Chapter 6: Negligence
• Negligence: the most common tort.
• Negligence in business context.
• Flexible balancing of social values:
Compensation for carelessly caused harm
Encouragement of socially useful activities
o Flexibility arises at each stage of analysis.
• For a plaintiff to bring a successful negligence action, the plaintiff must prove that:
o the defendant owed a duty of care to the plaintiff
o the defendant breached the standard of care
o the breach caused the plaintiff’s damage.
• The defendant may prove:
4 elements a plaintiff has to prove:
• owe a duty of care
• Plaintiff suffered a loss.
Duty of Care (pg 130)
• An obligation to use reasonable care to avoid harm to plaintiff.
• You must take reasonable care to avoid acts or omissions which you can reasonably
foresee would be likely to injure your neighbor (Donoghue v. Stevenson).
• Criteria for duty of care:
o Reasonable foreseeability: Was it reasonably foreseeable that the plaintiff
could be injured by the defendant’s carelessness?
o Proximity: Did the parties have a relationship of sufficient proximity?
o Policy: Are there any social policy reasons to deny liability?
(E.g. pg 131)
• Mother has no duty of care to her unborn child.
• Father has duty of care to protect unborn child.
Reasonable Foreseeability (pg 132)
• This is an objective test o Would reasonable person have foreseen risk of loss?
• Not whether the defendant personally foresaw the risk, but whether a reasonable person
in defendant’s position would foresee.
Proximity (pg 133)
• Is there a close and direct connection between the parties?
• Proximity may arise in various ways:
Professional Liability (pg 133)
• Importance increases as information and advice become our economic driver more than
more historic goods production.
• Rules for careless statements as opposed to careless actions may be more complicated.
• Hercules case is very important in establishing guidance for finding a duty of care where
there is economic loss.
Hercules case (Supreme Court of Canada, 1997) pg. 134
• Court stated that duty of care is more likely if:
o Defendant possesses special knowledge, i.e. expertise;
o Statement made in a business (not social) setting;
o Statement made in response to inquiry;
o Defendant received financial benefit in exchange for the statement;
o Statement of fact (or opinion based on fact) rather than purely personal opinion.
• Liability is less likely if:
o Statement accompanied by disclaimer.
• Although the facts of the case satisfied these criteria, the Court was concerned about
indeterminate liability which would cause the price of services to rise unduly.
• The Court found no liability because the plaintiff, as a shareholder used the statement as
investment advice, rather than to assess the management of the company.
• The Court stated that a duty of care for careless statements causing economic loss
would be recognized only if:
o The defendant knew that the plaintiff might rely on the statement,
o And the plaintiff relied on the statement for its intended purpose.
Policy Considerations (pg 135)
• Hercules case is a good example of the court’s use of public policy to limit liability.
• Policy = overriding considerations (legal, social, political concerns). • Effect of policy: even if reasonable foreseeability, even if close proximity, duty of care
rejected for external reasons.
• Many professions are regulated by regulatory bodies, e.g. Law Society.
• Is a case against a regulatory body l