Note The policy arguments, as between the compensation principle and the fault – principle, work against each other in this case. Joyal v Barsby (1965)(Man CA) Facts The six-year-old P (who had been instructed in the dangers of crossing the – highway) ran out onto a busy highway after a truck driver sounded a foghorn. She was with her two younger brothers (one of which had already ran across). The D motorist saw the children but concluded they realized traffic was on the highway, and would stay where they were. He did not see the boy who ran across. He decreased his speed, but P started to run across the highway and collided with the rear door of the vehicle, sustaining severe injuries. Who won? Infant plaintiff Issue Can a six-year-old infant be guilty of contributory negligence? – Holding The infant plaintiff was not negligent. – Ratio A child of six years is capable of being guilty of contributory negligence. – In cases involving the alleged negligence of young children, the standard of care is not reduced to zero (as with adults who are incapable of understanding or acting in accordance with the standard of care), but adjusted to a standard appropriate to the individual child, given his/her age, intelligence and understanding (and background in terms of where they’ve lived and so on). Reasoning The ordinary child of P’s age, intelligence and experience would have – responded to the situation in the same way. White v Turner (1981)(Ont HC) affd (1982)(Ont CA) Facts D plastic surgeon performed a breast reduction operation on P. P suffered – post-operative complications and sued D, claiming that he was negligent in performing the operation and not properly disclosing the risks of surgery. Who won? Plaintiff (White) Issue Was D negligent? – Holding The poor result obtained in the mammoplasty performed on P was the – result of D’s negligent execution of the surgery. Ratio Professionals’ standard of care is higher than that of the reasonable, but – unskilled, person; the standard of care appropriate to that profession must be observed.
Note – The policy arguments, as between the compensation principle and the fault principle, work against each other in this case. Joyal v Barsby (1965)(Man CA) Facts – The six-year-old P (who had been instructed in the dangers of crossing the highway) ran out onto a busy highway after a truck driver sounded a foghorn. She was with her two younger brothers (one of which had already ran across). The D motorist saw the children but concluded they realized traffic was on the highway, and would stay where they were. He did not see the boy who ran across. He decreased his speed, but P started to run across the highway and collided with the rear door of the vehicle, sustaining severe injuries. Who won? Infant plaintiff Issue – Can a six-year-old infant be guilty of contributory negligence? Holding – The infant plaintiff was not negligent. Ratio – A child of six years is capable of being guilty of contributory negligence. In cases involving the alleged negligence of young children, the standard of care is not reduced to zero (as with adults who are incapable of understanding or acting in accordance with the standard of care), but adjusted to a standard appropriate to the individual child, given his/her age, intelligence and understanding (and background in terms of where they’ve lived and so on). Reasoning – The ordinary child of P’s age, intelligence and experience would have responded to the situation in the same way. White v Turner (1981)(Ont HC) affd (1982)(Ont CA) Facts – D plastic surgeon performed a breast reduction operation on P. P suffered post-operative complications and sued D, claiming that he was negligent in performing the operation and not properly disclosing the risks of surgery. Who won? Plaintiff (White) Issue – Was D negligent? Holding – The poor result obtained in the mammoplasty performed on P was the result of D’s negligent execution of the surgery. Ratio – Professionals’ standard of care is higher than that of the reasonable, but unskilled, person; the standard of care appropriate to that profession must be observed.