Duty, Causation, and Third-Party
Perpetrators: The Bonnie Mooney Case
Margaret Isabel Hall*
When Bonnie Mooneys ex-partner threatened and
chased her, she went to the RCMP for help. After hearing
her complaint against Ronald Kruska and reviewing
Kruskas lengthy record of violent offences, Constable
Andrichuk told Mooney there was little he could do. Rather
than investigating, as required by a provincial domestic
abuse policy, he advised her to stay in public places.
Seven weeks later, Kruska broke into Mooneys isolated
home with a shotgun, wounding Mooneys twelve-year-old
daughter and killing a friend who was staying with
Mooney.
Mooney and her two daughters, suffering from post-
traumatic stress disorder, sued Constable Andrichuk and
the governments of British Columbia and Canada. Both the
trial judge and the British Columbia Court of Appeal found
that the claim must fail, as causation could not be
established.
The author critiques these findings, and argues that it
is coherent, principled, and necessary to find both duty of
care and causation where police inaction allows domestic
violence to continue. Drawing primarily on sources from
Canada and the United Kingdom, she explores the extent of
police liability, and the responsibility to protect particularly
vulnerable individuals. The author argues that it is
inappropriate to find that police never owe a duty of care to
the public: a duty of care should depend on specific factual
circumstances. She also argues that the traditional but for
test for causation is not appropriate where inaction is the
cause of the harm. Just as the material contribution test was
developed
liability where causation was
scientifically uncertain, a new test for causation should be
developed where authorities fail to reduce a risk. The
author concludes that imposing liability is necessary to
deter police from abdicating their responsibility to protect.
to allow
infractions violentes,
Quand lex-conjoint de Bonnie Mooney lui profra
des menaces et se lana sa poursuite, elle sollicita laide
de la GRC. Aprs avoir entendu sa plainte contre Ronald
Kruska et examin le dossier de celui-ci, qui contenait
pourtant de multiples
lagent
Andrichuk dit Mooney quil ny pouvait pas grand-chose.
Plutt que de lancer une enqute, ainsi que le prescrivait la
politique provinciale en matire de violence conjugale, il
lui recommanda de demeurer dans des endroits publics.
Sept semaines plus tard, Kruska faisait irruption dans la
rsidence isole de Mooney avec un fusil de chasse,
blessant la fille de celle-ci, ge de douze ans, et tuant une
amie qui demeurait avec Mooney.
Mooney et ses deux filles, souffrant dune nvrose
post-traumatique, poursuivirent lagent Andrichuk et les
gouvernements de Colombie-Britannique et du Canada.
la fois le juge de premire instance et la Cour dappel de
Colombie-Britannique dterminrent que leur demande
devait tre rejete, puisque le lien de causalit ne pouvait
tre tabli.
Lauteure critique ces conclusions et soutient quil est
cohrent, raisonn et ncessaire de dterminer quil existe
bien un devoir de prudence et un lien de causalit lorsque
linaction de la police permet la violence conjugale de se
poursuivre. Se basant surtout sur des sources du Canada et
du Royaume-Uni,
la
responsabilit policire et lobligation de protger les
individus qui sont particulirement vulnrables. Lauteure
soutient quil est inopportun de conclure que la police nest
jamais tenue un devoir de prudence envers le public : le
devoir de prudence devrait dpendre des circonstances
factuelles spcifiques. Elle soutient aussi que le test
traditionnel du but for pour tudier la causalit est
inopportune lorsque cest linaction qui est lorigine du
prjudice. Tout comme le critre de la contribution
matrielle a t dvelopp afin de maintenir
la
responsabilit lorsque la causalit tait scientifiquement
incertaine, un nouveau critre de causalit devrait tre
dvelopp lorsquil sagit dun cas o les autorits ont
manqu leur obligation de rduire un risque. Lauteure
conclut quil est ncessaire dimposer la responsabilit afin
de dissuader la police de renoncer son devoir de
protection du citoyen.
elle
explore
ltendue de
* LL.B., LL.M., Lecturer, Faculty of Law, University of British Columbia.
Margaret Isabel Hall 2005
To be cited as: (2005) 50 McGill L.J. 597
Mode de rfrence : (2005) 50 R.D. McGill 597
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Introduction
I. The Events
II. British Columbia Supreme Court
III. British Columbia Court of Appeal
A. Duty of Care
B. Causation
IV. Evaluation
A. Duty of Care
1. Proximity
2. Policy
B. Causation
Conclusion
599
599
601
602
602
603
606
606
606
610
611
614
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M.I. HALL THE BONNIE MOONEY CASE
599
Introduction
Do the police have a responsibility to protect women and children from domestic
violence? The answer, according to the British Columbia Court of Appeal in Mooney
v. British Columbia (A.G.),1 is no. While the police should use the means available to
them to respond to violence against women both threatened and realized, it cannot be
said that the failure to do so is itself a cause of harm. The violent man is ultimately
uncontrollable, unpredictable, and solely responsible for the damage he causes; no
causal connection exists between the laws failure to respond to a perceived threat or
the realization of that threat in violence.
This comment concludes that it is coherent, principled, and necessary in this kind
of case to find both a duty of care and causation. Just as the material contribution test
responds to situations where science can identify risk factors but not a single cause of
harm, causation in cases involving third-party perpetrators must take into account the
special factual characteristics of these cases.
I. The Events
Late one night in April 1996, Ronald Kruska smashed his way into the isolated
cabin of his ex-partner, Bonnie Mooney, using a shotgun butt to break down the
cabins door. Bonnie Mooney was inside the cabin with her two young daughters,
Michelle and Kristy, and her friend Hazel White. Believing that Kruska was after her
alone, Mooney fled the house, leaving the girls and White inside. Tragically, this
belief was mistaken; Kruska shot White dead before firing on twelve-year-old
Michelle. Michelle, seriously wounded, managed to help her little sister through a
bathroom window before climbing out herself, and the two girls escaped into the
night. Michelle ran to a neighbours house. Six-year-old Kristy was later found hiding
in a doghouse. Kruska shot himself after setting the cabin on fire.
The relationship between Mooney and Kruska had been marked by several
unreported incidents of violence. Mooney later testified that she feared Kruska and
felt powerless under his control. Mooney did complain to the police following an
assault committed in 1995, during which Kruska choked her and struck her with a
cane. Afraid of going to prison, Kruska implored Mooney to change her story,
promising to give up his half-interest in the property they owned as joint tenants if she
did so. (Mooney had provided the purchase price for the property; Kruska had made
improvements to the cabin on the property.) Mooney agreed, later testifying that she
had been too afraid of Kruskas response to do otherwise.
