respondent from making any effective efforts
to find out the source of its information for the article in question.
The respondent had been unable to
find anyone in its employ in November 1948 who had been in its employ in
February 1948 who knew the appellant or her husband or any of her family. It
is, I think, apparent, however, from the terms of the article that the information
had been given
[Page 243]
to the respondent by some one who
knew something about the family of the appellant (which consisted of a daughter
and two sons as stated) and it being the fact that Guay had left Vancouver the
previous June and had been living in North Bay or in that vicinity. Whether the
informant had heard a false report of such an accident or acted maliciously in
giving the information to the newspaper cannot be determined. The good faith of
the respondent, however, is not questioned.
Wood, J. by whom the action was
tried, considered that the judgment of Lord Atkin in Donoghue v. Stevenson ,
stated the principle which should be applied. The passage in the judgment
relied upon reads:—
The liability for
negligence, whether you style it such or treat it as in other systems as a
species of 'culpa', is no doubt based upon a general public sentiment of moral
wrongdoing for which the offender must pay. But acts or omissions which any
moral code would censure cannot in a practical world be treated so as to give a
right to every person injured by them to demand relief. In this way rules of
law arise which limit the range of complainants and the extent of their remedy.
The rule that you are to love your neighbour becomes in law, you must not injure
your neighbour; and the lawyer's question, Who is my neighbour? receives a
restricted reply. You must take reasonable care to avoid acts or omissions
which you can reasonably foresee would be likely to injure your neighbour. Who,
then, in law is my neighbour? The answer seems to be—persons who are so closely
and directly affected by my act that I ought reasonably to have them in
contemplation as being so affected when I am directing my mind to the acts or
omissions which are called in question.
The learned trial Judge found on
the evidence that the respondent had been negligent in publishing the article.
He then said:—
I take the view that the
defendant owed a duty to the plaintiff and that as a result of its failure to
observe that duty the plaintiff suffered.
The exact nature of the duty is
not stated but I think it to be clear that it was to refrain from publishing a
news item of this nature, without first making reasonable efforts to ascertain
that the facts were as stated.
In the Court of Appeal,
Sidney Smith, J.A., with whom Robertson, J.A. agreed, was of the opinion that
nothing decided in Donoghue v. Stevenson touched the question in the
present matter. I respectfully concur in that opinion. The learned Justice of
Appeal considered that the matter was to be determined upon the principle
[Page 244]
which had been applied in Shapiro
v. La Morta and Balden
v. Shorter .
O'Halloran, J.A. agreed with Wood, J. and in concluding his judgment said in
part:—
Once the Donoghue concept of
the tort of negligence is accepted, then whether appellant owed a duty vis-a-vis
the respondent not to harm her by negligent publication of a false news item of
the kind in this case, is a question of fact.
and said that this fact had been
found in favour of the present appellant by the trial Judge who had neither
misapprehended the evidence or misconceived its weight. He further expressed
the opinion that the general damages allowed had been inadequate and would have
allowed the appeal and increased the amount to $3,000.
In my opinion, there was evidence
from which the learned trial Judge might draw the inference that the defendant
had acted negligently in publishing the article without first making an effort
to ascertain its accuracy. There may have been some explanation regarding this
aspect of the matter which might have been made, had the appellant made her
claim promptly instead of waiting for a period of over nine months. Since,
however, the respondent was unable to give any evidence at all as to the source
of its information and as an enquiry by telephone or otherwise would have
immediately disclosed the fact that there was no such person as Mrs. R. C. Guay
living at 1972 West 6th Avenue and no one of that name known there, the finding
at the trial that this was negligent conduct should not, in my opinion, be
disturbed. The question to be determined in this appeal is as to whether,
assuming that the appellant suffered injury in consequence of the publication,
she has a right of action against the respondent.
It is well at the outset in a
matter of such importance to consider the extent of the liability which, it is
asserted, exists. It is neither suggested in the pleadings or the argument that
the respondent acted maliciously or with any intent to injure the appellant, or
that the statement was published recklessly without caring whether it was true
or false, upon proof of which malice might be inferred. The case is to be
decided upon the footing that the respondent acted honestly and in good faith.
