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 Negligence 1. 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?