1 (2004), 31 B.C.L.R. (4th) 61, [2004] 10 W.W.R. 286, 2004 BCCA 402 [Mooney (C.A.) cited to
B.C.L.R.], affg 2001 BCSC 419 [Mooney (S.C.)], leave to appeal to S.C.C. refused, Mooney v.
Canada (A.G.) (3 March 2005), No. 30546.
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After pleading guilty to assault, Kruska was sentenced to twenty-one days in jail
and probation of one year, during which he remained under an order to keep the peace
and be of good behaviour. Kruska had several prior convictions for assault causing
bodily harm, unlawful confinement, manslaughter, two counts of sexual assault, and
forcible confinement. He was known to be a violent individual, and had in fact been
flagged as such in police records.
[Vol. 50
The 1995 conviction marked the end of the relationship between Kruska and
Mooney, but the property issue remained. In March 1996, seven weeks before
Kruskas final, murderous rampage, the two met to discuss what should be done.
Mooney chose a public park, an open and public space, as the location for the
meeting. Kruska soon became agitated. After Mooney managed to leave the park (in
spite of Kruskas attempts to prevent her from doing so), Kruska chased the terrified
woman until she reached the safety of a friends house.
Following a brief discussion with her friend, Mooney proceeded to the RCMP
detachment office to report Kruskas frightening and intimidating behaviour. The
employee taking Mooneys statement later testified that Mooney was visibly very
frightened by the incident, her hands shaking violently. The RCMP constable dealing
with the complaint, Constable Andrichuk, having noted Kruskas flagging for
violence, told Mooney that there was no action he could take. He recommended that
she see a lawyer about obtaining a restraining order and stay in public places in the
future.2 This latter piece of advice was of no use; Mooney was in the privacy of her
own home when, over a month later, Kruskas final, terrible acts of violence occurred.
It is furthermore notable that Mooney had attempted to make her private space more
publicto the extent that this was possibleby inviting her friend, Hazel White, to
stay.
In fact, there was a course of action open to Constable Andrichuk on that day in
April. Despite Andrichuks statement to Mooney that no action was possible in the
absence of an explicit or overt threat by Kruska, section 810 of the Criminal Code3
couldand should4have been invoked in this situation. This section allows the
parties to appear before a judge to determine whether one had reasonable grounds to
fear the other. If so, the judge may order the defendant to enter a recognizance. In fact,
provincial domestic abuse policy dictated that police should apply this kind of
proactive approach, rather than sitting back and waiting for the escalation into
violence or explicit threat. An internal investigation carried out by the RCMP
concluded that Constable Andrichuks failure to carry out further investigation was
improper.5
2 Mooney (S.C.), ibid. at para. 22.
3 R.S.C. 1985, c. C-46, s. 810.
4 [A]nyone aware of the troubled [Mooney-Kruska] background could and should have known that
[Kruskas] conduct … would cause [Mooney] to fear him (Mooney (S.C.), supra note 1 at para. 54).
5 See ibid. at para. 35.
601
M.I. HALL THE BONNIE MOONEY CASE
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But was this failure negligent? Mooney and her daughters claimed it was, in an
action against Constable Andrichuk, the provincial government, and the federal
government. They claimed that Constable Andrichuks inaction materially contributed
to Kruskas later attack, and sought damages to compensate for their post-traumatic
stress disorder, Michelles physical injuries, and Mooneys loss of income. Both the
trial judge and a majority of the Court of Appeal found that even if Constable
Andrichuk owed Mooney a private duty of care and his failure to act was a breach of
that duty, no causal connection between the breach and Kruskas later violent actions
was established.
II. British Columbia Supreme Court
At trial, Justice Collver found that a private duty of care had come into being
because Constable Andrichuk knew of Mooneys fear and concern that Kruska posed
a danger to her. Constable Andrichuk was aware that Kruska had been flagged as a
violent person, and that he was on probation for an assault carried out against Mooney
four months earlier. The RCMP operational manual set out the provincial policy on
domestic violence and made it clear that a proactive arrest-and-charge policy was to
be followed in situations involving violence against women and children. Constable
Andrichuks inaction contradicted that policy. Justice Collver therefore found that a
reasonable RCMP officer in Constable Andrichuks position, aware of current police
policy and of Mooneys reasonable fear of a violent individual who had assaulted her
in the recent past (and who was on probation for doing so), should have investigated
the matter further.
According to Justice Collver, however, that breach was not the cause of Kruskas
violent rampage the following month, nor was it possible to show how Constable
Andrichuks inaction had materially increased the risk to Mooney and the others in
the cabin with her that night. The shootings had been more immediately preceded by
an angry telephone conversation the morning of the attack between Kruska and
Mooney. The call was regarding her plan to build a small cabin on the property, to be
inhabited by her friend, White. Kruska had perpetrated no violence during the period
between Mooneys report to Constable Andrichuk and that conversation. Describing
the police as guardians, not guarantors, of public wellbeing,6 Justice Collver
concluded that the causal link necessary to sustain an action in negligence was not
present in this case.
6 Ibid. at para. 64.
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III. British Columbia Court of Appeal
[Vol. 50
A. Duty of Care
On appeal, the defendant argued that no private duty of care to Mooney could be
shown outside the public duty of care owed by the RCMP to all residents of the
community. The defendant cited the 1988 English case of Hill v. Chief Constable of
West Yorkshire7 to argue that a generally-owed duty of care was enforceable only
through the complaint procedures established by statute and internal discipline
processes. No duty was owed to a private individual. The House of Lords concluded
in Hill that two elements or ingredients were necessary to create the degree of
proximity that would give rise to a private duty of care beyond the generally-owed
public duty: (1) the defendants duty to control the perpetrator; and (2) the plaintiffs
membership in a special class of foreseeable victims.8
Neither element was found present in Hill, which concerned an action in
negligence brought by the mother of a victim of the notorious Yorkshire Ripper
serial killer. At the time of her daughters death, the killer had remained at large (and
so outside of the control of the police) and every woman in England was, in the
words of Lord Keith, his potential victim: All householders are potential victims of
an habitual burglar, and all females those of an habitual rapist.9 Even if the necessary
proximity had been present in Hill, the House of Lords continued, a private duty of
care would be inappropriate for the reasons set out in the policy branch of the test
set out in Anns v. Merton London Borough Council.10 Investigations of major crimes
required difficult decision making, and potential liability would be a distracting and
possibly malign influence on the decision-making process. Police officers, as
professionals, would always strive to carry out investigations to the best of their
abilities and in pursuit of public safety objectives. A private duty of care under these
circumstances was neither just nor reasonable.
