Chapter 11 – The Tort of Negligence
The Law of Negligence
What is Negligence?
Define:A careless act that causes harm to another.
The law understands carelessness as a failure to show RESONABLE CARE – the
care a reasonable person would
Who has suffered loss by relying on poor advice provided by an accountant, lawyer,
architect, or engineer
Whose furniture has been damaged in transit by a moving company
Like tort law in general – seeks to compensate victims for their loss or injury
Steps to a NegligenceAction
Step 1: Does the defendant owe the plaintiff a duty ofIf yes, proceed to the
Duty of care: the responsibility owed to avoid carelessness that causes harm to
Neighbor principle: a defendant owes a duty of care to anyone who might
reasonably be affected by the defendant’s conduct
LANDMARK CASE: Donoghue v Stevenson  AC 562 (HL)
Factual Background: Donoghue’s friend bought her a ice cream and a bottle of
ginger beer. Later, he found there was a decomposed snail in the bottle. She became
ill and sued the manufacture for damages, based on negligence
Resolution: Manufactures lost based on the following statement: “You must take
reasonable care to avoid acts or omissions which you can reasonably foresee would
be likely to injure your neighbor. Who is my neighbor? Person who is so closely
and directly affected by my act.”
Stage 1: Is there a prima初步印象；乍看的 duty of care?
a. Is the harm that occurred a reasonably foreseeable consequence of the
b. Is there a relationship of sufficient proximity between the parties such
that it would not be unjust or unfair to impose a duty of care on the
Stage 2: Are there residual policy considerations outside the relationship of the
parties that may eliminate or reduce the imposition of a duty of care?
- Objective: ensure that businesses and other defendants are not made liable to
an unreasonably broad, unknowable, and indeterminate extent
- Considerations are more likely arise in pure economic loss than in case of
Step 2: Did the Defendant Breach the Standard of Care?
The standards of care: a reasonable person is regarded as being an ordinary person
of normal intelligence who use ordinary prudence in guide his conduct
THE RESONABLE PERSON IS NOT PERFECT
Professionals exercise specialized skills are not applied to the above rule
Where the activity or product poses a high risk , the law imposes a higher standard of care
Step 3: Did the Defendant’s Careless Act (or Omission) Cause the Plaintiff’s
If causatio因果关系 cannot be determined, ask the following question: Would
the harm not have occurred but for the defendant’s actions?
Case: Kauffman v Toronto Transit Commission  SCR 251
Factual Background: Mr. Kauffman was using the escalator owned by the TTC.
The escalator was equipped with a metal-clad handrail instead of the rubber
type. Several youths pushed each others, and one fell on her, which caused her
injuries. She sued the TTC for damages, claiming that it had been negligent in
stalling an untested handrail made of metal.
Resolution: TTC did not cause the loss suffered by Kauffman. The cause of the
fall was the negligent conduct of the youths who fell on her. The nature of the
handrail though not as effective as a rubber one, but did not contribute to the
accident. Furthermore, the TTC did not owe a duty to supply supervision of
those using the escalator.
Step 4: Was the Injury Suffered by the Plaintiff Too Remote?
Remoteness of damage: The absence of a sufficiently close relationship
between the defendant’s action and the plaintiff’s injury
Case: Spagnolo v Margesson’s Sports Ltd (1983)
Factual Background: A customers car was stolen from parking lot due to the
negligence of the parking lot owner in keeping the keys safely secured. Six days
later, the thief was in an accident with the plaintiff while driving the stolen car.
The plaintiff sued the owner of the parking lot.
Resolution: The damages to the plaintiff was not a reasonably foreseeable
consequence of the parking lot owner’s negligence, particularly given that the
accident occurred so long after the theft.
Thin Skull Rule: the principle that a defendant is liable for the full extent of a
plaintiff’s injury even where a prior vulnerability makes the harm more serious
than it otherwise might be
Case: Mustapha v Culligan of Canada Ltd. 2008 SCC 27
Factual Background: Mustapha was a customer of Culligan, a manufacturer and
supplier of drinking water. He found that there was a dead fly in a bottle. He
became obsessed with the dead fly and worried about his family’s health.
Resolution: The manufacture did owed a duty of care to Mustapha to provide
clean water and that it breached the standard of care. However, the mental injury
would not occur in the ordinary persona faced with a dead fly; therefore, the
think skull rule did not apply.
Traditionally, tort law is reluctant to permit s recovery for pure economic loss.
When a person is in a contractual relationship causes someone else to suffer a
financial detriment only, such a loss is generally not recoverable.
Defences to a NegligenceAction
Contributory Negligence Define: the plaintiff contributed partially caused the injuries that wer