Negligence: Basic Principles

• Author: Philip H. Osborne
• Profession: Faculty of Law. The University of Manitoba
• Pages: 25-130

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CHAPTER 2

NEGLIGENCE:

BASIC PRINCIPLES

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 v ital

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 crit-

ically important control devices in negligence law: duty of care and re-

moteness of damage. Negligence liability cannot be established unless the

judge recognizes that the defendant owes the plaintiff a duty of care in

THE LAW OF TORTS26

respect of the plaintiff’s interests. This concept allows judges to regulate

the application and extent of negligence liability, excluding it from cer-

tain activities, denying its applicability to certain kinds of losses, and

excluding certain persons from the scope of the defendant’s responsibil-

ity.1 Remoteness 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 cons equences are too remote

and not compensable by the defendant. The manner in which the courts

app ly t he co ncep ts o f dut y of c are and remo tene ss o f da mag e ref‌l ect s oci al

policy and current judicial att itudes to the extent of liability for negligent

conduct. Throughout the twentieth century, there was an unrelenting,

incremental relaxation of the boundaries of negligence liability and a

dramatic expansion in the scope of the tort of negligence. Nevertheless,

the control devices continue to play an important role, particularly in

cases of nervous shock and pure economic loss, and they are of cen-

tral importance when novel claims are made involving the application 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. Cont ributory negligence by the plaintiff

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

tum of damages. Volun tar y as sump tio n of r isk is a complete defence that

arises where the plaintiff consents to t he 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 hi s fault, but by an inevita ble accident.

This, too, is a complete defence.

1Some judges and comment ators begin their an alysis of the tort of negligence w ith

the issue of th e duty of care. Nothing of impor tance turns on the orde r in which

the essent ial elements of the negligence act ion are considered. There has, however,

been some debate on the se quencing of analysis w ith respect to breach of the st an-

dard of care a nd causation in medical m alpractice litigation. For some t ime, the

Ontario Cou rt of Appeal took the position t hat causation should be res olved before

breach of the sta ndard of care is considered (Mer ingolo v. Oshawa Gene ral Hospital

(1991), 46 O.A.C. 260 (C.A.)). Recently, the Court has sof tened its attitude and has

indicated th at there is no absolute rule and it al l depends on the facts of the pa r-

ticular case Liuni (Litigation guardian of) v. Peters, [2001] O.J. No. 4724 (C.A.) and

Locke v. Smith, [2002] O.J. No. 2173 (C.A.). The Alberta Court of Appe al has taken

the position t hat the existence of a breach of t he standard of care must b e resolved

before causat ion is determined (McCardle Estat e v. Cox, [2003] A.J. No. 389 (C.A.)).

Negligence: Ba sic Principles27

Once liability has been established upon a consideration of the

aforementioned elements, damages must be assessed. Damages are

tailored 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 oper-

ates quite differently. It is predominantly a negligence/insurance sys-

tem that spreads or distributes losses caused by negligent conduct to a

broad segment of the community. This reality has h ad 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 in-

jury 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.

Consequently, negligence law is imbued with an unresolved tension

between loss-shifting rules and loss-spreading realities. Modern Can-

adian negligence law continues to seek an appropriate bal ance between

these two competing visions of its ultimate purpose.

B. THESTANDARDOFCARE: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 determi ning 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.2 The common law has, however, typically

2Some other stand ards, including that of the r easonable woman, are allude d to

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

Rev. 575.