Justice Donald, dissenting, noted that the facts of the Mooney case were different
from the facts in Hill in significant ways. Mooney was an identifiable individual at
foreseeable risk, not a member of a vast class of individuals none of whom was
individually discernable as being at a greater risk than the others.11 In the Canadian
case of Doe v. Metropolitan Toronto,12 for example, the plaintiff successfully
7 (1988), [1989] A.C. 53, [1988] 2 All E.R. 238, [1988] 2 W.L.R. 1049 (H.L.) [Hill cited to A.C.].
8 Ibid. at 62. This test is also known as the Dorset Yacht paradigm: Home Office v. Dorset Yacht,
[1970] A.C. 1004, [1970] 2 All E.R. 294, [1970] 2 W.L.R. 1140 (H.L.) [Dorset Yacht cited to A.C.].
See text accompanying note 30.
9 Hill, supra note 7 at 62.
10 (1977), [1978] A.C. 728, [1977] 2 All E.R. 492, [1977] 2 W.L.R. 1024 (H.L.) [Anns cited to A.C.].
11 Mooney (C.A.), supra note 1 at para. 46.
12 Doe v. Metropolitan Toronto (Municipality of) Commissioners of Police (1998), 39 O.R. (3d)
487, 160 D.L.R. (4th) 697 (Gen. Div.) [Doe cited to O.R.].
M.I. HALL THE BONNIE MOONEY CASE
2005]
established a private duty of care owed to her as a member of a distinct and
identifiable class at risk of attack by a serial rapist at large in a particular area of the
city. The rapist preyed on women living in a certain part of Toronto, gaining access
through their balconies. Police failed to warn the women that a serial rapist was active
in their area, which would have enabled them to take precautionary measures. This
failure was found to breach the duty of care owed by police to women in this
situation. The decision not to warn was consciously taken by police in order not to
cause panic or alert the rapist to police knowledge of his pattern.
603
Mooney, an identified individual, was the member of a foreseeable class of one,
and clearly the analysis in Doe was more applicable to her situation than Hill:
[H]aving made herself known to the police as a person in fear of a violent abuser,
Bonnie Mooney established a special relationship of proximity with the police
thereby creating a private duty of care. The duty on the police was to act on the
complaint promptly.13
Justice Hall declined to consider the duty of care issue at any length, noting that
the case could be decided more appropriately14 on the issue of causation. He did,
however, note the policy reasons given in Hill for not recognizing a private duty of
care, and dismissed the applicability of Doe and other Canadian police liability cases
on the grounds that they concerned a duty to warn the potential victims of foreseeable
harm.15 Warning was not a relevant factor in the Mooney case, because Mooney had
herself brought the information to the police.
B. Causation
Justice Donald, also dissenting on the issue of causation, concluded that the
traditional but for test was not practical where inaction was the alleged cause of the
harm. Instead, he applied the material contribution test set out by the Supreme
Court of Canada in Athey v. Leonati:16 where the but for test is practically
unworkable, causation will be established where the negligence of the defendant has
materially contributed to the occurrence of the injury. A contributing factor will be
considered material where it falls outside of the de minimis range. The recent
decision of the House of Lords in Fairchild v. Glenhaven Funeral Services17 had
explained material contribution in terms of risk: causation could be established by
13 Mooney (C.A.), supra note 1 at para. 57.
14 Ibid. at para. 138.
15 Ibid. at paras. 136-38. Smith J.A. also gave written reasons in the case concurring in the result.
16 [1996] 3 S.C.R. 458, 140 D.L.R. (4th) 235. See also Myers v. Peel County Board of Education,
[1981] 2 S.C.R. 21, 123 D.L.R. (3d) 1; Bonnington Castings Ltd. v. Wardlaw, [1956] A.C. 613, [1956]
1 All E.R. 615, [1956] 2 W.L.R. 707 (H.L.); McGhee v. National Coal Board, [1972] 3 All E.R. 1008,
[1973] 1 W.L.R. 1 (H.L.).
17 [2002] 3 All E.R. 305, [2002] 3 W.L.R 89, [2002] UKHL 22 [Fairchild cited to All E.R.]
(involving a victim of mesothelioma whose multiple employers exposed him to asbestos).
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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showing that an employer had materially contributed (more than de minimis) to the
risk that a claimant would develop a particular condition.
[Vol. 50
Applying Fairchilds risk-based analysis of material contribution and causation,
Justice Donald framed the central issue in terms of the relationship between Constable
Andrichuks inaction and the risk of violence to Mooney. The threatening behaviour
reported by Mooney to Constable Andrichuk in March demonstrated that, despite his
recent conviction and incarceration for assault and ongoing probation order, Kruska
remained a high risk for violence. That he was flagged as such by the police reflected
that fact. Under these circumstances, the likelihood of future violence directed against
Mooney was reasonably foreseeable. The inquiry should therefore have focused on
whether the inaction of Constable Andrichuk failed to reduce the risk of future
violence in a material way (more than de minimis), and not whether the inaction itself
inflamed or encouraged Kruska in a way that increased that risk. The provincial
domestic abuse policy, which Constable Andrichuk failed to follow, was adopted
because it is now known that a proactive response to male violence against women
generally reduces the risk of future violence:
[T]he right to police protection in these circumstances is so strong and the need
for teeth in the domestic violence policy so great that the causal linkage must
be found sufficient to ground liability. Contemporary authority … requires
flexibility in the rules of causation so that compensation for a wrong will be
provided where fairness and justice require.18
Justice Donald applied the criteria set out in the British Columbia Court of Appeal
decision in Haag v. Marshall.19 When the circumstances make it impossible to
establish a definitive causal link, principles of fairness justify an inference of
causation where:
a breach of duty has occurred, and damage is shown to have arisen within the
area of risk which brought the duty into being, and where the breach of duty
materially increased the risk that damage of that type would occur, and where it
is impossible, in a practical sense, for either party to … establish either that the
breach of duty caused the loss or that it did not …20
It was impossible to determine what the exact effect on Kruska would have been if
Constable Andrichuk had been more proactive. But it would be unjust if this factual
impossibility resulted in a finding of no liabilityleaving the loss with the plaintiff
where the defendant had breached his duty of care in a way that materially increased
the risk of foreseeable harm to the plaintiff, and where that harm subsequently
materialized as damage to the plaintiff:
Human behaviour is notoriously unpredictable; the behaviour of an erratic,
irrational man like Kruska even more so. All that can be determined from the
18 Mooney (C.A.), supra note 1 at para. 12, Donald J.A.
19 (1989), 61 D.L.R. (4th) 371, 39 B.C.L.R. (2d) 205 (C.A.) [Haag cited to D.L.R.].
