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
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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
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.
Hercules Management v. Ernst & Young [1997] 2 S.C.R. 165
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.
(b) Breach of duty standard of care
Reasonable person test
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(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?
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.
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Blyth v. Birmingham Water works Co. 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
Varies. See extra care needed by supervising teacher in Gym.
MacCabe v. Westlock RCSD. (2001) 293 A.R. 41 (C.A.)
Generally no parental liability for children’s torts but see Manitoba
Act
(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.
Type of injury must have been reasonably foreseeable
Thin skull and crumbling skull.
Remoteness
Proximity
(d) Damage
Courts must recognize sustained damage as compensable
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