Documentation:Torts/Negligence

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TORT LAW
CASEBOOK
Introduction
Dignitary Torts
Defamation • Discrimination • Harassment • Intentional infliction of mental suffering • Invasion of privacy • Trespass to the person
Property Torts
Interference with goods • Interference with land • Non-natural use of land • Private nuisance • Public nuisance
Negligence Tort
Duty of care • Breach of duty • Damage • Causation • Remoteness
Negligence Categories
Employment • Environmental pollution • Harmful products • Hosting patrons and guests • Infliction of mental injury • Misrepresentation • Occupation of premises • Professional services • Public authorities • Pure economic loss • Relational economic loss • Rescuers • Shoddy goods or structures • Treatment of indigenous children • Unborn children
Dishonesty & Abuse of Position Torts
Abuse of process • Breach of confidence • Conspiracy • Fraud • Inducing breach of contract • Injurious falsehood • Intimidation • Malicious prosecution • Misfeasance in public office • Passing off • Spoliation • Unlawful interference with economic interests
Strict Liability
Keeping dangerous animals • Non-natural use of land • Ultrahazardous activities • Vicarious liability
Defences
Apportionment of liability • Consent • Defamation defences • Defence of property • Denials • Excuses • Illegality • Legal authority • Limitation • Necessity • Self-defence
Remedies
Apologies • Damages • Injunctions • Insurance • Legal costs • Mitigation • Proprietary
Tort Law & Legal Systems
Charter values • Class actions • Concurrent actions • Constitutional torts • Indigenous dispute resolution • No-fault compensation schemes
Tort Theory
Instrumental theories • Constructive theories • Critical theories • Reflexive theories
Study Resources
1L strategy • Answer exercises • Quizzes • Beswick's course site • Opening Up Tort Law Project
Index
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Negligence

The tort of negligence allows plaintiffs to recover for damage that is caused when someone who owes them a duty of care behaves in a manner which falls short of said duty.[1] The Supreme Court of Canada has defined negligent conduct as that which "creates an objectively unreasonable risk of harm."[2]

The landmark case that precipitated courts to strive for a coherent approach to negligence was Donoghue v. Stevenson—a case where the plaintiff fell ill after consuming a snail-tainted gingerbeer float that their friend had bought for them.[3][4] Donoghue v. Stevenson was influential, in part, because of Lord Aitken's articulation of the neighbour principle which, according to Professor Linden, "provide[d] a magnificent vehicle to enable us to discuss what is acceptable and proper conduct and what is unacceptable and improper conduct".[5]

In Donoghue v. Stevenson, Lord Macmillan averred that "[t]he categories of negligence are never closed",[6] and in the years that have followed, it can be seen the law of negligence has continued to expand.

Elements of negligence

Courts have expressed the elements of negligence in a number of ways, ranging from two to five elements.[7] The standard seems to be a four-element conception: "duty, breach, cause, and damage".[7] However, some scholars argue that a five-element approach is best, as the four-element conception "misleadingly conflates two distinct ideas that too often are linked uncomfortably together under the umbrella term, 'cause': factual causation and proximate cause",[8] the latter concept also being known as legal causation or remoteness.[9]

In Mustapha v. Culligan and 1688782 Ontario Inc v. Maple Leaf Foods Inc, the Supreme Court of Canada set out the test with four elements but explicitly split the fourth element into factual causation and legal causation:[1][10]

A successful action in negligence requires that the plaintiff demonstrate (1) that the defendant owed him a duty of care; (2) that the defendant’s behaviour breached the standard of care; (3) that the plaintiff sustained damage; and (4) that the damage was caused, in fact and in law, by the defendant’s breach.

Elements of negligence[1]
1. The defendant owed the plaintiff a duty of care
2. The defendant's behaviour breached the standard of care
3. The plaintiff sustained damage
4. The plaintiff's damage was caused in fact by the defendant's breach
5. The plaintiff's damage was caused in law by the defendant's breach

Duty of care

The first element a plaintiff must prove is that the defendant owed them a duty of care.[1] The duty analysis "asks whether this relationship is so close that the one may reasonably be said to owe the other a duty to take care not to injure the other".[11] In Canada, this stage may involve relying on an analogous established duty of care or by the plaintiff establishing a novel duty of care under what is known as the Anns/Cooper test.[12]

Breach of duty

At the breach stage, a plaintiff "must prove that the defendant did not meet the standard of care", which involves establishing what the appropriate standard is, as well as showing that the standard was breached.[13]

Damage

This element requires that the plaintiff prove that they experienced "a loss which is recognised in law as compensatable by an award of damages".[14]