20 Ibid. at 379. See Mooney (C.A.), supra note 1 at paras. 72-74, 80.
2005]
M.I. HALL THE BONNIE MOONEY CASE
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evidence is that police intervention is, in many cases, an effective deterrent, and
hence, the Attorney Generals policy [on domestic violence intervention].21
Justices Hall and Smith, giving separate reasons on the causation issue, agreed that in
certain circumstances the ordinary but for test was unworkable and that, in these
cases, a material contribution test would be appropriate. The material contribution
test would be justified, for example, where concurrent acts were involved and where
the causal relationship of each to the harm could not be shown, as where two hunters
fire in a forest and one bullet injures the plaintiff.22 In their view, Mooney was not this
kind of case. Constable Andrichuk and Kruska were not concurrent actors, but were
separated by time, place, the nature of the duty owed, and the nature of the alleged
breach.
Harms involving medical treatment and industrial disease also involve factual
circumstances in which the but for test is practically impossible and, in terms of
fairness, over-exclusionary. Where a plaintiff was exposed to asbestos dust by two
employers, subsequently developing mesothelioma, it would be impossible to say,
applying a but for test, which exposure had caused his disease. It is possible to
say, however, that each period of exposure materially increased the risk that the
disease would develop. On this basis the required causal connection may be
established.23 As per Justices Hall and Smith, Mooney was not this kind of case either.
It was not possible to say that Constable Andrichuks inaction had increased the risk
that Kruska would act out violently. Kruska, whose earlier convictions had resulted in
threatened deportation back to his native Germany, who had been jailed in the past for
violence, and who was threatened with jail again if he violated his parole, appeared to
be impervious to police intervention. It could not be said that intervention on the part
of Constable Andrichuk in March would have prevented Kruskas final, fatal
rampage. Moreover, the evidence indicated that the immediate trigger for Kruskas
rage that night was his conversation with Mooney about her plans to build the guest
cottage. If a cause for Kruskas murderous acts lay anywhere outside of his own mind,
it lay in that conversation:
Here, the harm was the result of a discrete traumatic event, not a course of
exposure to a potentially pathogenic agent in relation to which science is
unable to offer any causal opinion. We know what caused the harm: it was Mr.
Kruskas violent actions. The question is whether Constable Andrichuks
inaction played any legally significant historical causal role in Mr. Kruskas
acting as he did. Proof that it did is not an impossibility in the sense that
scientific knowledge cannot provide a causal connection and an inference of
causation cannot be drawn on circumstantial evidence. … Here, there was
evidence of Mr. Kruskas character and violent history and his previous
21 Ibid. at para. 81.
22 This was the case in Cook v. Lewis, [1951] S.C.R. 830, [1952] 1 D.L.R. 1. See also Summers v.
Tice, 199 P.2d 1, 33 Cal.2d 80 (Sup. Ct. 1948); Arneil v. Patterson, [1931] A.C. 560, [1931] All E.R.
90 (H.L.).
23 See Fairchild, supra note 17.
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responses to sanctions imposed by the police and the courts. There was
evidence of police and ministerial policies respecting the effect of police action
on domestic violence. As well, there were the circumstances of the event itself,
including the temporal relationship between Constable Andrichuks inaction
and Mr. Kruskas criminal actions. This is the stuff of which factual inferences
based on common sense and experience are made.24
IV. Evaluation
A. Duty of care
As F.H. Bohlen has remarked, There is no distinction more deeply rooted in the
common law … than that between misfeasance and non-feasance, between active
misconduct working positive injury to others and passive [inaction] … 25 The line
between active misconduct and passive inaction is not always bright,26 but
generally marks out the boundaries of our duties to others. This rule usually works to
exclude liability for a failure to prevent harms perpetrated by third persons, no matter
how foreseeable.27 A duty of care that will include actions to prevent harms
perpetrated by others may exist, however, in the following circumstances: (1) where
the requisite proximity is created by a high degree of foreseeability in the context of a
special underlying relationship; and (2) where that duty cannot be displaced by the
reasons of policy involved in a particular case.
1. Proximity
If I leave a rake lying across the sidewalk, my action creates a foreseeable risk of
harm and brings into my neighbourhood any person who may subsequently walk
along that sidewalk and trip on my rake. Injury to the person who does, in fact, trip
over the rake has been caused by my act of leaving it there. All the necessary elements
of negligence are traceable to my action of leaving the rake on the sidewalk.
Certain pre-existing relationships arising outside of the chain of events may also
give rise to a duty to act where the kind and quality of the proximity inherent in those
relationships is insufficient to replace the causal proximity 28 created through conduct
in cases of ordinary negligence or misfeasance. Relationships of this kind may originate
in a range of sourcesfiduciary relationships for example, or relationships of obligation
24 Mooney (C.A.), supra note 1 at para. 168, Smith J.A.
25 Francis H. Bohlen, The Moral Duty to Aid Others as a Basis of Tort Liability (1908) 56 U. Pa.
L. Rev. 217 at 219.
26 See Horsley v. MacLaren, [1972] S.C.R. 441, 22 D.L.R. (3d) 545.
27 See Smith v. Littlewoods Organisation Ltd., [1987] A.C. 241, [1987] 1 All E.R. 710, [1987] 2
W.L.R. 480 (H.L.).
28 Sutherland Shire Council v. Heyman (1985), 157 C.L.R. 424 (H.C.A.) [Sutherland]; Canadian
National Railway v. Norsk Pacific Steamship Co., [1992] 1 S.C.R. 1021, 91 D.L.R. (4th) 289.
