Introduction
The law of negligence evolved in recognition of the fact that people live and work in the context of their relationships with other people. The law reflects a societal belief that in this context of relationships people should be required to exercise a certain care that their actions do not harm other people they can reasonably foresee might be affect by their conduct, and they should be accountable in the event a lack of care does harm such other persons.
The tort of negligence can be described as a breach of legal duty to take care which results in damage to a plaintiff. The court must make a decision about whether or not there has been a breach of duty by measuring the actions of the defendant against the court’s concept of how a reasonable person would act in similar circumstances.
The plaintiff must establish all the elements of the tort, including the standard of care. The court requires a standard against which to measure the conduct of a defendant to determine whether the defendant’s action (or lack of action) was negligent. The court must assess whether the conduct of the defendant fell below the standard of conduct required by law.
Necessity of Expert Evidence
In cases involving allegations of professional negligence, the plaintiff must prove that the conduct of the defendant professional fell below the standard required by his or her profession. The standard of conduct in a given circumstance will not usually be obvious to the court. For instance, what a doctor should do when faced with a particular array of symptoms in a patient is not within the knowledge and experience of every person.
There are some cases where expert evidence of a professional’s standard of care is not required. Whether expert evidence is required or not is a question which will be determined on the facts of the case. There are cases where the court may determine the standard of care based on common experience. A court may decide in the context of a professional negligence case that the conduct of the defendant was so egregious and it so clearly fell below the standard required that no expert evidence is required . However, unless a professional’s conduct is that egregious, the court will likely require expert evidence to establish the standard of care.
Standard of Care for Professionals
Expert evidence of the standard of care has been found to be required in cases involving a wide range of professions.
In
Haag v. Marshall, Justice Locke, in a consenting judgment of the Court of Appeal regarding an allegation of negligence against a lawyer, held:
.. the professional evidence led in this case was unsatisfactory in that while it showed what a particular expert witness would have done under certain circumstances (these being very loosely described, if I may say so) nowhere was it said that what was not done fell short of a professional standard of conduct. In cases of professional negligence above all, with the many difficult and varied situations met, if a plaintiff hopes to succeed on the ground of lack of competency it must be fairly demonstrated that it has fallen below an established standard or practice in the profession.
In Meehan v. Dixon , Justice Metzger considered a claim of negligence against a property manager. The issue was whether the property manager had a duty to inspect the Plaintiffs’ rental premises regularly. The rental premises had been damaged by a marijuana grow operation while the defendant was managing it. There was no evidence that industry standards required frequent interior inspections of a rental premises. Justice Metzger reviewed the law respecting expert evidence regarding standard of care and held:
In the instant case, as in Seiler, Haag and Shaak, the standards of conduct of the professional in question are not in the ordinary experience of a judge or lay person. I cannot conclude, as the plaintiffs urge, that negligence should be found within the narrow confines of this case and the expectations of these particular plaintiffs. Without evidence adduced about the standard inspection duties of property managers, it is difficult to conclude whether those duties were breached…
The defendants submitted that, unless the court can find that the conduct of Marion Dixon fell below a standard of care so obvious that no evidence was required to establish what the standard is, the court ought to dismiss. Ms. Dixon’s conduct did not clearly fall below an obvious standard of care and therefore the defendant cannot be liable for the damage to the property resulting from the marijuana grow operation.
Expert Evidence of Standard of Care of Realtors
As described above, in cases of professional liability, expert evidence on the standard of care of the professional will be required unless the conduct of the defendant clearly falls below an obvious standard of care, as plain to a judge or lay person.
In Shaak v. McIntyre, the defendant real estate agent was successful in part because the plaintiff had no expert evidence respecting standard of care. The plaintiff purchased a property in White Rock and after she began to renovate the house, she learned it encroached 6 inches onto her neighbour’s land. The claim against the real estate agent was that she failed to “discover or to disclose the encroachment on the adjacent property”.
The real estate gave evidence that although she knew the house was very close to the neighbour’s house, nothing “twigged” as to the issue of encroachment. Justice Ryan held that the duty of a selling agent is to check information of which he or she is in doubt (or ought to have been in doubt) before passing it on to the purchaser and check the completeness and accuracy of all information which it is usual or customary for agents to verify. There was no evidence of the usual or customary information which selling agents check. Justice Ryan held: “I cannot find Mrs. Bennett fell below that standard, whatever it may be”.
In Summit Staging Ltd. v. 596373 B.C. Ltd., Justice Rice held that to succeed, the plaintiff had to establish what standard of care was owed and that the defendant real estate agent failed to meet that standard. The plaintiffs claim was that their agent had negligently determined the value of the property.
Justice Rice confirmed that while in some case an expert is not required to assist the court in determining the standard of care, in other, it is necessary. In this case, there was practically no evidence adduced as to what was customarily required of the agent and Justice Rice held that the standard of care had not been established and the case was dismissed.
Expert Evidence and No Evidence Motions
A plaintiff’s failure to adduce expert evidence on the standard of care of a professional can be a useful tool at trial. Under Rule 40(8) [Rule 12-5(4) under the new Supreme Court Civil Rules], a defendant may make an application to the court at the close of the plaintiff’s case to have the action dismissed on the ground that there is no evidence to support a necessary element of the plaintiff’s case.
In Seiler v. Mutual Fire Insurance Co., Justice Edwards considered a professional negligence case against an insurance adjuster. After the presentation of the plaintiff’s case, the defendant made a no evidence motion. The court concluded that expert evidence was necessary to establish the appropriate standards of care the defendants had to meet. There was no such evidence and the no evidence motion succeeded.
The case of Edgar v. British Columbia, was also dismissed after a no evidence motion based on a lack of expert evidence. Justice Stromberg-Stein referred to Seiler, supra, for the proposition that where a lay person cannot draw inference as to the standard or case as a matter of common knowledge, the plaintiff is required to lead expert evidence on such issues in order to overcome a no evidence motion.