Causation in fact

Factual causation typically requires that the plaintiff satisfies a "but-for" test of causation.[15] This means "the plaintiff must prove on a balance of probabilities that, but for the tortious conduct of the defendant, the plaintiff would not have sustained the injury complained of."[16] In some cases, though, the but-for test is not suitable and alternative tests may be applied instead.[17][18]

Remoteness in law

Remoteness, also known as causation in law or proximate cause, considers whether “the harm [is] too unrelated to the wrongful conduct to hold the defendant fairly liable”.[19] This inquiry involves considering factors such as the reasonable foreseeability of the actual injury,[20] intervening events,[21] the eggshell skull principle,[22] and the crumbling skull principle.[23]

Diagram for pleading the tort of negligence

Defences

Defences to negligence in Australia
In this episode of Just Torts, host Brent Liang discusses potential defences to negligence with Giacomo Rotolo-Ross and Maxine Jeric, in the context of Australian tort law.[24]

Once the plaintiff has proven the elements of negligence on a balance of probabilities, the defendant may wish to raise a defence. Common defences raised in response to claims of negligence include assumption of risk and illegality, as well as partial defences concerning apportionment of liability.


  1. ↑ 1.0 1.1 1.2 1.3 Mustapha v. Culligan, 2008 SCC 27 (§17.1.3) at para 3.
  2. ↑ Ryan v. Victoria (City), 1999 CanLII 706 (SCC) (§14.1.2.2, §14.2.6.2) at para 28.
  3. ↑ Donoghue v. Stevenson, [1932] UKHL 100 (BAILII) (§13.1).
  4. ↑ Linden, AM (1983). "The Good Neighbour on Trial: A Fountain of Sparkling Wisdom". UBC Law Review. 17 (1): 67, 86. (§13.1.2).
  5. ↑ Linden, AM (1983). "The Good Neighbour on Trial: A Fountain of Sparkling Wisdom". UBC Law Review. 17 (1): 86, 89. (§13.1.2).
  6. ↑ Donoghue v. Stevenson, [1932] UKHL 100 (BAILII) (§12.4.2) at para 80.
  7. ↑ 7.0 7.1 Owen, David G (2007). "The Five Elements of Negligence". Hofstra Law Review. 34 (4): 1673.
  8. ↑ Owen, David G (2007). "The Five Elements of Negligence". Hofstra Law Review. 35 (4): 1673–74.
  9. ↑ Mustapha v. Culligan, 2008 SCC 27 (§17.1.3) at para 14.
  10. ↑ 1688782 Ontario Inc v Maple Leaf Foods Inc, 2020 SCC 35 (§19.3.2) at para 18.
  11. ↑ Mustapha v. Culligan, 2008 SCC 27 (§17.1.3) at para 4, citing Donoghue v. Stevenson, [1932] UKHL 100 (BAILII) (§13.1).
  12. ↑ Rankin’s Garage & Sales v. JJ, 2018 SCC 19 (§13.4.2.3) at para 18.
  13. ↑ Katsivela, M (2017). "The Breach of the Standard of Care and the Concept of Fault in Civil Law in Canada: A Comparative Study". Canadian Bar Rev. 95: 539 (§14.1).
  14. ↑ Re T&N Ltd, [2005] EWHC 2870 (Ch) (§15.1) at para 25.
  15. ↑ Clements v. Clements, 2012 SCC 32 (§16.2.2) at para 46.
  16. ↑ Snell v. Farrell, 1990 CanLII 70 (SCC) (§16.1) at para 15.
  17. ↑ Suen, Ching (14 September 2019). "Material Contribution: Bridging the Evidentiary Gap". LSE Law Review Blog. (§16.2).
  18. ↑ Burnett, Gill (6 April 2020). "The Doctrine of Loss of Chance: Recent Developments". DAC Beachcroft. (§16.3).
  19. ↑ Mustapha v. Culligan, 2008 SCC 27 (§17.1.3) at para 12 citing Allen M Linden & Bruce Feldthusen, Canadian Tort Law, 8th ed (Markham: LexisNexis Butterworths, 2006).
  20. ↑ Nelson (City) v. Marchi, 2021 SCC 41 (§17.1.4) at para 97.
  21. ↑ Home Office v. Dorset Yacht Co Ltd, [1970] UKHL 2 (BAILII) (§17.2.2) at para 9.
  22. ↑ Athey v. Leonati, 1996 CanLII 183 (SCC) (§17.4.1) at para 47.
  23. ↑ Athey v. Leonati, 1996 CanLII 183 (SCC) (§17.4.1) at para 36.
  24. ↑ Liang, Brent (4 Jan 2018). "Duty of Care: Defences". Just Torts – via SoundCloud.
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