Nelson (City) v Marchi: “Authors of their own misfortune” does not absolve liability

The recently released Supreme Court of Canada decision Nelson (City) v Marchi, 2021 SCC 41 provided much needed clarity to core government policy decisions being shielded from negligence liability. The decision also raised an important point for personal injury litigation, that a finding of personal responsibility of the plaintiff is not dispositive of the defendant’s negligence.

In this case, Taryn Marchi sued the City of Nelson after suffering a serious injury while navigating over a snowbank left by a municipal plow. The trial judge held that the plowing decisions were core government policy decisions protected from liability, finding no duty of care. Alternatively, the trial judge found no breach of the standard of care because the snowbank did not pose an objectively unreasonable risk of harm and that Ms. Marchi was the proximate cause of her injuries.

The British Columbia Court of Appeal disagreed on all three findings, stating Ms. Marchi was not “the author of her own misfortune”, or proximate cause, because she could have avoided the accident. The Court also held that the trial judge incorrectly concluded this was a core government policy decision, protected from liability, which also coloured the finding on the standard of care. The Court ordered a new trial. These findings and the order of a new trial were upheld by the SCC.

On the first point, regarding personal responsibility and plaintiffs being the “authors of their own misfortune”, there have been comments since the decisions asking if there is a trend toward less personal responsibility, of not holding people accountable for their own actions. We take issue with that comment.

The usage of the term “personal responsibility” or “author of [their] own misfortune” when speaking about negligence is a euphemism for “victim blaming”. The government entity, corporation, or person that creates risk should be held responsible, when, in rare circumstances, it causes harm. This is referred to as accountability. It is not a creature of ultra-liberal modern society, but rather basic principles of modern society developed in Roman times. If you cut corners or take risks in the care that all entities owe to society at large (i.e., you, your family, and your community of friends), then you pay the price by being accountable to the person you harmed

To negate or minimize negligent behaviour using the argument of “personal responsibility” is to lead to dangerous products, poor maintenance of facilities, lack of care in your stores to ensure people don’t fall, and reckless diving. For then, care and expenditure of capital to prevent harm shouldn’t matter. The victim should not have consumed the product, should have spotted the hole in the pavement beneath the snow, taken care to see the spilt grapes left on the grocery floor, or seen the angry driver pressing up against the rear of your car.

Kudos to the Supreme Court of Canada, in a 7-0 decision, to recognize the responsibility we all have to protect each other from harm.

These comments above do not speak to the marginalization that underscores the “personal responsibly” narrative. Unemployed, under-employed, indigent, racially marginalized, the deaf, and a long list of others depend on compensation to ameliorate the taking away of what little they have when you cause them harm: e.g., an inability to do their manual heavy lifting job. In a prosperous society, this only serves to demonize those that are already suffering from not being successful economic participants in society due to “their own problems”, rather than recognize the weakness in society in caring for each other and preventing the foreseeable harm caused by not caring enough.

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