The appellant's contention, put bluntly, amounts to this that newspapers owe a
duty to all those who may read their publications to
[Page 245]
exercise reasonable diligence to
see that any items they publish are true, and are accordingly liable for a
negligent misstatement should damage result from its publication.
The statement complained of was a
misrepresentation. A misrepresentation may be either innocent or fraudulent. If
innocent, it may be a ground for rescission of a transaction or a good defence
to an action for specific performance but, subject to the certain exceptions to
be noted, it gives no right of action sounding in damages (Heilbut v.
Buckleton) . In Taylor
v. Ashton , an
action was brought against directors of a bank for fraudulent
misrepresentations as to its affairs. The jury found the defendants not guilty
of fraud but expressed the opinion that they had been guilty of gross
negligence. Baron Parke, who delivered the judgment of the Court, said as to
this (p. 415):—
It is insisted that even
that (that is, the gross negligence) accompanied with a damage to the plaintiff
in consequence of that gross negligence, would be sufficient to give him a
right of action. From this proposition we entirely dissent; because we are of
opinion that, independently of any contract between the parties, no one can be
made responsible for a representation of this kind, unless it be fraudulently
made.
In Dickson v. Reuter's
Telegram Company , where
the defendant, through the negligence of its servant, had delivered to the
plaintiffs a message not intended for them and they, reasonably supposing that
it came from their agents and was intended for them, acted upon it and thereby
incurred a loss, Bramwell, L.J. said that the general rule of law is clear that
no action is maintainable for a mere statement, although untrue, and although
acted on to the damage of the person to whom it is made, unless that statement
is false to the knowledge of the person making it. Brett, L.J. said (p. 7) that
if the case for the plaintiffs was simply that there was a misrepresentation
upon which they have reasonably acted to their detriment, it must fail, owing
to the general rule that no erroneous statement is actionable unless it be
intentionally false.
The decision in Derry v. Peek
,
must be considered together with Nocton v. Ashburton .
Derry v. Peek was an action for damages for deceit, but certain
statements made in the course of the judgments bear upon the matter
[Page 246]
to be considered here. When that
case was heard in the Court of Appeal (Peek v. Derry ),
Cotton, Hannen and Lopes, L.JJ. had all expressed the view that if a false
statement is made without reasonable ground for believing it to be true an
action for deceit would lie and considered that, though fraud was not proven,
the directors who made the statements were liable on this footing. The judgment
of the Court of Appeal was reversed in the House of Lords. All of the law Lords
disagreed with this view. Lord Herschell pointed out the essential difference
between making a statement careless whether it be true or false and, therefore,
without any real belief in its truth, and making a false statement through want
of care which is nevertheless honestly believed to be true. For the latter
class of statement there was no liability for deceit. Cotton, L.J. had said
that when a man makes an untrue statement with an intention that it shall be
acted upon without any reasonable ground for believing that statement to be
true, he makes default in a duty which was thrown upon him from the position he
has taken upon himself and he violates the right which those to whom he
makes the statement have to have true statements only made to them.
Referring to this, Lord Herschell said (p. 362):—
Now I have first to remark
on these observations that the alleged 'right' must surely be here stated too
widely, if it is intended to refer to a legal right, the violation of which may
give rise to an action for damages. For if there be a right to have true
statements only made, this will render liable to an action those who make
untrue statements, however innocently. This cannot have been meant.
After a review of the authorities
he said further (p. 375):
But that such an action
(i.e. for deceit) could be maintained notwithstanding an honest belief that the
statement made was true, if there were no reasonable grounds for the belief,
was, I think, for the first time decided in the case now under appeal.
The directors of the railway
company who had issued a prospectus containing a statement which they believed
to be true, but which was in fact untrue, were relieved from the liability
imposed upon them by the judgment of the Court of Appeal.
