Chapter 6 NEGLIGENCE Law 122
Tort of Negligence: determines whether the defendant can be held liable for carelessly
causing injury to the plaintiff
Ex. A manufacture may produce a beverage that makes a consumer sick
Tort of Negligence requires the plaintiff to prove that the defendant:
owed a duty of care (relational issue between defendant and plaintiff), in that it
was required to act carefully toward the plaintiff
Breached the standard of care (what the defendant did or failed to do) by acting
Caused harm (established a link, defendant could have changed the outcome)
to the plaintiff
Need to prove all 3 if you are a plaintiff for negligence
Defendant may be able to avoid liability if they show at least one of the three
Plaintiffs harm caused by its own contributory negligence
The plaintiff voluntarily assumed the risk of being injured by the defendant
The plaintiff was injured while engaged in some form of illegal behaviour.
Professional negligence: refers to negligence that is committed by a professional person
such as a banker or lawyer, or an accountant.
Have to act as a reasonable person
2. Law of negligence contains a tension between two important values. On the one hand,
the courts want a wide scope of liability in order to compensate people who suffer
injuries. In the other hand, the courts recognize that the imposition of liability sometimes
actually hurts society
-quite difficult to sue a physician, largely because judges do not want to discourage
doctors from practicing in risky areas, such as obstetrics.
DUTY OF CARE
Use to control the scope of liability under the cause of action of negligence.
Duty of care: occurs when the defendant is required to use reasonable care to avoid
injuring the plaintiff.----- without duty of care there cannot be a liability , even if the
defendant carelessly injured the plaintiff.
1 TEST OF DETERMING DUTY OF CARE
Duty of care was restricted to certain types of relationships such as innkeeper and
traveler, lawyer and client, Railway Company and passenger and surgeon and patient.
Recently replaced those categories with a single test
Donoghue v Stevenson (pg 131 )
The judge will first ask whether or not the duty of care question has already been
answered for the particular type of case that she is hearing
If the duty of care question has not already been answered for the particular type
of case that the judge is hearing, then three questions will be asked to see if duty
of care should exist
o 1. was reasonably foreseeable that the plaintiff could be injured by the
o 2. Did the parties share a relationship of sufficient proximity?
o 3. If an injury was reasonably foreseeable and if the parties shared a
relationship of sufficient proximity, then a duty of care will presumably
exits. The judge might still deny a duty of care, however, on the basis of
1. Reasonable Foresee ability
Test is objective
Important that reasonable person in the defendants position would have
recognized that possibility.
Test is intended to strike a balance between parties
Plaintiff should not have to suffer because defendant was not paying attention
It would be unfair to hold the defendant liable for every injury that it creates.
Duty of care will not be recognized unless there was also a relationship of
There should be a close and direct connection between the parties
o Whether parties shared a social relationship (parent look after child,
stranger is not)
o Shared a commercial relationship ( tavern may be responsible for
drunken driver, while house party host may not be responsible for drunken
o If there was a direct causal connection (motorist who rams in bridge will
be liable for damages but not for profits that were lost to a store due to the
2 o Whether plaintiff relied on the fact that the defendant represented that it
would act in a certain way ( railway company and safety gate )
Concept is very broad and open ended, court look all circumstances before recognizing a
new duty of care
DUTY of Care for Professional Statements
Some information from professionals is inaccurate, and customers will suffer a loss due
-law of negligence should strike a balance between the need to compensate people who
are hurt by the negligent statements and the need to protect business from the potentially
disastrous consequences of being held liable.
-careless statements are different from careless actions
Words are more volatile than deeds
Careless actions usually result in property damage or personal injury
Canadian courts apply special rules when deciding whether to recognize a duty of
care if the defendants careless statement caused the plaintiff to suffer a pure
Case 6.2 (pg 134-135)
1. you should be very careful about providing information and advice
2. you do not wish to be held liable for your statement, you should clearly disclaim
3. You should be careful about relying on statements made by others.
Duty of care will not necessarily exist even if there was a reasonable
foreseeability and proximity
Proximity deals with the relationships that exist between parties, whereas
policy is concerned with the effect that a duty of care would have on the legal
system and on society generally.
Ex, a court may ask whether a recognition of duty of care would:
o Open the floodgates
o Interfere with political decisions
o Hurt a valuable type of relationship
Duty of care and policy: Regulation of Professions
Many professions are governed by regulatory bodies
Professionals can be liable responsible if it hurts a person
3 BREACH OF THE STANDARD OF CARE
First element of the cause of action of negligence requires the plaintiff to prove
that the defendant owed a duty of care
Second element requires the plaintiff to prove that the defendant breached the
standard of care
Standard of care: tells the defendant how it should act
Breached- when he defendant acts less carefully