B. The Dynamism of the Tort of Negligence

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

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The dominance of the tort of negligence is due, in part, to the expansionary forces unleashed by Donoghue v. Stevenson,2Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd.,3and Anns v. Merton London Borough Council.4No other area of Canadian tort law has displayed the vitality of negligence law, and while Cooper v. Hobart5has slowed its advance, there is little evidence to suggest that its capacity for growth is spent. Further growth in the amount of litigation and the scope of liability may be expected in a number of areas.

First, there will be cutting edge cases in areas such as product design, governmental services, educational services, crime prevention, business activities and health care. The recent history of the tort of

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negligence has been one of incremental expansion and that is likely to be its foreseeable future. There are also a number of current activities that have not felt the full impact of negligence liability. The extent of the responsibility of many persons such as religious leaders, mediators, counsellors, therapists, adoption counsellors, and computer technicians and service providers has yet to be tested.

Second, current litigation in respect of prenatal injuries and defective medical products such as breast implants and heart valves may herald a substantial increase in negligence liability in the general area of biotechnology, including medicine and genetic engineering. At the frontiers of medical science there are special risks and the potential for mass disasters. The tort principles relating to professional liability, products liability, prenatal injuries, and wrongful birth may foster further extensions of negligence liability in this area.

Third, there is likely to be an increase in mass "toxic tort" claims arising from injuries and illness caused by chemical compounds, toxic products, and environmental pollution. There has been more experience of these claims in the United States. The victims of asbestos, Agent Orange, radiation, tobacco, defective pharmaceuticals, and environmental pollution have all turned to the American courts to seek compensation. The Canadian tort system is protected from some of these claims by the workers’ compensation schemes and the lack of strict liability for defective products. Nevertheless, Canada is not immune to toxic disasters, and the greater availability of modern class actions facilitates mass claims. Potential claimants include not only those persons who...

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