negligence law 12 – mundy 2011. negligence tort law is based on mostly case precedents and...
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NEGLIGENCE
Law 12 – MUNDY 2011
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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
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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).
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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.
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Elements of Negligence
Plaintiff is owed a duty of care
Defendant breached duty of care
Plaintiff suffered resulting harm or loss
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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
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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
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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
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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)
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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)
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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)
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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
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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
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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?