A. Introduction

Author:Philip H. Osborne
Profession:Faculty of Law. The University of Manitoba

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The tort of negligence is composed of a number of components or elements, most of which must be proved by the plaintiff. These elements are not all self-evident. They are conventional concepts that the courts have found of assistance in clarifying, organizing, and analysing the various issues that present themselves in negligence litigation.

There are three core elements: the negligent act, causation, and damage. It is, indeed, difficult to conceive of negligence liability without proof of these three core elements. The negligent act is determined by identifying the appropriate standard of care and applying it to the facts of the case. Causation is established by showing a link between the defendant’s negligent act and the plaintiff’s damage. Damage is the vital element that triggers the claim and launches the litigation process.

In Canadian negligence law, however, a defendant is not responsible for every consequence of his negligent act. Important and contentious issues in respect of the extent of liability, the range of plaintiffs, the nature of the loss, and the nature of the defendant’s activities must be addressed. Consequently, control devices have been developed to keep negligence liability within appropriate boundaries. There are two critically important control devices in negligence law: duty of care and remoteness of damage. Negligence liability cannot be established unless the judge recognizes that the defendant owes the plaintiff a duty of care in respect of the plaintiff’s interests. This concept allows judges

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to regulate the application and extent of negligence liability, excluding it from certain activities, denying its applicability to certain kinds of losses, and excluding certain persons from the scope of the defendant’s responsibility.1Remoteness of damage plays a similar role. A negligent act may have utterly improbable consequences that are entirely removed in time and place from the defendant’s act. Causation cannot be denied, but fairness may dictate that the defendant should be sheltered from responsibility for some or all of the consequences of his negligent conduct. In such circumstances, the court may hold that the consequences are too remote and not compensable by the defendant. The manner in which the courts apply the concepts of duty of care and remoteness of damage reflect social policy and current judicial attitudes to the extent of liability for negligent conduct. Throughout the...

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