Negligence: Basic Principles

• Author: Philip H. Osborne
• Pages: 24-125

A. INTRODUCTION

The tort of negligence is composed of a number of components or ele-

ments, 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 dam-

age. 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 criti-

cally 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

24

NEGLIGENCE:

BASIC PRINCIPLES

chapter 2

in respect of the plaintiff’s interests. This concept allows judges to regu-

late 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 responsibil-

ity.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 cir-

cumstances, 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 twentieth century, there was an unre-

lenting, incremental relaxation of the boundaries of negligence liability

and a dramatic expansion in the scope of the tort of negligence. Never-

theless, the control devices continue to play an important role, particu-

larly in cases of nervous shock and pure economic loss, and they are of

central importance when novel claims are made involving the applica-

tion of negligence law to new activities, persons, or kinds of damage.

Once the plaintiff has established these elements, the defendant

may assert any of four defences. Contributory negligence by the plaintiff

is a partial defence leading to a proportionate reduction in the quan-

tum of damages. Voluntary assumption of risk is a complete defence that

arises where the plaintiff consents to the defendant’s negligence and its

consequences. Illegality operates to deny a claim, such as one for future

illegal earnings, that would subvert the integrity of the legal system.

Finally, a defendant may assert that, in spite of indications to the con-

trary, the loss was caused, not by his fault, but by an inevitable accident.

This, too, is a complete defence.

Negligence: Basic Principles 25

1 Some judges and commentators begin their analysis of the tort of negligence with

the issue of the duty of care. Nothing of importance turns on the order in which

the essential elements of the negligence action are considered. There has, howev-

er, been some debate on the sequencing of analysis with respect to breach of the

standard of care and causation in medical malpractice litigation. For some time,

the Ontario Court of Appeal took the position that causation should be resolved

before breach of the standard of care is considered (Meringolo v. Oshawa General

Hospital (1991), 46 O.A.C. 260 (C.A.)). Recently, the Court has softened its atti-

tude and has indicated that there is no absolute rule and it all depends on the

facts of the particular case (Liuni (Litigation guardian of) v. Peters, [2001] O.J. No.

4724 (C.A.) (QL)). The Alberta Court of Appeal has taken the position that the

existence of a breach of the standard of care must be resolved before causation is

determined (McCardle Estate v. Cox, [2003] A.J. No. 389 (C.A.) (QL)).

Once liability has been established upon a consideration of the

aforementioned elements, damages must be assessed. Damages are tai-

lored to the plaintiff’s individual losses and are made in a lump sum

award. Assessment of pecuniary and non-pecuniary losses arising from

personal injuries creates particularly difficult problems.

This framework of negligence law is typical of a fault-based civil

liability system. In its underlying theory, its terminology, and its con-

cepts, negligence law appears to be a loss-shifting system based upon

the moral imperative that wrongdoers should be individually liable for

the damage they cause. In practice, the negligence system operates

quite differently. It is predominantly a negligence/insurance system

that spreads or distributes losses caused by negligent conduct to a

broad segment of the community. This reality has had a profound effect

on the development and application of negligence law. In the course of

the twentieth century, it promoted a dramatic growth in the scope of

liability, an increase in the size of awards of damages in personal injury

and fatality claims, and a reformulation of some of the principles of

negligence law to provide much greater protection of the interests of

plaintiffs. Nevertheless, the public face and theoretical framework of

negligence law do not reflect this reality. They continue to reflect a loss-

shifting system that is based on personal accountability and is focused

on the issue of interpersonal justice between the litigants. Consequent-

ly, negligence law is imbued with an unresolved tension between loss-

shifting rules and loss-spreading realities. Modern Canadian

negligence law continues to seek an appropriate balance between these

two competing visions of its ultimate purpose.

B. THE STANDARD OF CARE: THE

REASONABLY CAREFUL PERSON

The primary element of negligence liability is the negligent act, a fail-

ure to take care for the safety of the plaintiff. In determining the appro-

priate degree of care, it is useful to have some standard against which

to measure the conduct of the defendant. One could suggest a number

of possible standards such as the degree of care shown by a parent to a

child, the care of a compassionate and humane person, or the care

friends exhibit to each other.2The common law has, however, typical-

26 The Law of Torts

2 Some other standards, including that of the reasonable woman, are alluded to in

L. Bender, “An Overview of Feminist Torts Scholarship” (1993) 78 Cornell L.

Rev. 575.