Guay v. Sun Publishing Co.

Guay v. Sun Publishing Co.
Collection
Supreme Court Judgments
Date
1953-06-26
Report
[1953] 2 SCR 216
Judges
Rinfret, Thibaudeau; Kerwin, Patrick; Estey, James Wilfred; Locke, Charles Holland; Cartwright, John Robert
On appeal from
British Columbia
Subjects
Torts
Decision Content
Supreme Court of Canada
Guay v. Sun Publishing Co. [1953] 2 S.C.R. 216
Date: 1953-06-26
Yvonne Guay (Plaintiff) Appellant;
and
Sun Publishing Company Limited (Defendant) Respondent.
1952: October 30, 31, November 3; 1953: June 26.
Present: Rinfret C.J. and Kerwin, Estey, Locke and Cartwright JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Tort—Negligence—Newspaper—Negligent misstatement—False report of death of husband and children—Whether actionable by wife—Absence of malice—Whether duty owed—Nervous shock—Whether damages recoverable.
The respondent published in one issue of its daily newspaper printed in Vancouver, a news item stating that the appellant's husband and their three children had been killed in an automobile accident in Ontario where they were living. No such accident had taken place but the appellant read the item and claimed that the resulting shock affected her health. The respondent could not explain its publication. The appellant claimed damages for negligence and did not allege fraud or malice or the existence of any contractual relationship. The action was maintained by the trial judge but dismissed by a majority in the Court of Appeal for British Columbia.
Held: (Rinfret C.J. and Cartwright J. dissenting), that the appeal and the action should be dismissed.
Per Kerwin J.: Since there was no duty in law owed by the respondent to the appellant, the former could not be held liable in negligence for the shock and impairment in health suffered by the appellant as a result of reading the report. The appellant was not a "neighbour" of the respondent within the meaning of Lord Atkin's statement in Donoghue v. Stevenson ([1932] A.C. 562), since she was not a person so closely and directly affected by the publishing of the report that the respondent ought reasonably to have had the appellant in contemplation as being affected injuriously when it was directing its mind to the act of publishing.
Per Estey J.: Assuming that the respondent owed a duty to the appellant to exercise reasonable care to verify the truth of the report, because injury would be foreseeable to a reasonable person, the appellant cannot succeed since the evidence does not establish that she suffered physical illness or other injury consequent upon shock or emotional disturbance caused by a reading of the report.
Per Locke J.: Since it was conceded on behalf of the appellant that the respondent had acted without malice in publishing the article believing the statements made to be true, there was no cause of action, even though the respondent had acted carelessly in falling, before publication, to make adequate inquiries as to their truth, and damage has resulted. Dickson v. Reuter's Telegram Co. (1877) L.R. 3 C.P. 1; Derry. v. Peek (1889) 14 App. Cas. 366; Nocton v. Ashburton [1914] A.C. 932; Angus v. Clifford [1891] 2 Ch. D. 449; Le Lievre v. Gould [1893] 1 Q.B. 491; Balden v. Shorter [1933] 1 Ch. 427 and Chandler v. Crane [1951] 2 K.B. 164. Nothing decided in Donoghue v. Stevenson [1932] A.C. 562 affected the question to be determined. Per Rinfret C.J. and Cartwright J. (dissenting): There is no analogy between the present case and an action for damages for misrepresentation or for injurious falsehood; the present case is analogous to a case in which the respondent has unintentionally but negligently struck the appellant or caused some object to strike her. The respondent, as a reasonable man, should have foreseen the probability of the appellant reading the report and suffering injury as a result. (Donoghue v. Stevenson [1932] A.C. 562 and Hambrook v. Stokes Bros. [1925] 1 K.B. applied). Therefore a duty rested upon the respondent to check the accuracy of the report before publishing it.
2. The respondent failed in that duty.
3. The appellant can recover damages for nervous shock even though there was no physical impact (Hay or Bourhill v. Young [1943] A.C. 92).
