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Tort Law Negligence Notes

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This is an extract of our Tort Law Negligence document, which we sell as part of our Torts Notes collection written by the top tier of University Of Victoria; University Of Toronto students.

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Negligence Flow Chart 1) Is there an existing Duty of Care?
a. Does the case fall into an existing category?
i. existing categories> if yes, then DoC applies, proceed to p. 6:
-physical harm to property or ppl: (Donoghue, Dorset, Kamloops)
-affirmative action (can include non-feasance, Crocker, Childs)
-rescuers (Horsely)
-duty to warn: manufacturers (Dow); doctors (Reibl)
-psych harm (ltd in application > Mustapha, Devji)
-pure economic loss: neg misrep; neg service; dangerous products; rel economic loss; govt liability (Hedley, Hercules)
-no single or unifying characteristic> each new rels must be examined on its own ii.

If no: proceed to step 2

2) Addressing novel claims: (Anns/Kamloops/Cooper)

1. Is there a sufficiently close relationship bw the parties?
a. Reasonable forseeability: is it conceivable to D that their conduct could harm P?
-Donoghue: neighbor principle: reasonable care to avoid harm that is reasonably foreseeable
- Palsgraf, Home Office: DoC found beyond traditional rels, based on foreseeability of harm b. Proximity: factual closeness; acts as a limiting principle i. Is there a sufficient proximity bw the P and D to impose a DoC?
-relational proximity> Donoghue: neighbor> persons directly affected by act that they are reasonably w/in contemplation of D
-social, circumstantial, causal, proximity
-other factors: representations made, expectation and reliance, existence of stautrory obligations (Odhavji) ii. Are there any micro policy concerns relating to proximity/rels that suggest limiting the recognition of DoC?

2. Are there any macro policy concerns to suggest limiting finding of DoC?
-analysis of the effect on the legal system and society in general (not concerning rels bw parties)
-is govt acting judicially? (scope of duty)
-is an insurance scheme created where one is not warranted? (scope of DMs)
-is there a high cost (scope of DMs)?
-would indeterminate liability be created? (floodgates concerns; relates to scope of class of persons owed DoC)
-is there frustration of parliamentary intent?
-is there any relevant statutory concerns?
-is there denial of essential public services?


-is another field of law more appropriate resolution to the matter? Is there already an est legal remedy?
-is there a lack of evidence?
3) Is the Standard of Care breached?
-what would a reasonably prudent person do in similar circumstances?
a. Potential Limiting Factors: i. Probability of Harm
-risk must be probable, not possible (Bolton)
-greater the risk associated; the higher the standard (Bolton) ii. Severity of Harm
-the greater the potential harm associated with risk; greater the standard (Paris) iii. Cost of Risk Avoidance/ Remedial Measures
-assessed on what steps reasonable person would take knowing gravity of consequences and P's circumstances: failure to take precautionary measures to avoid injury may be unreasonable where the risk harmed to P is serious (Paris)
-learned hand formula: if probability of harm and seriousness of loss outweigh cost of remedial measures, then failure to adopt measures will be seen as breach of SoC (Rentway) iv. Social Utility/Value of Conduct

1. D may be excused if the value of actions are socially important>
e.g. emergency situation> lower standard (Watt) b. Assessment of Reasonableness that Informs SoC:
- objective analysis: reasonably prudent person in D's field of trade (but does not take D's subjective qualities into account)
-is context contingent (Warren)
-the following indices inform but do not solely determine SoC: i. custom of trade:
-typically used by Ds to attempt to negate SoC
- informs SoC> to apply it must be reasonable, apply to the context (Warren)
-likewise, failure to meet does not = breach if circumstances where unusual, custom is inconsistent, uncommonly used or unreasonable >
(Brown; Warren; Waldick) ii. statutory standards:
-P must show that i) D violated statute; ii) statute applies (both thru scope of persons and context/accident) (Gorris)
-standard must be reasonable to apply (Sask Wheat)
-compliance w/statute will likely only negate liability if statute is specific, not general (Ryan) iii. professional standards:
-higher standard is applied to those advertising as having a special skill


