Negligence TORT LAW

Negligence

Involves inadvertent (non-

intentional), careless conduct
NEGLIGENCE
that causes injury or loss to
another

Important area of tort liability

for professionals: lawyers,
doctors, accountants,
architects and other
professionals another
 ELEMENTS OF NEGLIGENCE:
A,B,C & D

• To successfully sue in a negligence, you must prove 4 essential

elements (conjunctive requirements):
- A: A duty to exercise care
- B: Breach of the standard of care
- C: Causation - the act caused the injury
- D: Damages - victim suffered a loss
 Donoghue v. Stevenson [1932] AC 562
(HL)

Lord Atkin held that a general duty of

of care could be said to exist between
A: IS THERE two parties under the “neighbor
A DUTY OF principle”, described in this quote:
CARE • “You must take take reasonable care to avoid acts
or omissions which you can reasonably foresee
would likely to injure your neighbor. Who, then,
in law is my neighbor? 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 into question”.
 Anns v. Merton Burough Council
[1978] AC 728 (HL)

Established that the question of whether

A: IS THERE ANY a duty of care arises between the parties
REASON WHY THE must be approached in two stages now:
DUTY SHOULD BE
MODIFIED?
1. You apply the “reasonable foreseeability” test
established in Donoghue v. Stevenson.
2. If the application of the “reasonable
foreseeability test” determines that there is a duty
of of care owed by one party to another, then you
ask: Is there any reason to modify, reduce the
scope of or cancel that duty of care? If the
answer is a “NO” then the duty of care applies
and you go to the second element of the 4 part
test test: “Is the duty of care breached?”
• E.g. Pot holes on the streets
 DONOGHUE V.
STEVENSON DECISION
[1932] AC 562 (HL)

Donoghue v. Stevenson case

• On the 26 August, 1928, Donoghue and a friend were at a cafe in

Paisley, Scotland.

• Donoghue's friend ordered and paid for her drink- a ginger beer.

• The cafe they were at purchased the ginger beer from a distributor that

purchased it from a manufacturer called Stevenson.

• The ginger beer came in a dark bottle, and the contents were not

visible from the outside.

• Donoghue drank some of the contents and her friend lifted the bottle to

pour the remainder of the ginger beer into the glass.

• That is when they noticed, dropping out of the bottle and into the glass,

remains of a snail in a state of decomposition.

This Photo by Unknown Author is licensed under CC BY-NC-ND

 • Donoghue suffered a severe shock and later
complained of stomach pain and her doctor
diagnosed her as having gastroenteritis.
• Donoghue sued Stevenson, the manufacturer of the
drink, or negligence. She claimed 500 pounds in
damages.
D O N O G H U E V.
STEVENSON • Now, Donoghue could not sue Stevenson for breach
of contract, because her friend had purchased the
C O N T IN U E D drink for her.
• Instead, her lawyers argued that Stevenson, the
manufacturer, had breached a duty of care to his
consumers and had caused injury through negligence.
  At the time, a claim in negligence was untested.
v A manufacturer owed no duty of care to the consumer when
putting a product in the market unless the manufacturer had a
contractual relationship with the consumer or was aware that the
product was dangerous because of the defect and concealed the
defect from the consumer (fraud).