4. The evidence as to damages does not warrant an interference with the assessment made by the trial judge.
APPEAL from the judgment of the Court of Appeal for British Columbia (1), reversing, O'Halloran J.A. dissenting, the decision of the trial judge and dismissing the action for injurious falsehood.
D. L. Silvers for the appellant.
D. McK. Brown for the respondent.
The dissenting judgment of the Chief Justice and of Cartwright J. was delivered by:—
CARTWRIGHT J.:—This is an appeal, brought by special leave granted by the Court of Appeal for British Columbia, from a judgment of that court [1]reversing, by a majority, the judgment of Wood J. in favour of the appellant for $1,025 and costs and directing that the action be dismissed. O'Halloran J.A., dissenting, would have dismissed the appeal and on the cross-appeal would have increased the damages to $3,275.
The material facts may be summarized as follows. The appellant is a married woman. In February 1948 she was living, separate from her husband, in the City of Vancouver. Her husband was living with their three children in Northern Ontario. The respondent publishes a daily newspaper in the City of Vancouver. On the 3rd February 1948, the defendant published the following item in its newspaper:—
Ex-Vancouver Man, Children
Killed in Crash.
A former Vancouver man and his three children were killed in an antomobile-train collision in Northern Ontario over the weekend, according to word received by relatives here.
Mrs. R. C. Guay, 1972 West Sixth, said today she and her husband had been notified that her husband's brother, Dick Guay, his daughter and two sons, are all dead.
The wife of the dead man is believed to be in Vancouver, Mrs. Guay said.
Mr. Guay left Vancouver last June and has been living in North Bay. The accident occurred when he was motoring with the three children from Timmins to North Bay. The news of the tragedy was sent here by another brother who lives in Ontario.
The statement that Mr. Guay and the children had been killed was untrue. They had not been concerned in any accident. It was true, however, that the appellant's husband was known as Dick Guay, that he had a brother whose name was R. C. Guay, that he had another brother living in Ontario and that the children were a daughter and two sons. The evidence does not disclose where R. C. Guay was living at the time of the publication but there is nothing to suggest he was living in Vancouver. It is clear that neither Mr. nor Mrs. R. C. Guay lived at the address mentioned, 1972 West Sixth. There is no evidence as to how or by whom the item was furnished to the respondent. It seems to be a reasonable inference that it was concocted by someone, acquainted with the affairs of the appellant and her husband, who wished to hurt the appellant.
On the day on which the item was published the appellant, in accordance with her usual custom, purchased a copy of the respondent's newspaper, read the item, believed it, and suffered from severe shock which somewhat seriously affected her health. She required treatment by two doctors, extending over some months, was prevented from carrying on her customary work and suffered a partial disability of indefinite duration.
It is conceded that there was neither malice nor fraud on the part of the defendant. The appellant claims damages for negligence. She does not allege the existence of any contractual relationship between herself and the respondent. The learned trial judge was of opinion that under the principles stated in Donoghue v. Stevenson[2], and Hay or Bourhill v. Young[3], the respondent owed a duty to the appellant which it failed to perform, that such failure caused the injuries suffered by her and that she was accordingly entitled to judgment. The majority in the Court of Appeal were of opinion that the respondent would be under no liability unless it had acted wilfully or maliciously and consequently did not find it necessary to decide whether or not it had been negligent.
The following questions were argued before us. (i) Under the circumstances, did the respondent owe a duty to the appellant to be careful? The appellant submits that it did. The respondent submits that it owed no duty to the appellant other than a duty not to publish false news, which might injure her, wilfully, fraudulently or maliciously. (ii) If the respondent was under a duty to the appellant to take care, was there a breach of such duty? (iii) Even if the foregoing questions are answered in favour of the appellant could she recover damages for nervous shock unaccompanied by any physical impact? and (iv) The quantum of damages.
