A. The Centrality of the Tort of Negligence

Author:Philip H. Osborne
Profession:Faculty of Law. The University of Manitoba

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At the beginning of the twentieth century, no judge or lawyer could have foreseen the substantial expansion and evolution of the Canadian law of torts that would take place in the following hundred years. We are not in any better position today to predict what the next hundred years will bring. Nevertheless, there are certain trends and themes in Canadian tort law that are likely to be influential in its development and evolution in the twenty-first century. These themes include the centrality and dominance of the tort of negligence, the dynamism and expansionary nature of the tort of negligence, the incremental drift towards a greater generalization and integration of tort rules, the reform and modernization of tort law, the dominance of the compensatory function of tort law, and the rise of alternative and supplementary legal and non-legal compensatory and deterrent mechanisms that threaten to marginalize and diminish the importance of tort law. Not all of these themes are discrete phenomena and not all of them point in the same direction, but they each warrant some attention in anticipating the future path of Canadian tort law.

In the twentieth century the tort of negligence blossomed into the dominant field of tort liability. Virtually all activities that carry a risk of

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personal injury or property damage are now subject to the general duty of care, and the courts continue to expand liability to new interests, activities, and losses. The dominance of the tort of negligence is also indicated by the extent of the intrusion of fault concepts into other areas of tort law. The strict liability torts have, for example, been heavily diluted by fault concepts, most notably in the definition of non-natural use in the rule in Rylands v....

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