M.I. HALL THE BONNIE MOONEY CASE
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rooted in statute or the common law, but each is characterized by an internal dynamic
of risk and reliance involving physical control, expectations of protection, and the
control of knowledge.29 That special underlying relationship must be joined by an
enhanced kind and degree of foreseeability. Together, relationship and foreseeability
create the proximity at the core of the duty of care.
607
Formalized relationships of control will give rise to a duty of care owed to the
foreseeable victims of the person under control where that control is exercised
negligently. It is not necessary that those persons suffering harm be individually
foreseeable; it is sufficient that they be members of a bounded foreseeable class. In
Dorset Yacht,30 for example, the House of Lords found that a group of officers in
charge of Borstal boys owed a duty of care to yacht owners whose boats were stolen
and damaged by the boys when they escaped. Two key factors were identified: the
boys were under the control of the officers at the time of their escape, and the
incidents attendant on that escapethe boys taking to the water, using and damaging
the nearby yachts as they did sowere reasonably foreseeable as a consequence of
that escape. Breach of the standard of care was, in this case, the failure of the officers
to control the boys.
Outside of a formal or structural control relationship, involving professional
controllers (as in Dorset Yacht) or socially designated controllers (such as parents),
situational relationships of control may also give rise to a duty of care vis–vis
third-party perpetrators.31
Formal control relationships giving rise to a third-party duty of care act as
mechanisms for controlling latently risky people: Borstal boys,32 prisoners,33 patients
with certain mental symptoms,34 and even children.35 In each case, the professional
controller assumes this responsibility on behalf of society in general. The professional
controller is not a volunteer but a social specialist compensated through public
money. (Parents are a special case, as their children are deemed to be payment in
themselves.) Professional protectorsthe police, child protection officialsnot in a
control relationship with the perpetrator may also owe a private duty of care in
certain, more narrowly defined circumstances. Where the strong element of proximity
supplied by control is missing, a duty of care (in other words, a duty to protect) is
29 See Margaret Isabel Hall, Duty to Protect, Duty to Control and the Duty to Warn (2003) 82
Can. Bar Rev. 645, discussing the conceptual framework set out below in greater detail.
30 Supra note 8.
31 See Hall, supra note 29 at 653 (discussing the intoxication cases, namely Jordan House Ltd. v.
Menow (1973), [1974] S.C.R. 239, 38 D.L.R. (3d) 105; Crocker v. Sundance Northwest Resorts Ltd.,
[1988] 1 S.C.R. 1186, 51 D.L.R. (4th) 321, 44 C.C.L.T. 225; and Stewart v. Pettie, [1995] 1 S.C.R.
131, 121 D.L.R. (4th) 222, 23 C.C.L.T. (2d) 89.
32 See Dorset Yacht, supra note 8.
33 See J.S. v. Clement (1995), 22 O.R. (3d) 495, 122 D.L.R. (4th) 449 (Gen. Div.).
34 See Molnar v. Coates (1991), 5 C.C.L.T. (2d) 236 (B.C.C.A.).
35 See Taylor v. King, [1993] 8 W.W.R. 92, 82 B.C.L.R. (2d) 108 (C.A.).
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supported by an underlying relationship of inherent or structural risk, arising from
enforced reliance and consequent vulnerability,36 together with specific or actual
reliance and an individually identifiable, foreseeable victim. This specific reliance
must be in addition to, yet derive from, the underlying relationship of reliance.37 A
volunteer will never have an obligation to protect me from another person, but a
police officer may: Unlike an individual, a public authority is not an indifferent
onlooker. … Compelling a public authority to act does not represent an intrusion into
private affairs in the same way as when a private individual is compelled to act.38
Kruska was arguably under the control of the police to the extent that he was
under a probation order. On the basis of this control relationship, a private duty of
care may be said to have arisen with respect to his foreseeable victim, Mooney.
Mooney was a member of a class of one, just as the yacht owners comprised a
foreseeable class of victims in Dorset Yacht. Specific reliance, rejected by the
Mooney majority on the basis that Mooney knew that the constable would do nothing
in response to her complaint and so did not rely on his protection, may also be
relevant in these circumstances.39 In a real and important sense, the probation order
granted in lieu of incarcerationis a promise to the victim that the machinery of the
legal system, police and courts, are capable of protecting her from her violent
attacker.40 Indeed, the experienced trial judge at Kruskas trial for assault had
predicted future violence and given Mooney an assurance that the authorities would
respond to any complaint if she was threatened again.41 Mooney, as a reasonable
citizen, had no choice but to rely on that promise.
36 Public reliance on professional protectors creates an inevitable degree of risk. I dont look out for
other peoples children, for example, because I rely on their parents or caregivers to do so or, in an
extreme when I am made aware of caregiver failure, state systems for child protection. See DeShaney
v. Winnebago County Department of Social Services, 489 U.S. 189 (1989): Through its child-welfare
program, in other words, the State of Wisconsin has relieved ordinary citizens and governmental
bodies other than the Department of any sense of obligation to do anything more than report their
suspicions of child abuse to DSS (ibid. at 210, Brennan J., dissenting). As an individual, I am
relatively unguarded and have, to a significant extent, given up to the state my personal ability to
defend myself as well as vulnerable others, such as children, in reliance on professional risk
controllers. See also Sutherland, supra note 28 at para. 29, Mason J.
37 See McGauley v. British Columbia (1990), 44 B.C.L.R. (2d) 217 (S.C.), revd on other grounds
(1991), 56 B.C.L.R. (2d) 1 (C.A.), Huddart J.: In other words one cannot impose liability upon
another simply by choosing to rely upon him. Nor will knowledge that one is being relied on be
enough to create liability. The reliance must derive reasonably from the relationship said to be
proximate if it is to create a duty of care.
38 Stovin v. Wise, [1996] A.C. 923 at 935, [1996] 3 W.L.R. 388, [1996] 3 All E.R. 801, Nicholls L.J.;
see also Haynes v. Harwood (1934), [1935] 1 K.B. 146, [1934] All E.R. Rep. 103 (C.A.).
39 For an example of specific reliance meeting this test, see Brandon v. Richardson (County of), 566
N.W.2d 776, 252 Neb. 839 (Sup. Ct. 1997).