It is first necessary to observe that the cause of action alleged by the appellant is based on negligence regarded as a specific tort in itself. In Grant v. Australian Knitting Mills Ltd. [4], Lord Wright, who delivered the judgment of the Judicial Committee, discusses the judgments in Donoghue's case (supra) and says at page 103:—
It is clear that the decision treats negligence, where there is a duty to take care, as a specific tort in itself, and not simply as an element in some more complex relationship or in some specialized breach of duty, and still less as having any dependence on contract. All that is necessary as a step to establish the tort of actionable negligence is to define the precise relationship from which the duty to take care is to be deduced. It is, however, essential in English law that the duty should be established: the mere fact that a man is injured by another's act gives in itself no cause of action: if the act is deliberate, the party injured will have no claim in law even though the injury is intentional, so long as the other party is merely exercising a legal right: if the act involves lack of due care, again no case of actionable negligence will arise unless the duty to be careful exists. The learned trial judge refers to the often quoted passage in the judgment of Lord Atkin in Donoghue's case (supra) at page 580:—
At present I content myself with pointing out that in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. The liability for negligence, whether you style it such or treat it as in the other systems as a species of 'culpa', is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably forsee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be—persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.
The learned trial judge proceeds:—
As I stated above, the article in the newspaper indicated that the wife and mother whose husband and children were supposed to have been killed lived in Vancouver and she naturally would read or at least hear of the article. Surely, therefore, she was the defendant's neighbour.
In Hay or Bourhill v. Young (supra) at page 111, Lord Wright points out "that the issue of duty or no duty is, indeed, a question for the court, but it depends on the view taken of the facts." The judgments of all the Law Lords who took part in the last mentioned case appear to me to establish that in determining this issue of duty or no duty it is material to consider what the defendant ought to have contemplated as a reasonable man, and that, prima facie at least, a duty to take care arises towards those individuals as to whom a reasonable man in the position of the defendant would have anticipated that they would be injured by the omission to take such care.
For the reasons given by the learned trial judge and by O'Halloran J.A. I am of opinion that a reasonable man in the position of the respondent would have foreseen the probability of the appellant reading the news item and suffering serious injury as a result and that consequently a duty rested upon the respondent to take care to check its authenticity before publishing it; unless, as is argued for the respondent, the authorities negative such a duty where the act complained of is the speaking or writing of words. Counsel for the respondent contends that Donoghue's case has never so far been applied to negligence in words and that it has uniformly been held that fraud or malice is an essential ingredient of a cause of action for damages based on words spoken or written. He does not suggest any analogy between the case at bar and an action for defamation but argues that it is similar to actions for damages for misrepresentation or for injurious falsehood. In my view it is analogous to neither. The gist of the former is the making of false statements to the plaintiff whereby he is induced to act to his own loss; and that of the latter, is the making of false statements to others concerning the plaintiff whereby he suffers loss through the action of those others.
In my view the case at bar is an action on the case for negligently inflicting injury to the person of the appellant and thereby causing injury to her health, and is closely analogous to, if not identical with, a case in which the defendant has unintentionally but negligently struck the appellant or caused some object to strike him. In principle I find it difficult to assert that a defendant who unintentionally but carelessly injures an appellant by a blow or an electric shock should be under liability but a defendant who causes a similar, and perhaps much more serious, injury to an appellant by carelessly inflicting a mental shock by the use of words should escape liability.
I find it unnecessary to attempt to choose between the view of the majority and that of Denning L.J. in Candler v. Crane Christmas and Co.[5], which was, in essence, an action for damages for misrepresentation, as I have already expressed my view that the cause of action in the case at bar differs in kind from that in a case where the appellant's loss is due to his having been induced to act to his loss by representations made by the defendant. For similar reasons I can derive little assistance from the judgment in Shapiro v. La Morta [6], and Balden v. Shorter [7], both of which were actions for injurious falsehood.
