Negligence

1. Negligence Law 12 – MUNDY 2011

2. 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

3. 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).

4. 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.

5. Elements of Negligence • Plaintiff is owed a duty of care • Defendant breached duty of care • Plaintiff suffered resulting harm or loss

6. 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

7. 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

8. 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

9. 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)

10. 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)

11. 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)

12. 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

13. 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

14. Summary: Proof of Negligence • Does the defendant owe the plaintiff a duty of care? • Did the defendant breach the standard of care? • Did the defendant’s careless act cause the plaintiff’s injury or loss? • Was there a direct connection between the defendant’s action and the plaintiff’s injury or loss? Was what happened foreseeable? • Did the plaintiff suffer actual harm or loss?