[Page 247]
In Angus v. Clifford ,
decided by the Court of Appeal on an appeal from Romer, J. the effect of the
decision in Derry v. Peek was considered. The head note which accurately
expresses the result of the case reads:—
If a person who makes a
false statement entertains a bona fide belief that the statement is true, an
action of deceit cannot be maintained against him on the ground that he formed
his belief carelessly or on insufficient reasons. If he had formed no belief
whether the statement was true or false, and made it recklessly without caring
whether it was true or false, an action of deceit will lie against him. But not
so if he carelessly made the statement without appreciating the importance and
significance of the words used, unless indifference to their truth is proved.
The action was brought by the
shareholder of a mining company for damages alleged to have been sustained by his
having been induced to take shares in the company by untrue statements
contained in the prospectus. The judgment of Romer, J. does not make quite
clear the ground upon which he proceeded in holding the directors liable and he
did not refer either to Peek v. Derry which had already been decided in
the Court of Appeal or to Derry v. Peek. He found, however, that the
statements were untrue, that they were material, and that the plaintiff had
relied upon them and said that he thought it was clear that no proper care was
taken by the defendants with reference to them. He did not find fraud. The
decision was reversed in the Court of Appeal. Lindley, L.J., referring to the
judgment of the learned trial Judge and after mentioning the fact that he had
not found that the directors were guilty of fraud, said in part (p. 463):—
Then he comes to the
conclusion that that statement, being untrue, was material; and then he rather
appears to have proceeded upon the theory, that that alone would be enough,
without addressing his mind to the further question whether these gentlemen
would be liable, supposing that they did make this untrue statement, but made
it carelessly, as distinguished from fraudulently. His judgment, when we read
it carefully, shews upon the face of it, I think, that his mind was not
addressed to that particular point, which was the point mainly argued before
us. The judgment, so far as I read it, seems to me quite consistent with his
having proceeded upon the view that Peek v. Derry, 37 Ch.D. 541, as decided
in this Court, was law, whereas it was reversed by the House of Lords, as we
all know.
He said further, referring to the
case by its title in the Court of Appeal (pp. 463-4):—
Speaking of Peek v. Derry
broadly, I take it that it has settled once for all the controversy which was
well known to have given rise to very considerable difference of opinion as to
whether an action for negligent
[Page 248]
misrepresentation, as
distinguished from fraudulent misrepresentation, could be maintained. There was
considerable authority to the effect that it could, and there was considerable
authority to the effect that it could not; and as I understand Peek v. Derry
(14 A.C. 337), it settles that question in this way—that an action for a
negligent, as distinguished from a fraudulent, misrepresentation in a company's
prospectus cannot be supported; I think it is perfectly impossible to read the
judgments which were delivered in that case, especially Lord Herschell's to
which I will allude presently, without seeing that that is the broad
proposition of law which Peek v Derry has settled, and settled for good.
After considering in detail what
had been said by Lord Herschell, Lindley, L.J. concluded (p. 466):—
If it is fraud, it is
actionable, if it is not fraud, but merely carelessness—it is not.
Upon the evidence he found that
there was no moral obliquity in what the directors had done, that it was what
he described as "pure blundering, pure carelessness", and that being
the case the action could not be maintained. Bowen, L.J. said that after
reading the evidence he did not feel satisfied that there was any dishonesty at
all, though he thought there was very gross and culpable carelessness in the
use of their language.
In Le Lievre v. Gould ,
mortgagees of the interest of a builder under a building agreement advanced
money to him from time to time on the faith of certificates given by a surveyor
that certain specified stages in the progress of the buildings had been
reached. The surveyor was not appointed by the mortgagees, and there was no
contractual relation between him and them. In consequence of the negligence of
the surveyor, the certificates contained untrue statements as to the progress
of the buildings but there was no fraud on his part. Lord Esher, M.R. who had written
one of the judgments in Heaven v. Pender ,
considered that the later case had no application and that it had been
established by Derry v. Peek that in the absence of contract an action
for negligence cannot be maintained where there is no fraud. This statement
must be taken to be qualified by what was later decided in Nocton v.
