1. CHAPTER 12: NEGLIGENCE THE BASICS Emond Montgomery Publications 1

2. Learning Outcomes Explain the three pillars of liability in negligence: wrongful conduct, causation, and harm. Understand the concept of duty of care and list factors that establish a duty of care. Describe the concept of standard of care, including the “reasonable person” test. Explain cause in fact and distinguish it from cause in law. Describe how courts determine and assign liability for harm with multiple causes. List categories of compensable harm. Emond Montgomery Publications 2

3. Introduction Negligence: a tort based on careless conduct or conduct that creates a reasonably foreseeable risk of harm A defendant can be found liable for negligence if the following elements are established: 1. Wrongful conduct on the part of the defendant 2. A causal connection between the defendant’s conduct and the harm to the plaintiff 3. Measurable harm to the plaintiff Emond Montgomery Publications 3

4. The First Element: Wrongful Conduct WHAT MAKES CONDUCT WRONG? A finding that a person was negligent requires a finding that he was required to take at least some degree of care in his actions and did not Emond Montgomery Publications 4

5. The First Element: Wrongful Conduct (cont’d) DUTY OF CARE The legal obligation to exercise care in favour of a plaintiff and his or her interest First established in the case of Donoghue v. Stevenson, [1932] All E.R. Rep. 1 To establish a duty of care, the plaintiff must prove 1. That it was reasonably foreseeable that the defendant’s actions could cause harm to a person or property 2. That, at the time of the action, a person or property was sufficiently proximate to the defendant to suffer harm Emond Montgomery Publications 5

6. The First Element: Wrongful Conduct (cont’d) DUTY OF CARE (cont’d) Seminal case for the development of modern negligence law: Donoghue v. Stevenson, [1932] All E.R. Rep. 1 Anns v. Merton London Borough Council and Edwards v. Law Society of British Columbia have developed a three-step test for the duty of care: 1. Does the relationship between the plaintiff and defendant fall into a recognized category of the duty of care? If not: 2. Are the parties sufficiently proximate that harm would be foreseeable? 3. Are there public policy reasons not to impose a duty of care? Emond Montgomery Publications 6

7. The First Element: Wrongful Conduct (cont’d) BREACH OF A DUTY OF CARE Once the plaintiff has established that she was owed a duty of care, she must show that the duty was breached – i.e., it fell short of the standard of care The standard of care is a way to describe how well, how carefully, or how thoroughly a person discharged his duty of care In general, the standard of care is met if the defendant took reasonable steps to avoid harm to the plaintiff Emond Montgomery Publications 7

8. The First Element: Wrongful Conduct (cont’d) BREACH OF A DUTY OF CARE (cont’d) The case law does not set out specific content for reasonable or unreasonable behaviour Characteristics of the “reasonable person”: Has reasonable skill in what he or she does Has ordinary intelligence Acts with reasonable prudence, but Is not perfect The standard of care may be higher or lower depending on the activity the defendant is engaged in Emond Montgomery Publications 8

9. The First Element: Wrongful Conduct (cont’d) BREACH OF THE DUTY OF CARE (cont’d) If the defendant’s activity is unusually dangerous, the court will apply the modified reasonable person test: Reasonableness in dangerous situations involves taking extreme care even when there are high costs to ensuring safety Defendants who are experts are held to the standard of a “reasonable expert” A reasonable expert is a person who is reasonably competent in the work in which he or she professes expertise Minors or persons with impairment may be held to the standard of a reasonable minor or person with impairment Emond Montgomery Publications 9

10. The Second Element: Causation Two types of causation: 1. Cause in fact – the factual link between one person’s actions and another person’s harm 2. Cause in law – the proximity or remoteness of one person’s actions in causing another person’s harm CAUSE IN FACT Apply the “but-for” test The defendant’s actions need not be the sole cause but must be an essential factor Emond Montgomery Publications 10

11. The Second Element: Causation (cont’d) CAUSE IN LAW Were the defendant’s actions too remote? Are there public policy considerations that limit liability? Determining the causation is not always simple … Emond Montgomery Publications 11

12. The Second Factor: Causation (cont’d) Courts have termed some causation issues as “complex causation”: Causation involving multiple causative factors including possible contributory negligence on the part of the plaintiff and/or conditions not caused by the plaintiff or defendant Athey v. Leonati (1996) framework for complex causation cases: 1. Apply the but-for test 2. Address the multiple causes 3. Each defendant is liable for the injuries caused by that defendant 4. Apply the “thin skull” rule 5. The defendant is liable only for the injuries that result from the defendant’s negligence Emond Montgomery Publications 12

13. The Third Element: Harm Plaintiff must be able to prove that he suffered from a recognized category of harm The plaintiff can call objective evidence to prove the harm that is the basis for the negligence claim As a general rule, the defendant is liable for whatever degree of harm his actions caused, whether or not he could foresee the harm It does not matter if the harm suffered is different than the harm expected It does not matter if the harm suffered is greater than the harm expected Emond Montgomery Publications 13

14. Proving Negligence: A Review To succeed in a claim of negligence, the plaintiff must show: 1. That a duty of care exists and it was breached 2. Causation, and 3. Harm The defendant will attempt to: 1. Refute the plaintiff’s evidence by calling evidence that tends to show that the plaintiff cannot prove the 3 elements of negligence 2. Prove a defence Emond Montgomery Publications 14