NEGLIGENCE

Law 12 – MUNDY 2011

Negligence

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

Negligence is a major area of tort law It is defined as:

unintentional action 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 loss

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)

Foreseeability

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 action?”

Determines fault or liability (and to what degree)

Causation

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)

Causation

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 plaintiff

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 Negligence1. Does the defendant owe the plaintiff a duty

of care?2. Did the defendant breach the standard of

care?3. Did the defendant’s careless act cause the

plaintiff’s injury or loss?4. Was there a direct connection between the

defendant’s action and the plaintiff’s injury or loss? Was what happened foreseeable?

5. Did the plaintiff suffer actual harm or loss?