40 Compare Taggart v. Washington, 822 P.2d 243 (Sup. Ct. Wash. 1992).
41 Mooney (C.A.), supra note 1 at para. 25.
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But even if the probation order did not comprise control, or an undertaking to
protect, the known kind and degree of risk to Mooney and the failure to use available
means to control that risk is a source of proximity sufficient to create a private duty of
care. In this respect, Mooneys case very much resembles the circumstances at issue
in Osman v. Ferguson.42 That case concerned a school teacher who had become
obsessed with one of his students, stalking the boy and ultimately killing the boys
father during an attack on both father and son. The police were aware of the teachers
bizarre and threatening behaviour and had interviewed each of the parties several
times, but had not intervened to protect the boy and his family. Describing the police
inaction as a failure in investigation, Lord Justice McCowan (giving the judgment
of a unanimous Court of Appeal) found that, by reason of this failure, [the boy] and
his family were exposed to a risk from [the teacher] over and above that of the public
at large. In my judgment the plaintiffs have therefore an arguable case that … there
existed a very close degree of proximity amounting to a special relationship.43 In
Osman, as in Mooney, there was no control in the sense of the perpetrators being
under arrest, and no promise of protection. Proximity came into being because the
police had knowledge of a clearly foreseeable and high degree of risk to an identified
individual, from an identified individual, and they had the professional means and
mandate to act in a way that would reduce that risk.44
The majority of the Court of Appeal in Mooney did not determine the threshold
question of duty of care, finding the case failed on causation. Clearly, however, a high
degree of proximity existed between Mooney and Andrichuk, giving rise to a
particular duty of care; unlike Hill, this was not a situation in which the perpetrator
was unknown and at large and the victim also unknown, the member of an unbounded
class. Mooney involved an individual, identified victim and an identified perpetrator
who had already been brought within the control of the legal system through his
probation order. Kruskas violent character was well known and, indeed, recorded so
as to alert all officers to his dangerousness. This dangerous nature, together with
Kruskas track record, made the likelihood of future acts of violence directed against
Bonnie Mooney highly foreseeable. The trial judges ruling on the issue of duty was
therefore correct.
42 [1993] 4 All E.R. 344 (C.A.).
43 Ibid. at 350.
44 A pure duty to warn (not incidental to a broader duty to protect through the reduction of risk) may
also arise in a relationship of structural reliance flowing from knowledge imbalance and control. The
manufacturers duty to warn, for example, has been explained by the Supreme Court of Canada in
Bow Valley Husky Ltd. v. Saint John Shipbuilding Ltd., [1997] 3 S.C.R. 1210, 153 D.L.R. (4th) 385.
See also Rivtow Marine Ltd. v. Washington Iron Works, [1974] S.C.R. 1189, 40 D.L.R. (3d) 530. Doe,
supra note 12, is perhaps best understood as a case about police breach of a duty to warn arising from
the professional control of knowledge. Does action, unlike Hills in Hill (supra note 7), was allowed.
According to the Ontario Court, Doe was not a member of the general public but of a more limited
and identifiable class of potential victims, given the relatively predictable patterns of her attacker. See
also Beutler v. Beutler (1983), 26 C.C.L.T. 229 (Ont. H.C.).
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2. Policy
The majority of the Court of Appeal did not have to consider whether police
could ever owe a duty of care to an individual at risk of being attacked, but it seems
they would have been reluctant to find one. Even where the requisite proximity is
established, a duty of care can be negated for policy reasons.45 In Hill, the House of
Lords concluded that policy reasons mitigated against finding a duty of care in this
context, even if proximity could be established. The reasons given by the majority in
the British Columbia Court of Appeal in Mooney suggest that they would have
followed Hill on this point, were the causation issue not determinative.
Negating a police duty of care is problematic, however, given that since Hill was
decided in 1989, the suggestion that it could stand for a policy-based blanket
immunity that would protect all police decision making has been put to rest in the
UK. The decisive turning point was the 2000 decision of the European Court of
Human Rights in Osman v. United Kingdom,46 which arose from Osman v.
Ferguson.47 Although the English Court of Appeal had found that a relationship of
proximity sufficient to give rise to a duty of care had existed between the Osman
family and the police in that case,48 it went on to find that the policy reasons
outlined in Hill negated that duty. 49 Appeal to the House of Lords was refused.
The plaintiff, the dead mans wife, appealed the case to the European Court of
Human Rights. The court found that giving police blanket immunity in negligence
was a disproportionate restriction on the complainants access to justice, as
guaranteed by article 6 of the European Convention on Human Rights.50 Where
sufficient proximity existed between the parties, as in Osman, the question of whether
a subsequent duty of care should be negatived for policy reasons should be
determined in each situation. Policy reasons would not always justify negativing a
private duty of care owed by police.51 The question of whether and why policy
considerations will apply in a particular case to affect an otherwise supportable duty
45 See e.g. Anns, supra note 10; Kamloops (City) v. Nielsen, [1984] 2 S.C.R. 2, 10 D.L.R. (4th) 641.
46 (1998), 95 Eur. Ct. H.R. (Ser. A) 3124, 29 E.H.R.R. 245 [Osman v. UK].
47 Supra note 42.
48 See text accompanying note 43.
49 Osman v. Ferguson, supra note 42. See also Swinney v. Chief Constable of Northumbria (1996),
[1997] Q.B. 464, [1996] 3 All E.R. 449 (C.A.), finding a private duty of care owed by police to an
informant who had been assured of confidentiality.
50 Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950,
213 U.N.T.S 221 at 223, Eur. T.S. 5, art. 6 [ECHR].
51 See also Z. v. United Kingdom (2001), 5 Eur. Ct. H.R. (Ser. A) 1, 34 E.H.R.R. 97; D. v. East
Berkshire Community Health NHS Trust (2003), [2004] Q.B. 558, [2004] 2 W.L.R. 58, [2003] 4 All
E.R. 796, [2003] EWCA Civ 1151, affd [2005] UKHL 23.
M.I. HALL THE BONNIE MOONEY CASE
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of care must be decided in the context of each case, weighing the particular
circumstances and interests to arrive at the appropriate balance.52
611
Canadian courts are obviously not subject to the ECHR. It is nonetheless difficult
to defend the position that the suggested blanket immunity set out in Hill states the
law in Canada when Englands own courts, following Osman v. UK, have soundly
rejected that position as an unfair restriction on access to legal remedy.53 The correct
application of policy considerations was described by Lord Justice May in Costello v.