D O N O G H U E V. v  Donoghue, of course, could not show any contractual

relationship with Stevenson as she had not purchased the drink
STEVENSON from them.
C O N T IN U E D  • Stevenson's lawyers,  challenged Donoghue's action, on the
basis that no precedents existed for a claim in negligence. 
 • They referred to an earlier action by Donoghue's lawyer,
Mullen v. AG Barr, where a dead mouse was found in a bottle
of soft drink; judges in this case dismissed it because of a lack of
precedent.
 • Donoghue failed at trial and eventually, appealed the decision to
the House of Lords. Her  claim was successful.
 • HL affirmed that negligence is a tort. 
  In finding that manufacturers owed duty of care to
the end consumers of their products even where
there was not a contractual relationship, Lord
Atkin, in the HL stated:
"a manufacturer of products, which he
sells... to reach the ultimate consumer in the
form in which they left him... owes a duty to
the consumer to take reasonable care".
Lord Atkin went on to establish what is known as
the "neighbour principle":
DONOGHUE V.      "You must take reasonable care to avoid acts
STE VE NSON or omissions which you can reasonably foresee
would be likely to injure your neighbour. Who,
CONTINUED 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 to have
them in [mind] when I am [considering these]
acts or omissions."—This is where the
forseeability test comes into play.
 In summary:
• If a manufacturer is going to put its products
in the channels of commerce, then it owes a
duty of care to all end consumers of its product.
• End consumers are not always the purchasers.
You mom, dad, brother and sister may buy
D O N O G H U E V. things that you end up consuming often.
STEVENSON
• For example: Toyota recalled more than 10
C O N T IN U E D million vehicles after receiving claims that
the vehicles were accelerating unexpectedly.
Many incidents of sudden acceleration
occurred when floor mats were caught under
accelerator pedals. In others, the pedals
themselves may have been defective. If your
dad bought you one of those cars from a
Toyota dealer and you got into an accident
because of the defect, you would likely be
able to establish that Toyota owed you- end
cosumer- a duty of care.
 • 50 years after Donoghue v. Stevenson, in 1978,the HL, in the
case of Anns v. Merton Burough case, established a broader test
for establishing a duty of care.
• Often it is said that Anns case established a two-stage test for
establish whether duty of care exists.
ANNS V. • In Anns, the plaintiffs were tenants in a block of flats under a
MERTON 999year lease.
LONDON • The flats suffered from structural defects due to inadequate
foundations which were 2ft 6in deep instead of 3ft deep as
BUR OUGH required by the bylaws of the Burough.
COUNCIL [1978] • The defendant Merton Burough Council was responsible for
AC 728 (HL) inspecting the foundations during the construction of the flats.
Their inspector failed to properly inspect and the Plaintiffs
noticed cracks in the ceilings of the flat.
• Developer was likely long gone and the plaintiffs pursued the
Defendant, Merton Burough.
  The HL held that the defendant did owe a duty of care
to ensure the foundations were of the correct depth.
 Lord Wilberforce introduced a two -tage test for
imposing a duty of care:
 1. Is there a sufficient degree of
proximity/relationship between the parties -A and
B- such that, it is foreseeable to A that carelessness
on his part may likely cause injury/damage to B? If
yes then a duty of care arises. [This is the
ANNS CASE- Donoghue "foreseeability" test)
CONT INUE D  2. Is there any (public policy) reason why the court
should modify (or reduce or limit) the scope of that
duty?

For example: Potholes- There are countless potholes in

municipalities. It is foreseeable that, if potholes are left
unchecked, they may cause injury to drivers, cars, cyclists, and
pedestrians. But it is inefficient and not practical to hold
municipalities liable for each pothole as it is  impossible to
repair all potholes- manpower  constraints make it impossible to
repair all pot holes but budgetary constraints also make it
impossible ; could  bankrupt all including the richest
municipalities.
 • Misfeasance

• - An act that causes harm to another

(wrongdoing)
• - Court will provide remedy

• Nonfeasance

A DUTY TO EXERCISE
• - A failure to prevent an injury
CARE MUST EXIST • Courts reluctant to provide remedy
• Nonfeasance will lead to liability
only where you can show that a
party had a special relationship
with the victim where a duty of care
arose and the tortfeasor failed to act:
• E.g. Paramedic on duty; life guard
on duty; MichaelJackson’s personal
doctor on a retainer.
 No liability for emergency aid unless gross
negligence
1. A person who renders emergency medical
services or aid to an ill,
injured or unconscious person, at the
immediate scene of an accident or
emergency that has caused the illness, injury
or unconsciousness, is not
liable for damages for injury to or death of
GOOD that person caused by the
S A M A R ITA N person's act or omission in rendering the
A C T, R S B C [ 1 9 9 6] medical services or aid unless
C . 1 72
that person is grossly negligent.
Exceptions
2 Section 1 does not apply if the person
rendering the medical services or aid
(a) is employed expressly for that purpose, or
(b) does so with a view to gain.
 STANDARD OF CARE

• Circumstantial • Insurance to avoid

evidence may lead to Special standards risks of tort liability-
finding of may be set by statute- e.g. ICBC insurance;
negligence-e.g. e.g. Occupiers malpractice
Donoghue v. Liability Act, S. 3 insurance; D&O
Stevenson case insurance.
 B: BREACH OF THE
STANDARD OF CARE

