Law 12 – MUNDY 2011
Tort law is based on mostly case precedents and
certain provincial and federal legislation;
Hence, our definitions of ‘wrongs’ & ‘negligence’
change over time with new examples in society
Negligence is a major area of tort law
It is defined as:
 unintentional
 unplanned action
 injuries result
In essence, negligence is carelessness that results in
harm (injury or damage).
Negligence vs. Intentional Torts
Negligence differs from intentional torts in that the
actions are not caused by someone deliberately
wishing to cause harm
Intentional torts, by contrast, are matters such as
assault, false imprisonment, defamation, etc.
Elements of Negligence
Plaintiff is owed a duty of care
 Defendant breached duty of care
 Plaintiff suffered resulting harm or
Duty of Care
“Duty of care” is proved through legal obligations
For example, if a mechanic neglects to tighten the
bolts on a repair of a car, causing a subsequent
accident or injury, the plaintiff (the driver) is owed a
duty of care, and the defendant (the mechanic) has
breached their duty of care
Duty vs. Standard of Care
A breach of duty of care can only be determined
(through negligence) by examining the expected
standard of care
Standard of care is determined through the test of
what a “reasonable person” would have done in
similar circumstances
Reasonable Person
Determining a “reasonable person” depends on a
number of factors:
 today’s
standards for people (by society)
 professional standards (of conduct)
 local standards (varying by community)
 environmental factors at time
Youths and Duty of Care
youths and children cannot be judged by the same
standards as adults
Since no legislation exists on youths as “reasonable
persons”, courts rely on case precedent
younger the person, less expectation of “reasonable
person” exists (hence, less liability in civil tort case)
To determine a “reasonable person”, courts use test
of foreseeability
“Would a reasonable person is similar circumstances
have foreseen the the injury as a result of their
Determines fault or liability (and to what degree)
If duty of care is demonstrated, as is defendant’s
breach of care (through standard of care by
reasonable person), then last area needing to be
proven is causation
In essence, there must be a causal connection
between the plaintiff’s actions and the defendant’s
harm (injury or damage)
Method of determining causation is through the
familiar “but-for” test
Meaning, the accident should not have occurred
otherwise, but for the actions of the negligent
Actual Harm or Loss
Once all the aforementioned has been proven, the
last area to prove is actual harm or loss.
If no significant injury or damages occurred, then
there is no need for legal action
Summary: Proof of Negligence
Does the defendant owe the plaintiff a duty of
Did the defendant breach the standard of care?
Did the defendant’s careless act cause the
plaintiff’s injury or loss?
Was there a direct connection between the
defendant’s action and the plaintiff’s injury or loss?
Was what happened foreseeable?
Did the plaintiff suffer actual harm or loss?