Chief Constable of Northumbria Police as follows:
For public policy reasons the police are under no general duty of care to
members of the public for their activities in the investigation and suppression
of crime (Hills case). But this is not an absolute blanket immunity and
circumstances may exceptionally arise when the police assume a responsibility,
giving rise to a duty of care to a particular member of the public (Hills case
and Swinneys case). The public policy considerations which prevailed in Hills
case may not always be the only relevant public policy considerations
(Swinneys case).54
What were the relevant policy considerations in Mooney? Andrichuk acted in direct
violation of police policy on domestic violence by refusing to follow up Mooneys
complaint; as Justice Donald noted in his dissenting reasons,55 liability in this case is
justified to give the necessary teeth to that policy. Further investigation was not an
impossible task (as in Hill), nor was the decision within Andrichuks discretion
following a professional balancing of the interests involved (as the police force
argued in Doe). It was the course of action provincial policy directed him to take. A
relationship existed between Andrichuk, Kruska, and Mooney above that which
always exists between police officers and the general public. The probation order was
in effect a promisea promise explicitly made to Mooney in this casethat the
machinery of the legal system (including the police) would use all available means to
protect her from Kruska. Upon receipt of Mooneys complaint, Constable Andrichuk
had knowledge and means at his disposal, and the provincial domestic abuse policy
gave him the explicit imperative to use them.
B. Causation
California courts have used the term abstract negligence to describe a situation
in which a duty of care has been breached and the foreseeable harm giving rise to the
duty subsequently realized, but where causation cannot be established through the
52 See Cowan v. Chief Constable for Avon and Somerset, [2001] EWCA Civ 1699; Mullaney v.
Chief Constable of West Midlands Police, [2001] EWCA Civ 700.
53 Barrett v. Enfield Borough Council, [1999] 3 All E.R. 193, [1999] 3 W.L.R. 79 (H.L.).
54 (1998), [1999] 1 All E.R. 550 at 563, [1998] EWCA Civ 1898.
55 See text accompanying note 18.
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prevailing rule.56 Dismissing a case such as Mooney as abstract negligence is unjust,
placing a manifestly unfair burden on individual citizens who must rely on the legal
system for their protection. A new theory of causation is necessary in the context of
third-party perpetrator harms to take account of the particular and unusual factual
circumstances of these cases, just as the material contribution test has developed in
the context of industrial disease, where the traditional but for test was recognized as
overly narrow. Any new articulation of causation must be incrementally developed
through analogy, ensuring consistency and coherence, as the new categories of duties
of care have developed in the common law post-Donoghue v. Stevenson.57 Reference
to recent developments in the law of vicarious liability may therefore provide
appropriate guidance in the third-party perpetrator context as a fair and flexible
approach to responsibility-based causation.
Factually, vicarious liability for intentional torts and third-party perpetrator
negligence share important characteristics. Indeed, if we conceptualize a spectrum of
tort liability, with strict liability at one extreme and causal proximity negligence at the
other, vicarious liability and third-party perpetrator negligence lie next to each other
between these extremes. Most obviously, each case involves a third-party tortfeasor
whose actions are the immediate cause, in the but for sense, of harm to the
plaintiff/victim. The causal connection in each case may be expressed as a
responsibility to prevent foreseeable harms that is not exercised with reasonable care.
In each case a special, underlying relationship is a necessary ingredient; in each case a
high degree and kind of foreseeability is required (that what did happen, would
happen). The policy rationale for fixing liability in each kind of case is also the same.
The responsible party is uniquely placed to take actions that will deter in each case
and, through an economic or enterprise causation analysis, it is appropriate that the
person or body benefiting from a professional relationship of power and dependence
should be fixed with responsibility for carrying out that relationship to a reasonable
standard of care.
The principles to be applied in the determination of vicarious liability for
intentional torts were set out by the Supreme Court of Canada in Bazley v. Curry.58
That case concerned the vicarious liability of a childrens home regarding sexual
assaults committed by a housemaster. The Court referred to the Salmond test to
determine if the employer is liable for an employees wrongful acts:59
A master is not responsible for a wrongful act done by his servant unless it is
done in the course of his employment. It is deemed to be so done if it is either
56 Noble v. Los Angeles Dodgers, 214 Cal.Rptr. 395 (C.A. 1985); Nola M. v. University of Southern
California, 20 Cal.Rptr.2d 97 (C.A. 1993).
57 [1932] A.C. 562, [1932] All E.R. 1 (H.L.). On developing categories of duties of care, see
Caparo v. Dickman, [1990] 2 A.C. 605, [1990] 1 All E.R. 568, [1990] 2 W.L.R. 358 (H.L.).
58 [1999] 2 S.C.R. 534, 174 D.L.R. (4th) 45 [Bazley cited to S.C.R.].
59 Ibid. at 543.
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M.I. HALL THE BONNIE MOONEY CASE
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(1) a wrongful act authorised by the master, or (2) a wrongful and unauthorised
mode of doing some act authorised by the master.60
Justice McLachlin explained the second step with reference to two further inquiries.
First, one ought to ask whether precedents of significant unambiguous factual
similarity existed. If there are such precedents, they should be followed. If not, one
ought to ask what outcome would best accord with the underlying purposes of the
doctrine: compensation, deterrence, and fairness. The question of whether liability
should lie must be frankly addressed. The limits that fairness requiresthe proximity
connectionwould be established by showing a significant relationship between the
creation or material enhancement of risk and the wrong that actually occurs.
A similar flexibility is also required in the rules of causation, so that
compensation for a wrong will be provided where fairness and justice require.61
Flexibility in this case means applying the rule with reference to the special
characteristics of cases involving third-party perpetrators. In particular, courts ought
to consider the nature and significance of reliance where a professional defendant
possesses the ability and authority to control dangerous individuals under
circumstances of clear and foreseeable risk. The general principle that particular
reliance only (the promise of protection not followed through) may be a cause of harm
must be excepted where a police officer simply declines to exercise professional
responsibilities under the following circumstances:
1. Where the risk of harm is serious, and foreseeable;
2. Where the potential victim is an identified individual;
3. Where the officer is in a legal relationship of control with the perpetrator (as
where the perpetrator is under a probation order); and
4. Where the police, uniquely and as part of their professional role, possess
significant legal powers granted for the purpose of reducing those risks, and
a duty of care that requires their use.
