Documentation:Torts/Categories of Negligence
Categories of Negligence
One of the landmark contributions Donoghue v. Stevenson made to the common law was to identify a single principle—the neighbour principle—as a unifying feature of the various categories of negligence that had been established in the case law. On its facts, Donoghue v. Stevenson was about the duty of care owed by a manufacturer of consumer products to the end consumer, a category known today as products liability.
Incremental development
The neighbour principle did not represent the abolition of categories of negligence. To the contrary, it has been adopted as a lens through which new relationships of neighbourhood may be recognised at common law. Lord Macmillan presciently declared in his judgment that "the categories of negligence are never closed".[1] The Supreme Court of Canada built upon this insight in Cooper v. Hobart, stating that arguments for the recognition of a new category of negligence must be approached within the context of the existing categories:[2]
[S]ufficiently proximate relationships are identified through the use of categories. The categories are not closed and new categories of negligence may be introduced. But generally, proximity is established by reference to these categories. This provides certainty to the law of negligence, while still permitting it to evolve to meet the needs of new circumstances.
The common law judicial method favours incremental development on a case by case basis. Judicial cautiousness in recognising new developments is meant to ensure that that while new categories of negligence can be recognised when the circumstances warrant it, they should not "spring into existence overnight."[3]
Categories of negligence
Through the adjudication of cases the courts have come to recognise a number of different categories of relationships to which the tort of negligence applies. In each of these categories, it remains the case that liability is only imposed where the five elements of duty, breach, damage, factual causation and absence of remoteness are established.
Broadly put, the ease or difficulty that plaintiffs may face in establishing the five elements of negligence (as well as overcoming defences and securing remedies) tends to vary between different contexts. For instance, while it is well-established that product manufacturers owe a duty to take reasonable care that the end consumer is not harmed by using their product, in practice plaintiffs can face tough hurdles demonstrating through expert evidence that a manufacturer's operations fell short of the standard of care, or that they were the cause of injury,[4] or that an actual injury suffered was reasonably foreseeable and not remote.[5]
In claims brought by third parties against hosts of patrons and guests who go on to cause injury, the question of whether a duty of care exists has been fraught. Courts have grappled with the question of whether a recognised duty owed by commercial hosts may be extended to recognising a duty on some social hosts also.
Where the damage claimed is physical injury or property damage courts more readily recognise a claim in negligence. But courts have struggled and continue to struggle to demarcate the boundaries of when claims for mental injury or for pure economic loss sound in actionable damage.
In short, different elements of the tort of negligence tend to be difficult to make out for different categories. This should be born in mind as you encounter different categories of negligence.
Discussion Questions
- What features of the relationship between publicans and patrons favour the imposition of a duty of care?
- Is the policy concern of indeterminate liability a compelling reason to refrain from recognizing pure economic loss?
Quiz