Who is a reasonable
Once a duty of care is THEN ASK: Was there ASK: What would a person? S/he is a
found, and no policy a breach of the "reasonable person" prudent/careful
reason to modify or duty/standard of have done in the person, in possession
limit the duty of care care? circumstances? of all the relevant facts,
exercising care

  Such conduct  would

Reasonable person is
be considered conduct
NOT the average E.g. Reasonable person  E.g. Reasonable person
that is below socially
person; NOT the would not speed or text wouldn't  throw  a rock
acceptable standards
perfect person; its's a while driving in a crowded room
and a breach duty of
fiction.
care.
  • The greater the risk of injury the higher
the standard of care
 E.g. 2012 Case of tandem hand
gliding Pilot, Jon Orders, April 2012
failing to harness client properly before
B: BREACH OF the flight; if risk of injury great then
STANDARD OF correspondingly higher standard of care;
CARE…CONT. client fell to her death as a result of
carelessness of Orders; Orders plead
guilty in criminal court for negligence
causing death and sentenced to 5 months
in prison. Civil matter likely settled by
parents of deceased victim.
 What is the standard of conduct expected
of a professional?

B. BREACH OF
S TA N D A R D O F
CARE-
PROFESSIONALS
Professionals are required to have degrees
of expertise of a reasonable professional
in their field:
Reasonable
Reasonable
Reasonable Reasonable hand Reasonable
bus driver
doctor lawyer gliding accountant
etc
pilot;
 B . B R E A C H O F S TA ND A R D OF C A R E -
P R O F E S S I O N A L S - CO N T.

 Inexperience of a professional no defence; not a different standard for a junior lawyer, junior
doctor, junior dentist, junior architect….

 Standard practice of the profession may not be enough; taking short cuts because that is what
other lawyers/doctors/dentists do is not a defence.
 Prudent professional test not average professional.

 Professionals exercising special skills may also owe a duty of care for pure economic loss
suffered by a third-party; someone they have no contractual relationship with: . Haig v.
Bamford et al., [1977] 1 S.C.R. 466
 
 H A I G V. B A M F O R D E T A L . , [ 1 9 7 7 ] 1 S . C . R . 4 6 6 :
P R O F E S S I O N A L M AY O W E A D U T Y O F C A R E T O
T H I R D - PA R T I E S

 In Haig v. Bamford, an accounting firm negligently prepared financial statements for a company, knowing
that the statements would be used to encourage investors to invest in the co.
 Haig, relying on the incorrect financial statements. purchased a number of shares , but later found the co was
considerably less profitable than the incorrect financial statements had led him to believe. As a result he
suffered a financial loss and sued the accounting co.
 Ct. found that there was a duty of care owed by the accounting firm to Haig even though there was no direct
contractual relationship between Haig and the accounting firm, Bamford. The contractual relationship was
between the Co and Bamford only.
 Here the court did not adopt the reasonable foreseeability test developed in Donoghue v.Stevenson as that
was too broad in such cases. Instead the court ruled that liability will extend in such cases where when the
person making the misleading statement actually knew it was to be used/or relied on by an individual or a
class of people.
 Here Bamford was aware that potential investors would rely on it. They owed a duty of care to this class of
people (investors) of which Haig was one.
  After establishing duty of care breached NEXT
MUST SHOW that BREACH CAUSED INJURY
or DAMAGES.
 MUST SHOW NEXUS BETWEEN BREACH
AND INJURY/DAMAGES
 HOW DO YOU PROVE CAUSATION?
 2 steps to prove causation: Must show physical
C AND D: causation and legal causation.
C A U S AT I O N A N D
DAMAGE   Physical causation involves :"But for" test -
"but for" the conduct of the plaintiff, no injury
would have resulted.If answer yes- then you
have established physical causation.
 Legal Causation involves the Remoteness
test - Whether the specific type of injury
suffered was reasonably foreseeable (Legal
causation): Mustapha v. Culligan of Canada Ltd.,
2008 SCC 27, [2008] 2 SCR 114

