Negligence: the carless causing of harm
● law of accidents
● the tort of negligence balances the interests of plaintiffs and defendant
● tries to compensate plaintiff for harm caused by actions conducted carelessly while
allowing the defendants to take some risks.
Test for negligence:
1. Duty of care: is there a duty of care to the plaintiff? or why should the defendant care
about the plaintiff
2. Standard of Care: what is the standard of care and did the defendant breach it.
Duty of Care
● analyzes the relationship between the plaintiff and the defendant
● Two Part Test, Have previous cases decided that there is a duty of care between
someone like the defendant and someone like the plaintiff?
● ex. Manufacturer owes a duty of care to a consumer of its product. Manufacturer vs
● Car accidents- between drivers and other users on the road
If there are no precedents, the court will apply a 3-part test:
● was the harm to the plaintiff reasonably foreseeable by the defendant?
● is there a relationship of proximity between the plaintiff and defendant?
● would a reasonable person have anticipated that the plaintiff would be harmed by the
● ex. Slip and fall on icy sidewalk in front of the store- it’s reasonably foreseeable that if
you don’t clear the ice, someone will fall.
● Not subjective- the opinion of either the plaintiff or defendant does not matter
● allows for assessment of risk and insurance coverage.
Duty of Care 2:
● Proximity means close and direct connection between the plaintiff and defendant
● ex. Social Relationship ( Parent and Child)
● Commercial Relationship- Bar and Drunk Driver
● Manufacturer and Consumer
Duty of Care- Public Policy
● What effect would a duty of care have on society and the legal system?
● Does our society wish to encourage or discourage a person like the defendant to owe a
duty to a person like the plaintiff’s?
● Courts may consider:
● would the decision open the floodgates for litigation?
● would it interfere with political decisions?
● will it hurt a valuable type of relationship?
Element #2- Standard of Care
● What is the standard of care?- how should the defendant have acted in this situation?
● Reasonable person test- how would a reasonable person act in this situation?
● are there legal, moral or social requirements to act in a certain way? ● ex. when driving, there is a legal requirement to stop at a red light not to speed etc.
● It is an objective test
● subjective conduct of defendant does not matter
● the standard of care is not perfect only that of an average person in the same
● no hindsight
Standard of care for professionals
● special standard of care for persons in professional roles, doctors, lawyers
● standard is higher than of a lay person
● the professional must act as a reasonable professional in similar circumstances
● no allowance for inexperience
● no allowance for exaggerated credentials
● standard may be higher still for a specialist or expert, must act as a reasonable expert
Standard of care for products: product liability
● harm caused by manufactured products
● in canada- manufacturer liable only for careless defects.
● Examples; defect in the manufacturing of the product ex. snail in beer
● defect in the design of the product
● failure to warn of known risks, medication side effects.
Element 3: Causation
● did the defendant’s conduct caused the harm?
● if the harm to the plaintiff was caused by something or someone other than th