NEGLIGENCE Notes
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.
(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 reaoning of the House of Lords in the English
case of Anns v. London Borough of Merton.
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.
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See a competitor harming a business
(b) Breach of duty
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?
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.
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.
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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
(d) Damage
Courts must recognize sustained damage as compensable
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