Ashburton. Bowen, L.J. said in part (p. 501):—
Negligent misrepresentation
does not amount to deceit, and negligent misrepresentation can give rise to a
cause of action only if a duty lies upon the defendant not to be negligent, and
in that class of cases of which Derry v. Peek was one, the House of Lords considered that
the circumstances raised no such duty.
[Page 249]
After referring to Heaven v.
Pender and cases of that class and to the liability of owners of certain
chattels and of dangerous premises, Bowen, L.J. asked himself if they had any
application to cases such as the one under consideration and said as to this
(p. 502):—
Only, I suppose, on the
suggestion that a man is responsible for what he states in a certificate to any
person to whom he may have reason to suppose that the certificate may be shewn.
But the law of England does not go to that extent: it does not consider
that what a man writes on paper is like a gun or other dangerous instrument,
and, unless he intended to deceive, the law does not, in the absence of
contract, hold him responsible for drawing his certificate carelessly.
A. L. Smith, L.J., who agreed in
dismissing the appeal, was also of the opinion that the principle of Heaven v.
Pender had no application to the case.
Nocton v. Ashburton , was
an action brought against a solicitor claiming damages on the footing that the
defendant had improperly and in bad faith advised Ashburton to realease from a
mortgage held by him a valuable part of the security, knowing that it would
thereby be rendered insufficient, and of having represented untruly that the
remaining security would be sufficient. Derry v. Peek was considered at
length in the judgments delivered.
The trial Judge, Neville, J. had
found that the charge of fraud was not proved and dismissed the action. The
Court of Appeal had reversed the finding and granted relief on the ground that
there had been fraud. It was decided in the House of Lords that upon the
evidence the Court of Appeal was not justified in reversing the finding of fact
of the trial Judge but that the plaintiff was not precluded by the form of his
pleadings from claiming relief on the footing of a breach of a duty arising
from the existence of a fiduciary relationship and was entitled to succeed on
that ground. The summary of the judgment of Viscount Haldane, L.C., contained
in the head note of the report, sufficiently states the effect of the judgments
of the Lord Chancellor and of Lord Dunedin and Lord Shaw of Dumferline, a
majority of the members of the Court. It reads as follows (p.932):—
Per Viscount Haldane L.C.:
Derry v. Peek (1889) 14 App. Cas. 337, which establishes that proof of a
fraudulent intention is necessary to sustain an action of deceit, whether the
claim is dealt with by a Court of Law or by a Court of Equity in the exercise
of its concurrent jurisdiction, does not narrow the scope of the remedy in
actions within the exclusive
[Page 250]
jurisdiction of a Court of
Equity, which, though classed under the head of fraud, do not necessarily
involve the existence of a fraudulent intention, as, for example, an action for
indemnity for loss arising from a misrepresentation made in breach of a special
duty imposed by the Court by reason of the relationship of the parties.
Unless innocent
misrepresentations made in the course of the negotiations leading up to the
formation of a contract or in company prospectuses (before the latter matter
was dealt with by statute) are to be distinguished from innocent misstatements
of fact made in a newspaper or by an individual orally or in writing, this was
the state of the law, as it affects the matter in question here, in 1932 when Donoghue
v. Stevenson was decided. In that well-known case a shop assistant sought
to recover damages from a manufacturer of aerated waters for injuries suffered
as a result of consuming part of the contents of a bottle of ginger beer which
contained the decomposed remains of a snail. The ginger beer had been purchased
in a cafe in Paisley and not from the manufacturer. It was contained in a
sealed glass container which would not in the ordinary course of events be
opened until required for consumption. The exact point to be determined, and
indeed the only point, was as to whether under these circumstances the
manufacturer owed a duty to the ultimate consumer to take reasonable care that
the contents of the bottle were fit for human consumption.
