The Tort of Negligence 

What elements are involved in the tort of negligence? Let's learn about negligence and how it is handled in law. 

The Tort of Negligence - What happens? What are the elements in the tort of negligence?

Before we learn about the tort of negligence, let's first understand what a tort is. Basically, torts exist to compensate for harm arising from human interactions. According to Wikipedia, a tort is a civil wrong that causes someone to suffer loss or harm, resulting in legal liability for the person who commits the wrong. 

The tort of negligence arises from the combination of two things: 

Unreasonable behaviour + harm = law suit 

The tort of negligence is an unintentional tort which means that the harmful action happens as a mistake. The tort of negligence occurs when there has been careless or reckless action that results in injury to people or damage to property. To see more about how the tort of negligence works, let's examine its four elements and the sub-tests involved. 

4 Elements in the Tort of Negligence 

There are four main elements we examine in the tort of negligence: 

  • Duty of care 
  • Standard of care 
  • Causation 
  • Remoteness of damage 

These elements are pursued sequentially.

1. Was a Duty of Care Owed? 

We need to determine if a duty of care was owed in the first place. There are two tests used to determine this: 

Test 1- Relationship between the parties 

Negligence cases are based on a non-contractual relationship between the parties. Do the parties have a relationship that establishes a duty of care, such as a surgeon with a patient, or two drivers driving alongside each other on the road?

Test 2 - 'Neighbour principle' Foreseeability 

The Neighbour Principle for Forseeability is based on the concept that a person must take reasonable care to avoid acts or omissions which can be reasonably foreseen as being likely to injure ones neighbour. This test asks the question: Could I forsee this action as harming those to whom I have a duty of care? 

2. Standard of Care 

Once it is established that the defendant owes a duty of care to the claimant, the court must determine whether the defendant's actions have breached the standard of care. Here are four sub-tests used to determine standard of care: 

Test 1 - Reasonable person test 

The Reasonable person test is situation specific and considers what would be expected of an ordinary, reasonable and prudent person in the same circumstances. 

Test 2 - Risk 

The higher the risk associated with the activity, the higher the standard of care expected. For example, high risk activities like surgery or sky diving would increase standard of care.

Test 3 - Specialists

Specialists have a higher standard of care. If a person has received a considerable amount of training, you would have higher expectations of their ability to control the situation. 

Test 4 - Knowledge of outcome 

Knowledge of outcome will usually mean a higher standard of care. This test works hand-in-hand with the reasonable person test. Would a reasonable person still engage in such conduct with knowledge of the outcome? 

3. Causation

This aspect of the tort of negligence asks the question: Did the defendant's action cause the harm? 

Test - 'But for' test 

But-for-test: Erase the actor. Could there be no accident? The key test for causation is known as the 'but for' test, which basically asks whether the loss would have been sustained 'but for' the defendant's negligence. 

The but-for-test essentially looks for multiple causation. Are there other people involved? Did they contribute to negligence? We'll talk more about this below... 

4. Remoteness of damage 

The fourth element in the tort of negligence is remoteness of damage. Remoteness acts to limit liability. 

Test - Foreseeability Test 

Would the defendant's negligence cause these types of damages? 

When a court asks whether a harm was too 'remote', what is essentially being asked is whether the consequences of the negligent action were so far removed from it as to have been unforeseeable by the defendant.

Essentially, how far is the harm in a chain of events? 

Example: If Mike swung a golf ball that hit Darlene in the head, that caused her to hit Joe and make him spill his bucket of water on the floor, that caused Lucy to slip and elbow Joanne, that caused Joanne's cat to jump on Erica who is terribly allergic to cats, and she proceeds to faint...could the harm caused to Erica be too remote to blame Mike? Probably. 

Once damage is of a kind that is forseeable, the defendant is liable for the full extent of the damage no matter whether the extent of the damage is forseeble. This is known as the thin skull/eggshell rule. 

Thin Skull Rule - A wrongdoer must take his victim as he finds him. The unexpected frailty of the injured person (say a person with a hemophilia who may bleed excessively after injury) is not a valid defense to the seriousness of any injury caused to them. The thin skull rule applies after we determine that an injury is not too remote. 

Defences to Negligence Action

We've considered the four elements of the tort of negligence, now let's consider some defences that the defendant could claim: 

1. Contributory negligence 

Contributory negligence states that unreasonable conduct by the plaintiff (or victim) contributed to his/her injuries. Contributory negligence apportions damages according to the percentage that the plaintiff and defendant are each negligent. 

2. Voluntary Assumption of Risk a.k.a Volenti non fit injuria 

Volenti non fit injuria (Latin): "To a willing person, injury is not done." 

Volenti non fit injuria is a voluntary assumption of risk. It is a common law doctrine which states that if someone willingly places themeselves in a position where harm might result, they have no claim to negligence on someone else's part. 

Doing the activity itself is risky, and the plaintiff "consents" to the risk inherent in the event. 

This is a full defence to the tort of negligence. 

3. Explicit Waiver of Liability 

A user signs release forms, or by purchase/sign in of a good/service/ticket. For example, a waiver than you might sign at a trampoline park, formula 1 racing, bungee jumping, etc. 

This is a partial to full defence for negligence action. Note that waivers could be ripped up in the case of gross negligence. Negligence is failure to exercise reasonable care, but gross negligence is a conscious and voluntary disregard of the need to use reasonable care. It is extreme misconduct. 

Those are the elements and defences related to the Tort of Negligence in Canada. 

Read about the differences between torts (like the tort of negligence) and contracts here.

Related: Top Law Firm Interview Questions

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