Chapter 11: Tort of Negligence
Law of Negligence
Negligence: Careless act that causes harm to another
o Careless: Failure to show the care a reasonable person would exhibit in a similar situation (reasonable care)
o Extremely common in the commercial world because it covers a broad range of harmful conduct.
o Plaintiff does not have to show that the defendant intended to cause the damage or that there were deliberate
acts that gave rise to the damage.
o Like tort law in general, seeks to compensate victims for their losses or injury. Compensation is provided after
applying rules that determine who is liable to compensate, on what basis, and for how much.
o Courts must balance to compensate victims of negligence, but without discouraging legitimate activity
Steps to a negligence action
o Lack certain specificity. Its purpose is to describe general standards that help the court assess the defendant.
o Does the defendant owe the plaintiff a duty of care? If so, proceed to next step.
Duty of care: The responsibility owed to avoid carelessness that cause harm to others
A defendant owes duty to care to anybody who is affected by their conduct (neighbour’s principle)
Since Donoghue v Stevenson, courts have refined testing on whether a duty of care is owed.
The court must assess the situation through:
1. Is there a prima facie (at first sight or on first appearance) duty of care?
a. Is the harm that occurred a reasonable foreseeable consequence of the defendant’s act?
Considers whether the defendant should have objectively have anticipated that the
their action or omission would cause harm to the plaintiff
If yes, proceed to the next question
b. Is there a relationship sufficient proximity between the parties such that it would not be
unjust or unfair to impose a duty of care on the defendant?
Considers whether the specific circumstances of the parties’ relationship are such that
the defendant is under an obligation to be mindful of the plaintiff’s interests
If yes, proceed to next stage
2. Are there residual policy considerations outside the relationship of the parties that may negate the
imposition of a duty to care?
Ensure that businesses and other defendants are not made liable to an unreasonably broad,
unknowable, and indeterminate extent
Usually, considerations that eliminate or reduce the duty of care are most likely to arise in
the area of pure economic loss
Did the defendant breach the standard of care? If so, proceed to next step.
o Defendant is judged according to “reasonable person”:
An ordinary person of normal intelligence who uses ordinary prudence to guide his conduct
Standard used to judge whether a person’s conduct in a particular situation is negligent
o Higher standard of care is used when:
The defendant exercises specialized skill
The activity or product poses a high risk
Did the defendant’s careless act or omission cause the plaintiff’s injury? If so, proceed to next step.
o Causation: The relationship that exists between the defendant’s conduct and the plaintiff’s loss or injury
Was the injury suffered by the plaintiff too remote? If not, plaintiff has proven negligence.
o Tests how far the legal liability of the defendant stretch, given that there is an obligatio