The present action is one of
many, however, which have been undertaken on the footing that much more than
this was decided in the judgment of Lord Atkin in the passage to which
reference was made by the learned trial Judge. In Grant v. Australian
Knitting Mills Ltd. ,
the Judicial Committee considered Donoghue's case and, after saying that
they would follow it and that the only question which they were concerned with
was what the case decided, said (p. 102):—
Their Lordships think that
the principle of the decision is summed up in the words of Lord Atkin:—
A manufacturer of products,
which he sells in such a form as to show that he intends them to reach the
ultimate consumer in the form in which they left him with no reasonable
possibility of intermediate examination, and with the knowledge that the
absence of reasonable care in the preparation or putting up of the products
will result in an injury to the consumer's life or property, owes a duty to the
consumer to take that reasonable care.
[Page 251]
Shapiro v. La Morta ,
referred to in the reasons for judgment of Sidney Smith, J.A. was decided prior
to Donoghue's case. The action was brought by a professional pianist
against the proprietors of a music hall who had erroneously published a report
that she would appear at their hall during a certain week. In consequence, she
lost another engagement and brought an action for injurious falsehood. Lush, J.
held that as the statement was published bona fide the plaintiff could not
recover and this was sustained by the unanimous judgment of the Court of Appeal
consisting of Bankes, Scrutton and Atkin, L.JJ. The latter, it will be noted,
agreed with Scrutton, L.J. that the statement was not actionable in the absence
of malice.
In Balden v. Shorter ,
an action for injurious falsehood, Maugham, J. dismissed the action, holding
that malice had not been shown and that the words were at the worst made
without any indirect motive or any intention of injuring the plaintiff and in
the belief that they were true. While this case was decided after the decision
in Donoghue v. Stevenson, that case was not referred to either in the argument
of counsel nor in the judgment.
In Old Gate Estates v. Toplis
,
a case referred to by the learned trial Judge and, I think, applied by him to a
limited extent, the action was brought against a firm of valuators for negligence
in making their valuation of certain real property. The valuation had been made
at the request of the promoters of the plaintiff company but it was contended
that the defendants knew that it was to be used for the purpose of the company
and, therefore, owed a duty to the company to take proper care in making the
valuation. Wrottesley, J., after referring to the passage from the judgment in Donoghue
v. Stevenson, referred to by the learned trial Judge in the present matter,
held the principle there stated to be inapplicable, it being confined to
negligence which resulted in danger to life, limb or health, while the claim by
Old Gate Estate Limited was for pecuniary loss. With respect, I think the true
ground for distinguishing Donoghue's case was not that stated but rather that
Le Lievre v. Gould, above referred to, was still the law and was decisive
of the issue. I do not think the question as to whether a duty exists is to be
decided by the nature of the injury claimed to have been sustained.
[Page 252]
The only other reported decision
in England to which, I think, reference may usefully be made is Candler v.
Crane , where
in an action brought against a firm of accountants for negligence in preparing
a financial report it was again attempted to apply the language of Lord Atkin
in Donoghue's case to a case of negligent misstatement. Cohen and
Asquith, L.JJ. following Derry v. Peek and Le Lievre v. Gould, were of
the opinion that the action had been properly dismissed by the trial Judge, the
false statements having been made carelessly but not fraudulently, and were not
actionable in the absence of any contractual or fiduciary relationship between
the parties and that this principle had in no way been qualified by the
decision of the majority in Donoghue v. Stevenson. Denning, L.J. dissented.
Sammond on Torts, 10th Ed. 580,
states the result of the decision in Derry v. Peek as being that a false
statement is not actionable as a tort unless it is wilfully false and that mere
negligence in the making of false statements is not actionable either as deceit
or as any other kind of tort. The exceptions to the rule are then stated as
being where there is a contractual duty, a fiduciary relationship as in Nocton
v. Ashburton, and cases of warranty of authority and certain cases where
the rule as to estoppel by representation may operate. It cannot be and is not
suggested that the present case falls within any of these exceptions.
In the October 1951 issue of the
Modern Law Review there is an article by Lord Wright regarding Re Polemis ,
in which, after referring to the difficulty which sometimes arises in
distinguishing cases of remoteness of damage from cases of absence of duty, he
says in part (14 Mod. L.R. 401):—
I may here note without
developing or discussing or criticising the particular rules which by way of
contrast have been applied in the case of negligent misstatements. I think Lord
Atkin must have intended to recognize the distinction when in Donoghue v.
