Reviewing Old Caselaw: Taking the Taxi to Daycare

The taxi company was using a normal 4 door sedan to transport children, aged 3 to 6 years old to a local school. The taxi company loaded up to 8 kids into the car at a time. The problem was that the locks on the back door of the car were of the push down button type on the top of the door. There was nothing preventing the kids from pulling up the lock knob and no other safety devices were on the door. One day, one of the children, aged 5, opened the left rear door and fell out of the car thereby suffering injury. This happened even though the driver warned the child to not touch the lock and she had made sure, before putting the car in motion, that the lock was actually pushed down. 

The evidence at trial established that there were safety devices that could be installed on the door, for relatively low cost. Other evidence revealed that taxi companies across Canada normally transport children without installing additional safety devices. However, some taxi operators made it a habit to put the youngest children in the front seat and have the older children be in charge of the doors in the rear to prevent just the type of accident that occurred in this case.

It was fairly clear from all of the evidence that there is an acknowledged risk of children playing with door locks in vehicles. The question is, however, whether this risk is inherent and assumed or whether a reasonable person would say that transporting children without additional safety devices to prevent the doors from opening are negligent.

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One of the pleasures that lawyers here at Quinn Thiele Mineault Grodzki LLP have is the opportunity to sometimes review old caselaw. The fact scenario above comes from the case of Ware's Taxi v. Gilliham, Supreme Court of Canada [1949] S.C.R. 637. The case raises the issue of what constitutes the "reasonable person" when deciding whether there is negligence in the behavior of a person or company. In this case the question to be answered is whether it is negligent to transport children in a 4 door sedan with just "regular" locks and no additional safety devices. Interestingly, one of the arguments raised in the case is that prudent parents will often buy a two door sedan to avoid this problem!

What is interesting about old caselaw is that reading the facts is like reading history as the Court's discussion of the facts reflects the culture of the times. Isn't it an interesting to see that in 1949 the concept of a seatbelt was foreign. That piling up to 8 children into a car is fine. That putting the littlest children in the front seat was considered a "safety" conscious decision. Obviously, the notion of every child having a car seat was not to arrive for many more years.

This case reached the Supreme Court of Canada after the claim for damages for the child was dismissed at trial (i.e. the taxi company was not negligent). The Appeal Court reversed the trial Judge and the Supreme Court of Canada eventually dismissed the appeal BUT the Supreme Court was not unanimous in finding that the taxi company was indeed negligent.

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