NEGLIGENCE
Plaintiff must prove
(a)
A duty of care is owed to the plaintiff by the defendant
(b)
There was a breach of the duty
(c)
The breach of duty caused injury to the plaintiff
(d)
There is injury to the plaintiff of a kind recognized by
the court.
(a) Duty of care
(i) The first test is would the reasonable person have foreseen that
the act or omission of the plaintiff would cause injury to the
defendant? If the answer is “no” there is no breach of the duty
of care. If the answer is “yes” a second test is applied.
The NEIGHBOUR test of Donoghue v. Stevenson. “Neighbour”
is someone that a reasonable person ought to reasonably foresee
may be injured by our act or omission.
See the reasonable driver, the reasonable manufacturer of
children’s toys, motor vehicles, bar owners/tenders.
(ii) The second test is, even if a reasonable person would have
foreseen harm to the plaintiff caused by the defendant’s act or
omission, does the court, as a matter of policy, recognize liability
for the injury caused by the defendant’s act or omission?
The latter test is known as the “Anns test” as the Supreme Court of
Canada followed the reasoning of the House of Lords in the
English case of Anns v. London Borough of Merton [1978] A.C.
728. A local authority was liable to house holders for damage to
1
houses caused by inadequate building practices and the failure of
the local authority to properly inspect the foundations. The
defendant can avoid liability if the court considers there are
considerations that should limit or avoid the duty of care. In Anns
the H of L did not limit the duty but did in subsequent cases.
Canada continues with the Anns approach.
For example a stranger may see a two-year-old child face down
in half a metre of water but decide he does not have time to
rescue the child. If the child drowns because of the stranger’s
failure to act, the latter is not liable for the child’s death. While
the death may be a reasonably foreseeable result of inaction,
the stranger has no legal duty to act.
See a competitor harming a business through competition.
Culturally this is not accepted by the courts, because
competition is viewed as a cornerstone of Canadian society.
Pregnant woman drinks substantial amount of alcohol while
the child is in the womb. While reasonably foreseeable the
child may be disabled with FAS, policy overrides and there is
no liability on the mother to compensate her child. The only
exception to this is an Alberta statute which permits a child
born defective due to the mother’s negligence while driving a
motor vehicle causing injury to the fetus and subsequently the
child. This may be helpful to the child and the parents, when
insurance payments are made to the child. Some Albertans
believe this legislation is a forerunner of an attempt to have
fetuses considered to be “persons” and so incapable of being
unlawfully harmed by abortion.
Hercules Management v. Ernst & Young [1997] 2 S.C.R. 165
The Anns reasoning was present . While it was reasonably
foreseeable that shareholders of Hercules and others might
rely on the audit to invest in more Hercules shares, the SCC
2
found that the purpose of the audit was to assess management.
The court also applied the reasoning of Anns that, as a matter
of policy, liability should not apply to the defendant where
there is indeterminate liability to persons even reasonably
foreseeable persons.
Cooper v. Hobart [2001] 3 S.C.R. 537.
Investors sued Registrar of Mortgage Brokers in B.C. which
was aware of serious violations of Mortgage Brokers Act by
Hobart. Claim that Hobart should have been suspended. Held
insufficient proximity but even if not, good reason not to
recognize a duty as taxpayers would have to pay and
essentially insure the investors. As a matter of judicial policy
liability should not be imposed on taxpayers.
(b) Breach of duty standard of care
Reasonable person test
(i) Was there a there a risk or danger that defendant’s act or
omission would cause harm to the plaintiff?
IF NO, NO CAUSE OF ACTION
IF YES, GO TO STEP (ii)
(ii) Was there anything the defendant could have done to prevent
or avoid the harm to the plaintiff?
IF NO, NO CAUSE OF ACTION
IF YES, GO TO STEP (iii).
(iii) Weighing the magnitude of the risk to the plaintiff against
the magnitude of the burden on the defendant necessary to
prevent the harm to the plaintiff was it reasonable to require
the defendant to avoid or prevent the harm to the plaintiff?