Stevenson, at pp. 581 and 582, Le Lievre v. Gould was cited in his judgment.
Furthermore he could not have intended to lay down a different rule from that
stated in Nocton v. Ashburton as defining the extent of duty in regard to
negligent misstatements. Negligence in words is distinguished there from negligence
in acts. The former, it is there said, involves no breach of duty in the
absence of fraud, contract or fiduciary relationship. Recently in the Court of
Appeal in Candler v. Crane, Christmas & Co., Asquith, L.J., as he then was,
and Cohen L.J. have held (Denning L.J. dissenting) that
[Page 253]
Le Lievre v. Gould is not
qualified by Donoghue's Case and so at the moment the law is fixed. Asquith
L.J. observes that Donoghue's Case has never been applied to injury other than
physical, by which I apprehend he means to include also material injury.
Without being dogmatic this seems to be generally true on the authorities.
Perhaps it is more accurate to say that Donoghue's Case has never so far been
applied to negligence in words. There may well be a substantial practical
reason of a general character for that, as is suggested by Cohen L.J. in a long
quotation from the language of Cardozo C.J. in Ultramares Corporation v. Touche
(1931) 255 N.Y. Rep. 170. I think that in English law the general duty for purposes
of the law of tort should as the law stands be limited so as not to include
mere negligence in words and the first part of the rule in Re Polemis should be
limited accordingly or at least only applied if it is applied with a
difference.
Donoghue v. Stevenson has been referred to in some of the judgments in
this Court in Dozois v. Pure Spring Co. Ltd. :
Marleau v. People's Gas Supply Co. : Attorney-General
v. Jackson :
The King v. Anthony and Booth
v. St. Catharines ,
but in none of these cases was there any question as to its application to
cases such as the present.
We have been referred to the
decision of Wright J. in Wilkinson v. Downton ,
which, it is suggested, touches in some manner on the point to be decided here.
There a defendant who had falsely represented to the plaintiff that her husband
had met with a serious accident, knowing the statement to be untrue and
intending that it should be believed, was held liable. The basis upon which
liability was found was that the defendant had wilfully done an act calculated
to cause physical harm to the plaintiff and had in fact cause such harm to her.
In the present matter it is common ground that the defendant published the
article in good faith, believing it to be true, and without malice. The matters
considered in Janvier v. Sweeney ,
appear to me to be equally remote from the question arising in the present
action.
If the principle which has been
applied in the leading cases to which I have referred, where damage has been
occasioned by acting upon the faith of a misstatement innocently made, is
applicable to a claim where the damage is nervous shock or some other physical
injury resulting from merely reading or hearing the statement, the matter
[Page 254]
is concluded by authority. It is,
however, urged on behalf of the present appellant that since the injury in
respect of which damages are claimed was suffered as a result of reading the
false report, and not as a result of acting upon it, some different principle
applies. If this contention were sound, it would, in my opinion, follow that
if, through an error in the stock market reports carried by nearly all daily
newspapers, the quoted price of a stock was shown at one-half its true market
price on that day, a person whose entire fortune was invested in that stock,
reading the report and sustaining a severe nervous shock in finding that he had
suffered a calamitous loss, could recover damages but if, believing the report,
he immediately sold his shareholdings by private contract for much less than
their true worth before discovering the error in the report, there could be no
recovery. It will not do, in my opinion, to say that a person negligently,
though innocently, publishing a false stock market report would not reasonably
contemplate that nervous shock might be sustained by persons whose fortunes
would be greatly affected if the report were true. It is a matter of common
knowledge that during the depression of 1929 many persons who lost fortunes
were seriously affected in health and that many people destroyed themselves. If
there is any authority for the distinction other than the language employed by
Wrottesley J. in Old Gate Estates v. Toplis, we have not been referred
to it and I am unable to discover any. Logically, I can see no basis for any
such distinction.