Two cases, Wilkinson v. Downton [8], and Janvier v. Sweeney [9], resemble the case at bar in several respects. In the former Wright J., and in the latter the Court of Appeal, held that damages were recoverable for illne resulting from shock caused by words spoken directly by the defendant to the plaintiff; but in both cases the defendant knew when speaking the words that they were a false so that the element of wilfulness, which is lacking in the case at bar, was present. In Janvier v. Sweeney the Court of Appeal approved the decision in Wilkinson v. Downton, and speaking of that decision Bankes L.J., said at pages 321 and 322:—
In my view that judgment was right. It has been approved in subsequent cases. It did not create any new rule of law, though it may be said to have extended existing principles over an area wider than that which they had been recognized as covering, because the Court there accepted the view that the damage there relied on was not in the circumstances too remote in the eye of the law. The substance of that decision may be found in the following passage from the judgment of Wright J. After referring to the doctrine of Pasley v. Freeman and Langridge v. Levy the learned judge said: "I am not sure that this would not be an extension of that doctrine, the real ground of which appears, to be that a person who makes a false statement intended to be acted on must make good the damage naturally resulting from its being acted on. Here there is no injuria of that kind. I think, however, that the verdict may be supported upon another ground. The defendant has, as I assume for the moment, wilfully done an act calculated to cause physical harm to the plaintiff—that is to say, to infringe her legal right to personal safety, and has in fact thereby caused physical harm to her. That proposition without more appears to me to state a good cause of action, there being no justification alleged for the act. This wilful injuria is in law malicious, although no malicious purpose to cause the harm which was caused nor any motive of spite is imputed to the defendant."
In Dulieu v. White and Sons [10], the plaintiff suffered illness as a result of nervous shock caused by the defendant's servant negligently driving a van into the public-house of the plaintiff's husband while the plaintiff was behind the bar. There was no actual impact upon the person of the plaintiff. It was held she was entitled to recover damages. Phillimore J. said at page 682:
I think there may be cases in which A owes a duty to B not to inflict a mental shock on him or her, and that in such a case, if A does inflict such a shock upon B—as by terrifying B—and physical damage thereby ensues, B may have an action for the physical damage, though the medium through which it has been inflicted is the mind.
and at page 683:—
I cordially accept the decision of my brother Wright in Wilkinson v. Downton that every one has a legal right to his personal safety, and that it is a tort to destroy this safety by wilfully false statements and thereby to cause a physical injury to the sufferer. In that case it will be observed that the only physical action of the wrong-doer was that of speech. Dulieu v. White and Sons was approved by the Court of Appeal in Hambrook v. Stokes Bros.[11], in which damages were recovered for injuries caused to the plaintiff's wife by shock caused by the defendants negligently permitting their unattended lorry to rush down a steep hill, the shock being caused by the wife's fear, not for her own safety, but for that of her children. It will be observed that in both of these cases there was no element of wilfulness or malice, but the shock was administered by the instrumentality of a vehicle, not of words.
I share the view of O'Halloran J.A. and the learned trial judge that the American decisions to which counsel referred are not of great assistance as they do not discuss the problem in the light of the principles laid down in Donoghue's case, and for this reason I refrain from a detailed examination of them.
