LAW 122 Thursday, February 3, 2017
Chapter 6 – Negligence
The tort of negligence determines if the defendant can be held liable for carelessly causing the
plaintiff to suffer a loss or injury.
The purpose is to compensate for harmful, risky actions conducted carelessly, but to allow for
All 3 of the following elements must be met for the defendant to prove negligence:
1. Owed a duty of care, in that they were required to act carefully toward the plaintiff
2. Breached the standard of care by acting carelessly
3. Caused harm to the plaintiff (did the carelessness cause the harm)
Even if the plaintiff proves those elements, the defendant may be able to avoid liability by
providing the following defences that the plaintiff:
Was guilty of contributory negligence that caused or contributed to the injury
Voluntarily assumed the risk of being injured by the defendant
Was injured while engaged in some form of illegal behaviour.
Professional negligence refers to negligence that is committed by a professional person.
The law of negligence contains a tension b/w 2 important values:
On one hand, courts want a wide scope of liability in order to compensate ppl who
suffer injuries. On the other, they recognize that liability sometimes hurts society.
DUTY OF CARE
Courts use it to control the scope of liability under the cause of action in negligence.
It exists if the defendant is required to use reasonable care to avoid injuring the plaintiff.
Test for Determining the Existing of Duty of Care
The Canadian courts have developed a unique test for the creation of duty of care:
The judge will ask if the duty of care question has already been answered for the
particular type of care that’s being litigated.
If it hasn’t been answered, it will be necessary to ask 3 questions to decide whether or
not a duty of care should exist.
1. Was it reasonably foreseeable that the plaintiff could be injured by the
2. Did the parties share a relationship of sufficient proximity?
3. If both are satisfied, then a duty of care will exist. Even if it exists, a court might
not enforce it due to public policy reason
This test is objective as the issue isn’t if the defendant personally knew that its activities might
injure the plaintiff. It’s if a reasonable person would recognize the possibility.
The idea is that there must somehow be a close and direct connection b/w the parties. LAW 122 Thursday, February 3, 2017
The court will focus on physical proximity in simple situations such as careless driver hits a
For more complicated situations, it will look at it from a variety of perspectives, such as:
If the parties shared a social relationship (parent required to look after a child)
If they shared a commercial relationship (pub may be responsible if a drunken
customer causes an accident, but a host of a house party isn’t)
If there was a direct causal connection b/w the defendant’s carelessness and the and
the plaintiff’s injury (motorist who rams into a bridge will be liable for the damages but
not for profits lost by a store on the other side of the bridge)
If the plaintiff relied on the fact that the defendant represented that they would act in
a certain way.
Duty of Care for Professional Statements
In the business context, the best example concerns negligence statements.
Special rules are needed b/c careless statements are different from careless actions.
1. B/c the risks w/ statements are often hidden, the need for care is less apparent.
Consequently, people tend to speak loosely, especially in social settings.
2. If a duty of care exists for a careless statement, there’s a possibility of “liability in an
indeterminate account for an indeterminate time to an indeterminate class.”
3. Careless statement usually results in pure economic losses, financial losses that aren’t
tied to any property damage or personal injuries.
Law is more reluctant to provide compensation for pure economic losses.
Policy is concerned with the effect that a duty of care would have on the legal system and on
A court may ask if the recognition of a duty of care would:
“Open the floodgate” by encouraging a very large # of people to swamp the courts
with lawsuits (stock market loss)
Interfere with political decisions (professional regulatory bodies)
Hurt a valuable type of relationship (mother and unborn child)
Policy consideration may affect the application of the negligence action in a business context
by preventing the recognition of a duty of care in a business context.
It has been held that an employee can’t sue an employer in tort for carelessly causing
mental distress on the job.
Duty of Care and Policy: Regulation of Professions
Cases dealing with the regulation of professions also explains the importance of policy.
Many professions are governed by regulatory bodies. The hard question is if a person is hurt
by a professional’s incompetence/dishonesty, can the regulatory body be sued too.
Plaintiff can argue that if that body did a well job, the professional wouldn’t have been
in a position to commit the tort. LAW 122 Thursday, February 3, 2017
BREACH OF THE STANDARD OF CARE
2 element of the cause of action in negligence requires the plaintiff to prove that the
defendant breached a standard of care, which defines how much a person with a duty of care
It’s breached when the defendant acts carelessly.
Legal Test – Reasonable Person Test: What would a reasonable person in the position of the
defendant have done. The following are the relevant factors:
The test is objective, as it doesn’t make allowances for the defendant’s subjective, or
The reasonable person takes precautions against reasonably foreseeable risks.
They’re influenced by the likelihood of its occurrence (probability) and severity of
They’re more likely to adopt affordable precautions.
Taxi company that carries children should pay $50 for tamper-proof doors, but
doesn’t have to purchase the safest vehicle on the market.
They may act in a way that has great social utility, even though it creates a risk.