In Heaven v. Pender, Brett
M.R. (later Lord Esher), in considering a claim advanced against a dock owner
by a workman in the employ of a ship painter, who had contracted with a ship
owner to paint the outside of a ship, for injuries sustained by the collapse of
a staging outside of the ship supplied by the dock owner under contract with
the ship owner, said in part (p. 509):—
The proposition which these
recognised cases suggest and which is, therefore, to be deduced from them, is
that whenever one person is by circumstances placed in such a position with
regard to another that every one of ordinary sense who did think would at once
recognise that if he did not use ordinary care and skill in his own conduct
with regard to those circumstances he would cause danger of injury to the
person or property of the other, a duty arises to use ordinary care and skill
to avoid such danger.
[Page 255]
If this language was to be taken
literally, it could be applied to the circumstances of the present case and it
may be noted that the distinction sought to be drawn here between claims for
injury to the person and claims for injury to property is not made. It is
perhaps due to the fact that when in Le Lievre v. Gould ,
Lord Esher made it clear that, in his view, this statement of the law had no
application where the claim was for negligent misrepresentation, that one does
not find in the reports either in England or Canada decided cases in which
claims were considered of the nature asserted in the present action until after
the decision in Donoghue v. Stevenson in 1932.
In that case, Lord Atkin,
referring to the above quoted statement from the judgment of Brett, M.R. in
Heaven v. Pender and saying that, as framed, it was demonstrably too wide,
said, following that portion of his judgment which I have quoted above at 580:—
This appears to me to be the
doctrine of Heaven v. Pender as laid down by Lord Esher (then Brett M.R.) when
it is limited by the notion of proximity introduced by Lord Esher himself and
A. L. Smith, L.J. in Le Lievre v. Gould.
After quoting further from what
had been said in Le Lievre v. Gould, Lord Atkin continued (p. 581):—
I think that this
sufficiently states the truth if proximity be not confined to mere physical
proximity, but be used, as I think it was intended, to extend to such close and
direct relations that the act complained of directly affects a person whom the
person alleged to be bound to take care would know would be directly affected
by his careless act.
With this limitation Lord Atkin
appears to have adopted the statement of Brett M.R. in Heaven v. Pender.
This is the view taken by the learned author of Salmond on Torts (10th Ed. p.
434, Note X) and, as pointed out by Asquith L.J. in Candler v. Crane (p.
188), while Lord Atkin pointedly referred to Gould's case in his speech
he neither hinted nor suggested that it was wrongly decided or that his
statement of the law was inconsistent with it.
As Lindley, L.J. said in the
course of his judgment in Angus v. Clifford, the controversy as to
whether an action for negligent misrepresentation, as distinguished from
fraudulent representation, could be maintained, was settled once and for all by
the judgment of the House of Lords in Derry v. Peek. This statement must
be taken to be qualified by the judgment in Nocton v. Ashburton, but the
[Page 256]
present matter does not fall
within any of the exceptions which are, in my opinion, accurately enumerated in
the passage from the 10th edition of Salmond on Torts above referred to. This
was the state of the law when the judgment of Lord Atkin in Donoghue v.
Stevenson was written and, unless he had changed his mind about the matter
after he wrote his judgment in Shapiro v. La Morta, this was also his
view of the law. I do not think that the passage from his judgment in Donoghue
v. Stevenson was intended by him to declare the law as to the liability for
negligent misstatements or to have any application to such liability. It is
inconceivable, in my opinion, that if Lord Atkin and the Law Lords who agree
with him in Donoghue v. Stevenson had intended to declare a principle of
law inconsistent with what had been decided in the House of Lords in Derry
v. Peek and Nocton v. Ashburton and by the Court of Appeal in Le Lievre
v. Gould, they would not have said so in plain terms. That this is the
considered view of Lord Wright is made clear from the article written by him in
the Modern Law Review.
This appeal fails, in my opinion,
and should be dismissed with costs.
Appeal dismissed with
costs.
Solicitors for the
appellant: Freeman, Freeman & Silvers.
Solicitors for the
respondent: Russel & Dumoulin.
Email this Content