C A N D D : C A U S AT I O N &
D A M A G E S : M U S T A P H A V.
CULLIGAN OF CANADA
LTD., 2008 SCC 27
 Mr. and Mrs. Mustapha were always
both concerned about their hygiene and
health, keeping their house clean at all
times. They heard that Culligan water
provided health benefits over city water.
They installed Culligan water
dispensers in both the salons and their
home. For 15 years they were loyal
customers of the brand.
 In November, 2001, while Mustapha
and his wife were replacing the water
dispenser at home, they spotted a dead
fly and part of another inside the new,
sealed Culligan water bottle.
 At the sight of the fly, Mrs. Mustapha
vomited immediately. Mr. Mustapha
became nauseous and suffered of
abdominal pains. From seeing the fly in
the water, he said he developed major
depressive disorder, phobia, and
anxiety.
  He  said the fly in the water ruined his life, even
wrecking his sex life. He said for months he could
not drink coffee made with water, and feared letting
the shower water hit his face directly. His regular
nightmares involved flies flying on top of feces.
 Mr. Mustapha demanded financial compensation for
  his psychiatric injury caused by Culligan’s
negligence in allowing the fly into the water bottle.
C AND D:  At trial, the Ontario Divisional Court found
Culligan liable in negligence, and awarded. Mr.
CAUSATION Mustapha with $80,000 in general damages,
$24,174.58 in special damages, and $237,600 for
AND loss of business.

DAMAGES:  Culligan was concerned about the precedent of

having to pay major financial compensation for
MUSTAPHA relatively minor lapses such as this. Other
customers might make similar claims for
AND extraordinary compensation on the basis of a fly in
the water, or even less.
CULLIGAN  Culligan appealed successfully to the Ontario Court

CONTINUED of Appeal, which overturned the trial decision on

the basis that Mr. Mustapha's reaction to the dead
fly was not reasonably foreseeable, and hence did
not give him a right to compensation. Appeal to
SCC by Mustapha was unsuccessful as SCC agreed
there should be no compensation paid by Culligan
to Mr. Mustapha.
  
• Unlike intentional torts, which may be
actionable without specific damage,
D: DAMAGES
negligence requires a loss to person or
property
- "No pain, no gain"
 DEFENCES TO NEGLIGENCE
Contributory
negligence
If plaintiff contributed to own loss, he/she
must bear some responsibility [e.g. Did not
wear a seatbelt in the accident]
Most jurisdictions have a Negligence Act
that allows courts to assign proportional
liability among plaintiff and defendants
• Negligence Act (BC)
• Apportionment of liability for damages
• 1 (1) If by the fault of 2 or more persons damage or loss
is caused to one or more of them, the
• liability to make good the damage or loss is in proportion
to the degree to which each person was at fault
 Voluntary assumption of risk also
known as Volenti non fit injuria.
  Persons who volunteer to enter a
situation where the risk of injury is
obvious; and accept the legal risk
that they are waiving their claim for
DEFENCES TO damages may not recover damages
NEGLIGENCE.. e.g. sky diving, frequently people
hurt their ankles on landing. Likely a
.CONT. disclaimer clause in contract as well;
 Remoteness [already discussed]

• Mustapha case
• Must determine whether the particular injury was reasonably
foreseeable.
• If connection between the conduct and injury was too indirect
or unexpected or remote, no liability will be imposed
• If legal causal connection is found, victims must be fully
D E FEN C ES TO compensated, even if more vulnerable to loss than usual: 
N EG L IG EN C E
( C O N TIN U ED )
Thin skull rule:

"you take your victim as you find him"- E.g.

MVA, "Too bad pregnant woman involved in the
accident who was constitutionally more
vulnerable than a huge weightlifter.
 PRODUCTS LIABILITY

 Must show defendant failed to live up to standard of reasonable

manufacturer  or service provider (be it car, electronics, food, legal or
accounting advice, car mechanic, etc).
 May use prima facie case of negligence (circumstantial evidence) [Snail
could only have gotten in the bottle at the bottling plant based on the
decomposed state].
 In some jurisdictions, manufacturer has increased liability through
statute.
 At C.L. need to establish all 4 elements - A,B,C & D – to successfully
advance a claim in negligence- Conjunctive requirements.