Negligence: Basic Principles

• Author: Philip H. Osborne
• Profession: Faculty of Law. The University of Manitoba
• Pages: 25-138

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CHA PTER 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 pla intiff. These elements

are not all self-evident. They are conventional concepts that the courts

have found of assistance in clarif ying, organizing, and analysing the

various issues t hat present themselves in negligence litigation.

There are three core element s: 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 i s determined by

identifying the appropriate stand ard of care and applying it to the facts

of the case. Causation i s established by showing a l ink between the

defendant’s negligent act and the plaintiff ’s damage. Damage is the vital

element that triggers t he claim and launches t he litigation process.

In Canadian negligence law, however, a defendant is not re spon-

sible for every consequence of his negligent act. Important and conten-

tious issue s in re spect of t he extent of liability, the range of pla intiffs,

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 i mportant control device s in negligence law: duty of care and

remoteness of damage. Negligence liability ca nnot be established unless

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

care in respect of the plaintif f’s interests. This concept al lows judges

THE LAW OF TORTS26

to regulate the application and e xtent of negligence liability, excluding

it from certain activ ities, denying its applicability to certain kinds of

losses, and excluding certain pers ons from the scope of the defendant’s

respon sibilit y.1 Remoteness of damage plays a similar role. A negligent

act may have utterly improbable consequences that are enti rely 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 con-

duct. In such circumstances, the court may hold that the consequences

are too remote and not compensable by t he defendant. The m anner in

which the courts apply the concepts of duty of care and remoteness of

damage ref‌lect social policy and cur rent judicial attitudes to the extent

of liability for negligent conduct. Throughout the twentieth century,

there was an unrelenti ng, incremental relaxation of the boundaries of

negligence liability and a dramatic expansion in the scope of the tort

of negligence. In this centur y the pace of expan sion has slowed but

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

cases of nervous shock and pure economic loss, and they are of central

importance when novel claims are made involvi ng t he applicat ion of

negligence law to new activities, person s, 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 proport ionate reduction in the quan-

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

arises where the plaintif f consents to the defendant’s negligence and it s

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

illegal earnings, t hat would subvert the integr ity of t he legal system.

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

trary, the loss was caused, not by hi s fault, but by an ine vitable accide nt.

This, too, is a complete defence.

Once liability has been established upon a consideration of the

aforementioned elements, damages must be assessed. Damages are

tailored to the plaintif f’s individual loss es and are made in a lump sum

1 Some judges and comment ators begin their ana lysis of the tort of negligence

with the is sue of the duty of care. Nothing of imp ortance turns on the ord er

in which the es sential elements of the negl igence action are considered. There

was, however, some debate on the se quencing of analysis w ith respect to breach

of the standa rd of care and causation in med ical malpractice litigat ion. It now

seems sett led that the standard of c are issue must be resolved before c ausation

is considered. S ee Bafaro v. Dowd , [2010] O.J. No. 979 (C.A.) and McCardle Estate

v. Cox, [2003] A.J. No. 389 (C.A.).

Negligence: Basic P rinciples 27

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

personal injuries creates particul arly diff‌icult problems.

This framework of negligence law is t ypical of a fault-based civ il lia-

bility system. In its underlying theory, its terminology, and its concepts,

negligence law appears to be a loss -shifting system based upon the moral

imperative that wrongdoers should be indiv idually liable for the damage

they cause. In practice, the negligence system operates quite differently.

It is predominantly a negligence/insurance system that spreads or dis-

tributes losses caused by negligent conduct to a broad segment of the

community. This reality has had a profound ef fect on the development

and appl ication of negligence law. In the cou rse of the twentiet h century,

it promo ted a dra matic gr owth in t he scope o f liabil ity, an incr ease in t he

si ze of aw ards of da mages in pe rson al inj ury a nd fat alit y cla ims, and a re-

formulation 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 re al-

ity. They continue to ref‌lect a loss-shift ing system that is ba sed on per-

sonal accountability and is focused on t he issue of interpersonal justice

between t he lit igants. Consequently, negligence law i s imbued wit h an

unresolved ten sion between loss-shifting rules and loss-spreading real-

ities. Modern Canad ian negligence law continues to s eek an appropriate

balance between these two competing visions of its ultimate purpose.

B. THE STANDAR D OF CA RE: THE

RE ASONABLY CAR EFUL PERSON

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

ure to take care for the sa fety 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 chi ld, t he ca re of a compassionate and humane p erson, or the care

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

resorted to the reasonable person when it is in need of a normative stan-

dard of conduct, and negligence law i s no exception. The standard of

care that must be met in the tort of negligence is that of the reasonably

careful person in t he circumstance s of the defendant.

2 Some other stand ards, including that of t he reasonable woman, are allud ed to

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

Rev. 575.