In accordance with the Bazley criteria (precedent and analogy), it is important to
note the 2003 decision of the Supreme Court of Canada in K.L.B. v. British
Columbia,62 implying a policy-based approach to causation analogous to the
principle-based inquiry outlined in Bazley. K.L.B. involved a provincial authoritys
failure to adequately oversee a foster placement. Chief Justice McLachlin advised a
robust and pragmatic approach to causation in cases where a scientific
determination was not possible:
[I]t is worth noting that the private nature of the abuse may heighten the
difficulty of proving the abuse and its connection to the governments conduct
in placement and supervision. As in other areas of negligence law, judges
60 R.F.V. Heuston & R.A. Buckley, Salmond and Heuston on the Law of Torts, 21st ed. (London:
Sweet & Maxwell, 1996) at 443.
61 Mooney (C.A.), supra note 1 at para. 12, Donald J.A.
62 [2003] 2 S.C.R. 403, 230 D.L.R. (4th) 513, 2003 SCC 51 [K.L.B. cited to S.C.R.].
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should assess causation using … a robust and pragmatic approach. … A
common sense approach sensitive to the realities of the situation suffices.63
The purpose underlying the authoritys responsibility to oversee foster placements
was to minimize the opportunities for undetected abuse, that abuse being a risk
inherent to the system of placing children in foster homes. The failure to exercise that
authority to a reasonable standard of care was, therefore, a failure to reduce those
foreseeable risks.
A more flexible approach to causation based on policy and underlying tort
principles was also articulated by the House of Lords in the October 2004 case of
Chester v. Afshar. 64 Concluding that the normal approach to causation would render
the duty useless in the cases where it may be needed most, Lord Hope (a majority
concurring) turned to a consideration of fundamental principles:
The function of the law is to enable rights to be vindicated and to provide
remedies when duties have been breached. Unless this is done the duty is a
hollow one, stripped of all practical force and devoid of all content. It will have
lost its ability to protect the patient and thus to fulfil the only purpose which
brought it into existence. On policy grounds therefore I would hold that the test
of causation is satisfied in this case.65
Conclusion
The fact that Constable Andrichuk chose not to follow explicit policy direction
that day tells us that policy is not, in itself, enough, despite the public illusion of
protection it provides. The most important question in Mooney is never asked: why
did Constable Andrichuk choose not to follow up on Bonnie Mooneys complaint?
Perhaps, adhering to a belief traditionally associated with police culture66 (which the
policy was designed to counteract), he thought the matter was a private issue between
Mooney and Kruska, and that further investigation was neither warranted nor
appropriate. Perhaps, having noted Kruskas flagging as a violent individual,
Constable Andrichuk was afraid of confronting him over what was, after all, a private
63 Ibid. at para. 13 [references omitted].
64 [2004] 4 All E.R. 587, [2004] UKHL 41. That case applied Fairchilds (supra note 17) risk
analysis in the context of a doctors failure to warn his patient of a potential, harmful outcome of
medical treatment, which eventually materialized.
65 Ibid. at para. 87.
66 See G. Kristian Miccio, Notes from the Underground: Battered Women, the State, and
Conceptions of Accountability (2000) 23 Harv. Womens L.J. 133 at 140-41, 158-59; Lee Lakeman,
Canadas Promises to Keep: The Charter and Violence against Women (Vancouver: Canadian
Association of Sexual Assault Centres, 2003) at 125-28.
M.I. HALL THE BONNIE MOONEY CASE
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matter between the former partners.67 Whatever his personal reasons, the important
point for the rest of us is that policy direction was insufficient to outweigh them.
615
Policy guides; liability deters. The prevention of violence against women and
children requires deterrence. Police officers are asked to do difficult, dangerous
things, perhaps carrying out decisions of others which they personally consider ill-
advised. Inaction in these situations will often be easier than action, and where an
easy explanation exists to justify inaction, no one should be surprised when inaction
prevails even in the face of guidance to the contrary. Traditional professional-cultural
beliefs about domestic violence (that victims invite and then choose to remain within
violent relationships, involving police as players in the ongoing domestic drama
rather than real protectors and enforcers of the law) work by legitimizing inaction,
especially in difficult and dangerous situations. In cases of violence against women,
police inaction has proved deadly.68 A necessary function of the law here is to
counteract the deeply rooted power of cultural framing devices69 through liability, the
ultimate social determination of wrongness.
Police forces have become so integral to modern society that it may be difficult to
remember that the police are not inevitable, but the consequence of an historic social
bargain through which protection from third parties is provided in return for money
and the conferral of authorityauthority that itself carries a significant risk of
misuse.70 The police are not, of course, guarantors of public safety. Members of police
forces are publicly paid professionals, however, whose mandate explicitly includes
the minimization of risk posed by third-party perpetrators. This mandate is, in
essence, what police are for: as a society, we have given up the personal right to
private deterrence (Bonnie Mooney would have placed herself outside the law, for
example, had she used private force to respond to the serious threat posed by Kruska),
in reliance on the public deterrence provided by the police.
Having assumed a monopoly on the deterrence of violent and threatening
individuals, the police create an unacceptably heightened condition of vulnerability
for threatened individuals when the available tools of deterrence are not exercised
with reasonable care. It is right to understand that creation of vulnerability as causal in
the sense that exposure to industrial toxins has been described as causal in situations
where the precise contribution of potentially disease-causing factors is unknowable.
In the context of the underlying social bargain, police failure to reduce risk by acting
non-negligently is directly analogous to the creation of risk described by the Supreme
67 The dangerousness of domestic violence for police intervenors is an important, if seldom
discussed, factor affecting police response: see e.g. Randall D. Armentrout, Car 54 Where Are You?
Police Response to Domestic Violence Calls, Note (1991) 40 Drake L. Rev. 361 at 365.
68 See Miccio, supra note 66, and Lakeman, supra note 66.
69 For a discussion of how framing through professional culture operates to legitimize inaction in
cases of child abuse and neglect, see Robert Dingwall, John Eekelaar, & Topsy Murray, The Protection
of Children: State Intervention and Family Life, 2d ed. (Aldershot: Avebury, 1995) at 38-41.
70 See Mary M. v. Los Angeles (City of), 814 P.2d 1341, 54 Cal.3d 202 (Sup. Ct. 1991).
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Court in Bazley71 as justifying vicarious liability and by the House of Lords in
Fairchild72 as capable of comprising causation. Declining leave to appeal in the
Mooney case, the Supreme Court of Canada passed over the opportunity to consider
the issue of causation in the context of third-party perpetrators and professional
protectors; but almost certainlytragicallythat opportunity will come again.
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71 Supra note 58.
72 Supra note 17.
