3010 LAW
NEGLIGENCE (Part 1)
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.
This paper considers the duty of care and the breach of duty of
care. Causation and damages will be discussed in part 2.
(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 and the law suit fails. If the answer is “yes” a second
test is applied.
(ii) As an element of the test of duty of care, 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 reaoning of the House of Lords in the English
case of Anns v. London Borough of Merton.
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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 also a competitor A harming B by opening up a store in
competition with B’s business. While a loss of profits to B is
reasonably foreseeable, as a matter of policy the courts will
find no cause of action by B against A.
(b) Breach of duty
If and only if the two elements of the foregoing duty of care
are satisfied, the court will consider whether there was a breach of
the defendant’s duty of care.
The reasonable person test is used by the courts to determine
whether there is a duty of care on the part of a defendant. The
courts ask the following questions.
(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
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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 referred to in (i) above is one that the
reasonable person would have foreseen. However, the courts will
take into account the expertise of a profession or calling when
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.
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.
So, 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.
(c) Causation
“But for” test Remoteness
Proximity
See later
(d) Damages
Courts must recognize sustained damage as compensable
See later
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