taking tort law forward

I've frequently written about "tort law" here on the blog. The video "tort law back" is one of the most popular on the site. However, in the news the past couple of days has been a recent tort law decision here on the prairie that seems to be taking tort law a step forward.

Here's the story. There's another version here. Go read them, then come back.

I'm really intrigued and puzzled by this decision, hence blogging about it. I'll give initial comments today but I'm hoping to track the judgment down once it's finalized and learn a bit more before doing a full analysis.

One main source of confusion is which tort did she base her action on. In the CTV story it almost seems that she may have launched a tort in battery. This makes a little more sense, but I would have thought that the fact that she voluntarily took the drugs would nullify any battery tory.

In the StarPhoenix, it indicates she sued in negilgence. For a primer on negilgence, you can go back and watch the snail in a bottle video. Once again I surprised she was successful. Putting aside issues of consent and voluntary assumption of risk, I still don't know whether the elements of negligence are there.

In a nutshell, for negligence, you need to establish a duty of care, then show that the duty of care was breached. You do that by showing there is a standard of care (level of behaviour) and the defendant breached it. Even if you get past the first hurdle of somehow establishing that a drug dealer has a duty of care to their clients, how do you determine the standard of care for a drug dealer?

Is there a professional standard for drug dealers? Are they required to limit the number of drugs they sell to one person, i.e. not enough to OD? Must they be upfront about the contents or effects of the drug? Should they be providing warnings with each sale? There is no reasonable standard of care for a drug dealer in dealing with their client.

Anyways, I should be able to better figure this out once I track down a judgment.

As for the big precedent setting nature of this case, I just don't know. It's only a superior court decision, not appellate and is certainly not binding anywhere else in Canada. Also, the win is a bit of a technicality, as the defence was struck so really there was no trial and no argument from the defence side, which I think would make it less persuasive when being used by other courts. I guess time will only tell.

However, I do find it fascinating, which I guess just makes me a bit of a law geek.