-lawyers: need only act in accordance w/general practice unless practice is inconsistent w/prudent precautions against a known risk (Brenner); only liable for unreasonable mistakes (Folland)
-doctors: a reasonable; prudent and diligent doctor in the same area of specialization; if professional standard is unreasonable or fraught w/risks, D is held to higher SoC (Ter Neuzen) c. Special Standards of Care:
-modified objective standard: reasonable person in D's circumstance i. Children
-mixed 2 part test: (Heisler) i) determine if child is capable of negligence based on their age, capacity, etc. (subjective) ii) assess if child was negligent and to what degree based on comparison if D exercised the same care expected of a kid of that age/ intelligence/ experience (objective)?
-if undertaking an adult activity, they will be held to an adult standard (Pope; Nespolon) ii. Mentally ill
-held to the standard of a reasonable person with that same disability
-strict liability does not apply (Fiala)
-to negate liability, D must show they lacked either: (Fiala) 1) capacity to understand DOC owed 2) volition- no control over their actions 4) Causation
-did D's breach of SoC actually cause the loss (DMs)?
-factual causation> bw D's conduct and P's injury (objective)
-legal causation> addresses remoteness and proximity; limits factual causation a. But For Causation:
-traditional approach
-if harm would have occurred despite D's actions, causation not est
-BoP rests w/P (Snell)
-need only be de minimis range; not ltd by non-tortious acts (Athey) b. Exceptions- Causal Indeterminacy (when but-for does not apply): i. Inferring causation:
-causation can be inferred when there is an absence of evidence by D (but does not shift BoP) (Snell) ii. Material contribution test:
-in instance of evidentiary gap, where it is impossible to determine on the evidence if it was actually the D's conduct or some other factor (Walker Estate)
-applies if D contributed to harm, played a role outside de minimus range


iii. Multiple wrongdoers:
-where it is unclear which D caused harm, cts will apportion liability (Cook)
-BoP shifts to D

c. Legal Causation: Remoteness of DM
-is the consequence reasonably foreseeable?
-D is only liable for DMs which were reasonably forseeable (Wagon Mound) and those which have a -proximate connection bw negligence and DM
-concerns facts of particular case
-acts as a way of limiting expansive DoC
-often assessed based on judicial policy, institution (Osbourne)
-factors: foreseeability, probability, seriousness, degree, financial status of parties (Klar)
- possibility: looking at sequences of events; ask was each step foreseeable (Assiniboine School)
-type of injury need only by foreseen, not extent of DM or exact manner of occurrence (Hoffer, Hughes, Saanich, Assinboine, Lauritzen)
-exception to remoteness: thin skull rule:
-as long as SOME physical injury to P was foreseeable, D is liable for all consequences arising from P's unique physical/psychological makeup (Bishop)
-exception> psychiatric harm: assumed reasonable fortitude (Mustapha)
-crumbling skull rule:
-opposite of thin skull, asserts remoteness in assessment of DMs (does not negate liability)
-goal is to unjustly enrich P but only return them to original position
-assume thin skull, D may refute w/crumbling skull> must prove high degree of inevitability of DM based on already manifested injury, that DM would have occurred independent of D's negligence (Athey)
-intervening can serve to negate liability of original act if it was not reasonably foreseeable; if it is not w/in risk of 1st act (Bradford)
-ct is wary of applying (Smith, Goodware, Stansbie)
-typically used to apportion DMs, not excuse liability 5) Defences
-focus is on Ps conduct that may limit or exclude Ds liability
-cts typically very wary of complete defenses (VAR, illegality) and prefer contrib negallows apportionment according to fault, based on desire for deterrence i. contributory negligence
-P is partially responsible for their injuries:
-P caused accident
-P put themselves in way of D's foreseeable harm
-P failed to take protective measures
- results in apportionment of DMs bw P and D
-arbitrary, lenient bc of lack of 1st party insurance

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