Canadian Tort Law/Negligence

Introduction

Perhaps no development in common law has had quite as great an impact as the case ofDonoghue v. Stevenson, [1932] A.C. 562. In this, a woman from Glasgow became ill after drinking an opaque bottle of ginger beer. She claimed that the remains of a decomposed snail were found in the bottle. She sued the bottling company.

Before this case, the idea that a plaintiff could sue someone with whom one had no contract and who had not directly committed the harm to the victim was not recognized in common law. However, in this decision of the House of Lords, Lord Atkin set out the principle, known as the "Neighbour Principle" or the "Duty of Care":

At present I content myself with pointing out that in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. The liability for negligence, whether you style it such or treat it as in other systems as a species of culpa, is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour ? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour ? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

Donoghue v. Stevenson, [1932] A.C. 562 at 580.

Duty of care

There can be no legal accountability of a person's actions without a duty being imposed upon them. As first established in Donoghue v. Stevenson, an obligation can be imposed upon people whose actions can foreseeably harm others.

Established Duties

Reliance

Reasonable reliance, refers to when individuals refer to the information provided by professionals for another purpose. In those cases, the fiduciary duty set for a professional is limited in that the information provided was not used for what was intended by the professional, even if it caused harm and was wrong.

Standard of care

All negligent tort actions focus on the issue what the standard of care was and whether the defendant fell below that standard. The standard is judged in relation to the "reasonable person" and whether the defendant acted in the same manner as any rational person in society would.

This standard is very ephemeral and does not provide a clear or objective criteria for judging. The standard changes depending on the assumed knowledge and experience of the defendant; for example, a professional will be held to a higher level than a normal person.

Moreover the level of risk involved plays a major role in establishing the standard of care. The likelihood of harm resulting from the actions as well as the level of forseeability of harm are taken into account. In Bolton v. Stone H.L. [1951] the defendant was playing cricket and hit to ball out into the stands where it hit the plaintiff. The judge ruled that since the ball had only been hit that far about six times in 30 years there was very little likelihood of it happening, meaning the risk was very low, thus could not attribute negligence.

Causation

As with each other element of a tort, causation must be shown for a successful action. The Supreme Court in Snell v. Farrell (1990) described causation as "an expression of the relationship that must be found to exist between the tortious act of the wrongdoer and the injury to the victim in order to justify compensation of the latter out of the pocket of the former."

Remoteness - Limits to Liability

The remoteness factor - sometimes called proximate cause - in a tort action is said to be the most confusing and inconsistent of all. The case law has a very spotty history and is known for not always being consistently applied.

Type of injury

Physical Harm Emotional Harm Psychiatric Harm Economic Loss - Pure Economic Loss - Consequential Economic Loss - Relational Economic Loss

Defenses

Further Readings

• Donoghue v. Stevenson, [1932] A.C. 562