While it is true, as is pointed out by Lord Haldane in Nocton v. Ashburton [12], that "liability for negligence in word has in material respects been developed in our law differently from liability for negligence in act" I can find no reason for refusing to apply the principles stated in the passage from Lord Atkin's speech in Donoghue's case, quoted above, to the case of a false statement communicated directly by a defendant to a plaintiff in such circumstances that a reasonable man in the position of the defendant would have foreseen the probability of the mere communication causing a serious shock with resulting injury to the health of the plaintiff. Wrottesley J. in Old Gate Estates v. Toplis [13], expresses the view that the application of Donoghue's case is confined to negligence which results in danger to life, danger to limb or danger to health. It is not necessary to decide whether this is always so but in my view Donoghue's case should apply to the particular facts of the case at bar where what the respondent should have foreseen was the probability of danger to the health of the appellant. The circumstance that in Dulieu v. White and Sons and in Hambrook v. Stokes Bros. the shock was caused by negligently presenting a vehicle to the view of the person shocked in such circumstances as to terrify her while in the case at bar the shock was caused by negligently presenting the false news item to the appellant does not seem to me to be a satisfactory ground for affirming liability in the one case and denying it in the other. I cannot distinguish in principle between liability for nervous shock caused to a mother by carelessly allowing a truck to run away and so to cause her to think that it will injure her children and liability for nervous shock caused to her by carelessly communicating a false statement to her which will cause her to believe that all her children have met a violent death. Indeed, in my opinion, the probability of injurious shock to the claimant would be more readily foreseen in the latter instance than in the former.
In my opinion Hambrook v. Stokes Bros. rightly decides that the right to recover damages which result from nervous shock negligently caused to the plaintiff is not limited to cases in which the shock arises from a reasonable fear of immediate personal injury to the plaintiff. It is true that that decision has not been finally passed upon by the House of Lords. It was dealt with in all the judgments delivered in Hay or Bourhill v. Young (supra). Lord Thankerton and Lord Macmillan reserved their opinion in regard to it. Lord Russell of Killowen said that he preferred the dissenting judgment of Sargant L.J. to the decision of the majority but that the judgment of the House did not amount to a disapproval of that decision. Lord Wright stated that as at present advised he agreed with it. Lord Porter refers to it as showing the high water mark reached in claims of the character under discussion, and explains the dissent of Sargant L.J. as being based on the view that the injury complained of could not reasonably have been anticipated and therefore the defendant had broken no duty which he owed to the plaintiff. In the result, it appears to me that we are free to follow Hambrook v. Stokes Bros. and I have already indicated my view that we should do so. I think that the existence of liability for shock negligently caused should be determined not by inquiring whether the shock resulted from fear for the personal safety of the claimant but rather by inquiring whether a reasonable person in the position of the defendant would have foreseen that his negligent act would probably result in shock injurious to the health of the claimant. I conclude, as did the learned trial judge, that the respondent did owe a duty to the appellant to take reasonable care not to inflict a mental shock on her by communicating the false item to her and that the first question listed above should accordingly be answered in favour of the appellant.
The second question presents little difficulty. I agree with O'Halloran J.A. and the learned trial judge that the respondent failed in its duty to take care. Inquiries occupying only a few minutes would have shewn that no such person as Mrs. R. C. Guay lived at the address stated in the item. The evidence of the respondent's witness quoted by O'Halloran J.A. seems to me to conclude this question against the respondent.
The third question would present no difficulty if it were not for the decision of the Judicial Committee in Victorian Railway Commissioners v. Coultas [14]. For the reasons given by O'Halloran J.A., in the case at bar, those given by Middleton J.A., speaking for the Court of Appeal for Ontario in Negro v. Pietros Bread [15], and those given by Hogg J., as he then was, in Austin v. Mascarin [16], I think that we are not bound to follow and ought not to follow the decision in the Coultas case. I would respectfully adopt as a correct statement of the law the following passage from the judgment of Lord Macmillan in Hay or Bourhill v. Young (supra) at page 103:—
It is no longer necessary to consider whether the infliction of what is called mental shock may constitute an actionable wrong. The crude view that the law should take cognizance only of physical injury resulting from actual impact has been discarded, and it is now well recognized that an action will lie for injury by shock sustained through the medium of the eye or the ear without direct contact.
It follows from the above reasons that I think that the appeal should be allowed and it remains to consider the fourth question, whether the judgment of the learned trial judge should be restored simpliciter or whether the damages should be increased in accordance with the view of O'Halloran J.A. After an anxious consideration of all the evidence dealing with the question of damages, I have reached the conclusion that we ought not to interfere with the assessment made by the learned trial judge, who had the advantage, always great and in this case peculiarly so, of actually seeing and hearing the witnesses, and particularly the appellant herself.
