NEGLIGENCE Notes

Plaintiff must prove

(a) A duty of care is owed to the plaintiff by the defendant
(b) There was a breach of the duty
(c) The breach of duty caused injury to the plaintiff
(d) There is injury to the plaintiff of a kind recognized by
the court.
(a) Duty of care

(i) The first test is would the reasonable person have foreseen that
the act or omission of the plaintiff would cause injur to the
defendant! If the answer is no there is no breach of the duty
of care. If the answer is yes a second test is applied.

(ii) The second test is" even if a reasonable person would have
foreseen harm to the plaintiff caused b the defendant#s act or
omission" does the court" as a matter of polic" reco$ni%e liabilit
for the injur caused b the defendant#s act or omission!
The latter test is &nown as the '(nns test) as the *upreme Court of
Canada followed the reaonin$ of the +ouse of Lords in the En$lish
case of Anns v. London Borough of Merton,
!or e"a#ple a stranger #ay see a two$year$old child face down
in half a #etre of water but decide he does not ha%e ti#e to
rescue the child. If the child drowns because of the stranger&s
failure to act' the latter is not liable for the child&s death. (hile
the death #ay be a reasonably foreseeable result of inaction'
the stranger has no legal duty to act.
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)ee a co#petitor har#ing a business
(b) *reach of duty
.easonable person test
(i) Was there a there a risk or danger that defendants act or
omission would cause harm to the plaintiff?
I/ N0" N0 C(1*E 0/ (CTI0N
I/ 2E*" G0 T0 *TEP (ii)
(ii) Was there anything the defendant could have done to prevent
or avoid the harm to the plaintiff?
I/ N0" N0 C(1*E 0/ (CTI0N
I/ 2E*" G0 T0 *TEP (iii),
(iii) Weighing the magnitude of the risk to the plaintiff against
the magnitude of the burden on the defendant necessary to
prevent the harm to the plaintiff was it reasonable to reuire
the defendant to avoid or prevent the harm to the plaintiff?
The standard of care is that of the reasonable person in the
circumstances, *o the dan$er is one that the reasonable person
would have foreseen, +owever" the courts will ta&e into account
the e3pertise of a profession or callin$ in determinin$ what is
reasonable, *o a sur$eon must foresee the ris&s foreseeable b a
reasonable sur$eon even if she lac&s the s&ill and &nowled$e that
would enable the reasonable sur$eon to foresee the ris&s,
The ma$nitude of a ris& is measured b the combined wei$ht of the
probabilit of the ris& materiali%in$ and the seriousness of the
conse4uences if the ris& does materiali%e,
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If a defendant would have to bear an unreasonabl lar$e burden to
prevent a miniscule ris& of harm to the plaintiff" there will be no
breach of le$al dut of care,
(c) +ausation

6ut for) test .emoteness
Pro3imit
(d) Da#age

Courts must reco$ni%e sustained dama$e as compensable
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