Chapter 6: Negligence
Negligence, in non-legal terms usually means “carelessness.” In the legal term it is much
oTorts of Negligence: determines whether the defendant can be held liable for carelessly
causing the plaintiff to suffer a loss or injury. The tort of negligence requires the plaintiff to
prove that the defendant:
Owed a duty of care, in that it was required to act carefully toward the plaintiff.
Breached the standard of care by acting carelessly.
Caused harm to the plaintiff.
Even if the plaintiff proves those 3 elements, the defendant may be able to avoid liability
by proving a defence. 3 possibilities are especially important. The defendant may show
that at least one of these defences existed:
The plaintiff injury was caused by it owns 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 simply refers to negligence that is committed by a professional
person (i.e. a lawyer, banker etc.)
The law of negligence contains a tension between 2 important values. On one hand, the
courts want scope of liability in order to compensate ppl who suffer injuries. On the other
hand, the courts recognize that the imposition of liability sometimes actually hurts
E.g. If a business compensates everybody, it might not be able to carry on.
DUTY OF CARE
oDuty of Care: occurs when the defendant is required to use reasonable care to avoid injuring
the plaintiff. Without a duty of care, there cannot be a liability, even if the defendant carelessly
injured the plaintiff.
Test for Determining the Existence of Duty of Care
Duty of care is required for an action in negligence. Based on Donoghue v Steveson, the Canadian
courts have developed a unique test for the creation of a duty of care:
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. We already know, for
instance, that the bottler of a beverage owes a duty of care to a consumer.
If the duty of care question has not already been answered for the particular type of case
that the judge is hearing, then it will be necessary to ask 3 questions in order to
determine whether or not a duty of care should exist:
i.Was it reasonably foreseeable that the plaintiff could be injured by the
ii.Did the parties share a relationship of sufficient proximity?
iii. If an injury was reasonably foreseeable, and if the parties shared a
relationship of sufficient proximity, then a duty of care will presumably exist.
The judge might still deny a duty of care, however, on the basis of policy
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