Before parting with the matter I wish to mention the argument addressed to us that if the judgment of the learned trial judge is restored it will, in effect, amount to a decision that a newspaper must warrant the truth of everything it prints. In my view there is nothing in the judgment of the learned trial judge or in what I have said above which has any such effect. This decision does not touch the case of a reader of a newspaper who suffers financial loss through acting to his detriment on inaccurate information which he reads in the paper. The questions involved in such a case are not before us, as they would have been if, for example, the appellant had been induced by reading the item to fly to Timmins thereby incurring expense. In this regard I think it well to follow the example set by Lord Wright in Grant v. Australian Knitting Mills, Ld. (supra) where, faced with a somewhat similar argument, he said at page 107:—
In their Lordships' opinion it is enough for them to decide this case on its actual facts. No doubt many difficult problems will arise before the precise limits of the principle are defined: many qualifying conditions and many complications of fact may in the future come before the Courts for decision. It is enough now to say that their Lordships hold the present case to come within the principle of Donoghue's case,…
I would allow the appeal and restore the judgment of the learned trial judge. The appellant should have her costs in the Court of Appeal and in this Court, the respondent should have its costs of the cross-appeal in the Court of Appeal.
KERWIN J.:—In one issue of its daily newspaper printed in Vancouver, the respondent published a news item stating that the husband and three children of the appellant had been killed in an accident in Northern Ontario. This report was untrue. The information leading to the publication did not come from one of the recognized press services or from any of the respondent's reporters or correspondents but apparently from someone who must have known of the appellant and the whereabouts of her husband and children. The respondent was unable to say who that was or the manner in which the information was conveyed to it. The respondent was not actuated by malice and there was no contractual relationship between it and the appellant. Upon consideration of the evidence, I am satisfied that the trial judge rightly found that the respondent was negligent in publishing the item and therefore the question is whether it is liable in negligence for the shock and impairment in health suffered by the appellant as a result of her reading the report. There is no authority in this Court that compels us to decide either way but there is a considerable body of opinion leading to an answer in the negative.
Negligence is a separate tort: Donoghue v. Stevenson [17]: Grant v. Australian Knitting Mills Ltd. [18]. Hay or Bourhill v. Young [19]. Several cases bearing upon the point to be determined in this appeal have been decided both before and after this proposition was firmly established, some of which will now be referred to. Derry v. Peek [20], was an action for damages for deceit, and the speeches of all the members of the House of Lords and the reasons for judgment in subsequent cases referring to that decision must be read with that fact in mind. In Shapiro v. La Morta [21], as stated by Lord Justice Banks at 626, the Court of Appeal proceeded upon the basis that:— "It was not disputed that in order to succeed the plaintiff must prove that the publication by the defendants was maliicious." From this I take it that counsel had admitted that malice was necessary, and it is in the light of that circumstance that one must read the statement of Lord Atkin at page 628:— "I think the plaintiff fails in consequence of being unable to prove that the damage was caused by a representation that was malicious."
