Negligence: Basic Principles

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

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CHAP TER 2

NEGLIGENCE:

BA SIC PR INCIPLES

A. I NTRODUC TION

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

ments, most of which must be proved by the plaint iff. These element s

are not all self-evident. They are conventional concepts th at 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 wit hout

proof of these three core elements. The negligent act is determined by

identifying t he appropriate standard of care and applying it to the facts

of the case. Causation is established by showing a link bet ween 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 plaintiff s, the

nature of the loss, and the nat ure of the defendant’s activities must be

addressed. Consequently, control devices have been developed to keep

negligence liability within appropriate boundaries. There are two cr it-

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

moteness of damage. Negligence liability cannot be established unless the

judge recognizes th at the defendant owes the plaintiff a duty of care in

THE LAW OF TORTS26

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

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

tain activities, denying its applicabil ity to certain k inds 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 defenda nt 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 t he 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 un relenting,

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, particula rly 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 h as established the se elements, the defendant

may assert any of four defences. Cont ributory negligence b y the plaintiff

is a partia l 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 earni ngs, that would subvert the integrity of the legal s ystem.

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.

1 Some 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 Principles 27

Once liability has been established upon a consideration of the

aforementioned elements, damages must be assessed. Damages are

tailored to the plainti ff’s individua l losses and are made in a lump sum

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

personal injurie s creates particularly diff‌icult problems.

This framework of negligence law is typical of a fault-based civ il

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

cepts, negligence law appears to be a loss -shifting system b ased 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 c aused 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 t he scope of

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

jury and fatalit y 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 inter personal justice bet ween the litigants.

Consequently, negligence law is imbued with an unresolved tension

between los s-shifting ru les and los s-spread ing real ities. Modern Can-

adian negligence law continues to seek an appropriate bal ance between

these two competing v isions of its ultimate pur pose.

B. THESTANDARDOF CARE:THE

REASONABLY CAREFUL PERSON

The primary element of negligence liability i s 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

2 Some 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.