3
The standard of care is that of the reasonable person in the
circumstances. So the danger is one that the reasonable person
would have foreseen. However, the courts will take into account
the expertise of a profession or calling in determining what is
reasonable. So a surgeon must foresee the risks foreseeable by a
reasonable surgeon even if she lacks the skill and knowledge that
would enable the reasonable surgeon to foresee the risks.
Learner driver is held to same standard as experienced driver.
The magnitude of a risk is measured by the combined weight
of the probability of the risk materializing and the seriousness
of the consequences if the risk does materialize.
If a defendant would have to bear an unreasonably large burden to
prevent a miniscule risk of harm to the plaintiff, there will be no
breach of legal duty of care.
Blyth v. Birmingham Waterworks Co. (1856) 156 E.R. 1047
(Exchequer Court). The court argued deeper pipes would have
been too expensive and the event was unusual – that is unusually
cold weather.
Bolton v. Stone [1951] A.C. 850. No breach of duty as defendant
would have to have taken excessive steps to prevent the harm to
the woman hit by the cricket ball. Also the probability of harming
such a person was found to be extremely low.
The standard of care varies. See the extra care needed by the
supervising teacher in a school gym. MacCabe v. Westlock
RCSD. (2001) 293 A.R. 41 (C.A.). The school and the teacher
ought to have taken greater steps to protect the inexperienced
children. An extra teacher could have been sufficient to meet the
standard of care.
4
Note that there is generally no parental liability for children’s torts
but see the Manitoba Parental Responsibility Act. This applies
only to torts against property. See also Ontario Parental
Responsibility Act and JSTOR E.R. Alexander, The University of
Toronto Law Journal Vol. 16 No. 1 (1965) pp. 165-172.
(c) Causation
“But for” test
See Walker Estate v. York Finch General Hospital [2001] 1
S.C.R. 647. Red Cross liable because material cause even though
others involved – donors. The negligent screening procedures of
the Red Cross was held to be a material cause of the harm to those
who contracted HIV and AIDS. See the case Snell v. Farrell –
summary on class website.
Type of injury must have been reasonably foreseeable
Thin skull rule
The courts consider it reasonably foreseeable that damage may be
sustained by a person with an unusually thin skull or unusual
susceptibility to harm that would not be sustained by the average
person in similar circumstances. If a defendant gently threw a
fluffy snowball at a plaintiff that caused serious brain damage due
to a thin skull, the defendant could not avoid liability even though
the average person would not have sustained such an injury. If the
type of injury was reasonably foreseeable, the defendant would be
liable in spite of the low probability of such an injury to an average
person.
The crumbling skull
If there is evidence that the victim of a tort at the time of the injury
has an existing condition that would have deteriorated regardless
of the injury received from the tort, the defendant will still be
liable for damages to the extent that the injury accelerated the
subsequent deterioration in the plaintiff’s health. So if the medical
5
evidence indicated that the plaintiff would likely have died from
his pre-existing condition six years after the injury caused by the
defendant, the plaintiff’s dependants would receive compensation
for only six years of the plaintiff’s loss of future earnings and loss
of facility. See the case Whitfield v. Calhoun (1999) 242 A.R. 201
(Q.B.): p. 135 of the textbook.
Remoteness
Proximity between the plaintiff and the defendant is relevant to
causation. If a defendant negligently crashes into a pole that carries
telephone wires to 5000 telephone users, he will certainly be liable
to the owner of the pole and wires. However, if the users of the
telephones suffer loss of income due to lack of telephone service
for three days, it is likely that such type of loss will be considered
too remote to require compensation from the defendant.
See the Canadian National Railway Company v. Norsk Pacific
Steamship Company [1992] 1 S.C.R. 1021. The ship crashed into
the CNR railway bridge putting the bridge out of action for a
significant period of time. The SCC found the shipping company
for damages sustained by CNR, such as repair of the bridge and
loss of profit due to the inability of trains to cross the bridge.
Arguably others could have suffered damages. Businesses reliant
on the trains to deliver products for sale could seek compensation
from Norsk because of their loss of profits. However, the type of
damage sustained would likely be too remote to give rise to a
causal link between the crash and the damages to businesses reliant
on the railway.
(d) Damage
Courts must recognize sustained damage as compensable.
This will be discussed later.
6
7