However, it had been laid down by the Common Pleas in Rawlins v. Bell [22] and by the Exchequer Chamber in Ormrod v. Huth [23], that an injury caused by a statement false in fact but not so to the knowledge of the party making it, or made without intent to deceive, will not support an action. In Playford v. United Kingdom Electric Telegraph Company Limited [24], the Queen's Bench decided that the defendant was not liable in damages for a mistake made by it in transmitting a telegram sent to the plaintiff by a third party, upon which the plaintiff acted to his detriment. This decision apparently proceeded upon the ground that there was no contract between the plaintiff and the defendant but in Dickson v. Reuter's Telegram Company, Limited [25], the Common Pleas Division held that the decision disposed of the case before it where the defendant had negligently delivered to the plaintiffs a message intended for a third person and the plaintiffs had suffered damages as a consequence of acting upon the telegram. Rawlins v. Bell and Ormrod v. Huth were referred to by Denman J., speaking on behalf of the Court. The judgment of the Common Pleas Division was affirmed by the Court of Appeal [26]. Lord Justice Bramwell stated that plaintiffs' counsel had admitted that the case prima facie fell within the general rule "That no action is maintainable for a mere statement although untrue and although acted on to the damage of the person to whom it is made unless that statement is false to the knowledge of the person making it." After posing the question whether any duty arose by law he proceeded:— "If it did arise by law, the consequence would be that the general rule which has been admitted to exist is inaccurate, and that it ought to be laid down in these terms, that no action will lie against a man for misrepresentation of facts whereby damage has been occasioned to another person, unless that misrepresentation is fraudulent or careless. But it is never laid down that the exemption from liability for an innocent misrepresentation is taken away by carelessness." Lord Justice Brett said that the general rule was that no erroneous statement is actionable unless it be intentionally false and that this seemed to be admitted by the plaintiffs' counsel. Lord Justice Cotton pointed out that it was admitted that misrepresentation alone would not have supported an action but that it was contended that owing to the nature of the business carried on by the defendants they were bound to warrant the accuracy of the message, or at least to guarantee that every precaution had been taken by their agents to avoid mistake. In Balden v. Shorter [27], Maugham J. decided that an action would not lay if a person by a false statement made negligently but in the belief that it was true led a third person to act to his damage. In Nocton v. Ashburton [28], the House of Lords decided that Derry v. Peek did not prevent an action succeeding where there was a fiduciary relationship between a mortgagee and a solicitor but, at page 948, Lord Haldane pointed out that "liability for negligence in word has in material respect been developed in our law differently from liability for negligence in act." In truth there appear to be weighty reasons for differentiating between the liability in these two classes of cases. Defamatory statements, oral or written, were in very early times placed in a category by themselves and with the protection afforded by the law to those so affected there was a reluctance to hold liable in damages the publishers of incorrect non-defamatory statements made negligently but not maliciously. It is important to note that the same reluctance existed in the State of New York because the judgment of Cardoza J., speaking for the majority of the Court of Appeals, in the well-known case of MacPherson v. Buick [29], was approved by two of their Lordships in Donoghue v. Stevenson.
The Court of Appeals, speaking through the same judge who by then had become Chief Judge, also decided Glanzer v. Shepherd [30]. There a public weigher employed by a seller of beans by his negligence in weighing, or in reporting the weight, gave to the purchaser a certificate which erroneously overstated the amount delivered. A third party relying upon the certificate sustained damages for which the weigher was held liable upon the ground that the controlling circumstance was not the character of the consequences but its proximity or remoteness in the thought and purpose of the action, and that the copy of the weigh slip was sent to the plaintiff for the very purpose of inducing action. Subsequently, in Jaillet v. Cashman[31], the Court of Appeals, affirming the judgments below, held that a stock-ticker company was not liable where it had given wrong information as to the decision of a Court, as a result of which a speculator reading the tape in a broker's office was misled into dealing in shares the value of which was affected by the decision. No reasons were given but the trial Court had compared the ticker services to a newspaper, stating that practical expediency was more important than logic. Still later, in Ultra Mares v. Houche [32], Chief Judge Cardoza delivered the unanimous judgment of the Court of Appeals and, referring to Jaillet v. Cashman, stated that "if liability had been upheld, the step would have been a short one to the declaration of a like liability on the part of proprietors of newspapers." In the case then before him, public accountants were held not liable for an inaccurate certificate as to a company's finances if made merely negligently and not fraudulently. The Chief Judge pointed out at page 185 that if, as was argued, the principle should be extended so as to cover such a case "the extension, if made, will so expand the field of liability for negligent speech as to make it nearly, if not quite, co-terminus with that of liability for fraud." Such an expansion had already been negatived by Lord Justice Bramwell in the Dickson case.
