Negligence: Basic Principles

• Author: Philip H. Osborne
• Pages: 25-144

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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 analyzing the

various issues that present themselves in negligence litigation.

There are three core elements: the negligent a ct, 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 fact s

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 negl igence 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 critic-

ally important control devices i n negligence law: duty of care and remote-

ness 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 plainti ff’s interests. This concept allows judges to regulate

THE LAW OF TORTS26

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 respons-

ibility.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 fai r-

ness may dictate that the defendant should be sheltered from respons-

ibility 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 liabil-

ity 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.

In this centur y the pace of expansion 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 import ance 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. Contributory negligence by the plaintiff

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

tum of damages. Voluntary assu mption of risk is a complete defence that

arises where t he plaintiff con sents 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 a ccident.

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 plaintiff’s individual losses 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 orde r

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

was, however, some debate on the se quencing of analysis wit h 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] OJ No 979 (CA) and McCardle Estate v

Cox, [2003] AJ No 389 (CA).

Negligence: Bas ic Principles 27

award. Asses sment of pecuniary and non-pecuniar y losses arising from

personal injuries creates particularly diff‌icult problems.

This framework of negligence law is typical of a fault-based civil 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 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 da mages in personal injury 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 interpersonal

justice between the litigants. Consequently, negligence law is imbued

with an unresolved tension between loss-shifting rules and loss-spread-

ing realities. Modern Canadian negligence law continues to seek an

appropriate balance between these two competing visions of its ultim-

ate 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 ot her.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 is no exception. The standard of

2 Some other stand ards, including that of t he reasonable woman, are allude d to in

L Bender, “An Overview of Femi nist Torts Scholarship” (1993) 78 Cornell L Rev

575.