We may now revert to the decision in Donoghue v. Stevenson, upon which the trial judge and the dissenting judge in the Court of Appeal relied. While there are traces in some quarters of a distinction being drawn between damages for injuries to a person in body or mind or damages to a person's property on the one hand, and economic loss on the other, there would appear to be difficulty in ascertaining a sound basis for such a distinction. On the other hand there may be differences of substance between cases where a person of his own volition proceeds to act upon a negligent but non-fraudulent mis-statement, and where he does not so act but suffers damage as a direct result of the mis-statement. No opinion, therefore, is expressed as to the decision of the Court of Appeal in Candler v. Crane [33]. In any event it is unnecessary to explore these matters further because I am of opinion that in this case the appellant was not a "neighbour" of the respondent within the meaning of Lord Atkin's oft-quoted statement in Donoghue v. Stevenson since she was not a person so closely and directly affected by the publishing of the report that the respondent ought reasonably to have the appellant in contemplation as being affected injuriously when it was directing its mind to the act of publishing. This being so, there was no duty in law owed by the respondent to the appellant.
The appeal should be dismissed with costs. ESTEY, J.:—The respondent published, under date of February 3, 1948, in its newspaper the Vancouver Sun, the following:
EX-VANCOUVER MAN, CHILDREN
KILLED IN CRASH
A former Vancouver man and his three children were killed in an automobile-train collision in Northern Ontario over the weekend, according to word received by relatives here.
Mrs. R. C. Guay, 1972 West Sixth, said today she and her husband had been notified that her husband's brother, Dick Guay, his daughter and two sons, are all dead.
The wife of the dead man is believed to be in Vancouver, Mrs. Guay said.
Mr. Guay left Vancouver last June and has been living in North Bay.
The accident occurred when he was motoring with the three children from Timmins to North Bay. The news of the tragedy was sent here by another brother who lives in Ontario.
This news item was, upon the evidence, probably delivered at the office of the respondent by some person whose identity has not been determined. It was a false statement, published as received, without in any way checking its contents.
The appellant read this item on the evening of its publication and was naturally deeply grieved and affected. She inquired at the address given and found that no Mrs. Guay resided there, nor could she obtain any information with respect to the contents of the news item. She later inquired by telephone of the respondent and received a very indifferent answer. A friend later telephoned with the same result, but no effort was made to inquire of the officers or employees in the more responsible positions. In the result, respondent officers did not learn of the misstatement until the appellant consulted a lawyer in the fall who, under date of November 5, 1948, wrote a letter advising that based upon "negligent editing" a claim for damages would be made. The investigation then made by the respondent could not ascertain precisely just how the statement had been received, more than that it was not from one of the recognized news services.
The appellant alleges that as a consequence of reading this news item she "suffered shock resulting in an acute anxiety state." On her behalf it is submitted that such shock was a foreseeable consequence within the meaning of our law of negligence and, therefore, before publication the respondent owed a duty to her to exercise reasonable care to verify the truth thereof.
Counsel for the appellant did not cite, nor have we found in our law, a decision directly in point. He submits, however, that if not before then since the decision of Donoghue v. Stevenson [34], respondent owed the duty already expressed to the appellant and, because she suffered shock resulting from a breach thereof, she should recover therefor.
Counsel for the respondent submits that throughout the decided cases and recognized texts, both before and since the Donoghue decision, statements are found to the effect that recovery is not permitted for damage resulting from statements negligently made.
In Salmond on the Law of Torts, 10th Ed., 1945, at p. 580, the learned author, in discussing the law of deceit, states:
Mere negligence in the making of false statements is not actionable either as deceit or as any other kind of tort. This is the anomalous rule established by the House of Lords in the leading case of Derry v. Peek, (1889) 14 App.