What is civil negligence?

Learn about the elements of this cause of action

Civil negligence – as opposed to criminal negligence, a crime – is a category of tort. A tort is a common law cause of action.

Common law refers to the fact that Canada is part of the common law tradition. England developed its common law tradition over the past 1000 years, and tort law is a part of that tradition. The common law was received in all provinces other than Quebec.

Cause of action refers to the fact that a tort is a civil wrong for which the law recognizes a remedy. In other words, a tort is something that occurs that forms a basis for the victim to bring a lawsuit for compensation. Negligence is just one category of tort.

The tort of negligence was first recognized in the English case Donoghue v. Stevenson [1932] UKHL 100. The plaintiff had been drinking a glass of ginger beer in a café and, unbeknownst to her, it had a decomposed snail in it and she subsequently became ill. She sued the defendant ginger beer manufacturer and he was found liable because the relationship between the manufacturer and consumer was sufficiently proximate, he failed to ensure the product’s safety and it was reasonably foreseeable that this failure would lead to harm to consumers.

The tort of negligence is composed of three elements all of which must be proven to be successful. They are: the negligent act, causation and damage. The negligent act consists of the defendant’s conduct falling short of the appropriate standard of care. Causation is established by showing a link between the defendant’s negligent act and the plaintiff’s damage. Damage is the vital element that triggers the claim and launches the litigation process.

  • The negligent act

The standard of care against which the defendant’s conduct is measured in negligence cases is that of the reasonably careful person in the circumstances of the defendant: Vaughn v. Menlove (1837) 132 ER 490 (CP). Factors that the court considers in determining the standard of care include:

  1. foreseeable risk
  2. likelihood of damage
  3. seriousness of the threatened harm
  4. cost of preventive measures
  5. utility of the defendant’s conduct
  6. emergency situations
  7. custom and approved practice
  8. post-accident precautions
  9. judicial policy
  10. economic analysis
  11. the equity of the case
  12. hindsight bias

In certain situations, the standard is either lowered (for example, if the defendant has a disability) or elevated (for example, if the defendant has superior knowledge and skill).

  • Causation

The conventional test for causation (or cause-in-fact) is the but-for test. Ask, ‘Would the plaintiff’s damage have occurred but for the defendant’s negligence?’ If no, the defendant’s negligence is a cause-in-fact of the damage. If yes, indicating that the damage would have occurred whether or not the defendant was negligent, his negligence is not a cause-in-fact: Snell v. Farrell, [1990] 2 SCR 311. If it is scientifically impossible to prove causation using this test, the material contribution test applies: Did the defendant’s negligent act materially contribute to the risk of harm? Resurfice Corp v. Hanke, [2007] 1 SCR 333.

  • Damage

It is axiomatic that no liability can arise in negligence unless the plaintiff suffers damage as a result of the defendant’s wrongful act. There is little authority on the seriousness of harm to satisfy this requirement since the cost of the process excludes many minor claims.

If a plaintiff proves the elements of negligence, is that enough to secure compensation from the defendant? Not necessarily

Gain an understanding of other legal factors that are considered in a negligence lawsuit aside from proof of the elements

In order to keep negligence liability within appropriate boundaries, the courts have developed certain control devices.

  • Duty of care

There must be a legal finding that the defendant owed the plaintiff a duty of care. The two-stage test for duty of care is set out in Cooper v. Hobart, [2001] 3 SCR 537:

  • Is there a prima facie duty of care? If a posited duty falls within a recognized category, a prima facie duty of care is owed. If it is novel, the question then becomes whether a new duty of care should be recognized in the circumstances. Foreseeability of damage is not enough. The plaintiff must show proximity – that the defendant was in a close and direct relationship to him/her such that it is just to impose a duty of care in the circumstances. The factors which may satisfy the requirement of proximity are diverse and depend on the circumstances of the case. They must be grounded in the governing statute if there is one.
  • If the plaintiff is successful in establishing a prima facie duty of care, the question at the second stage of the analysis is whether there exist residual policy considerations which justify denying liability. These are not concerned with the relationship between the parties, but with the effect of recognizing a duty of care on other legal obligations, the legal system and society more generally.
  • Remoteness of damage

Another control device is remoteness of damage: the defendant is not liable for remote consequences of a negligent act. The test for the remoteness rule is reasonable foreseeability: Overseas Tankship (UK) Ltd. v. Morts Dock and Engineering Co. Ltd., [1961] 1 All 404 commonly known as Wagon Mound (No. 1). It is not necessary to foresee the mechanics of the accident: Hughes v. Lord Advocate, [1963] UKHL 31. However, the defendant must foresee that the damage was a possible consequence of the negligent act: Wagon Mound No. 2. A common technique is to describe the causal sequence into a number of discrete steps, each of which is a readily foreseeable consequence of the preceding step.

  • Legal defenses to negligence

Even if the plaintiff proves that the defendant was negligent, the defendant may have a defense. Here are four defenses.

  1. Contributory negligence

Contributory negligence is the failure of the plaintiff to take reasonable care for his/her own safety which contributes to the accident or his/her loss.

  1. Voluntary assumption of risk (in Latin, ‘volenti non fit injuria’)

This defense arises where a plaintiff has indicated that he/she consents to the risk of harm generated by the defendant’s negligence (for example, in an exemption clause).

  1. Illegality (in Latin, ‘lex turpi causa non oritur actio’)

This defense is based on the principle that plaintiffs who are involved in illegal conduct when they suffer damage should not be permitted to pursue a remedy.

  1. Inevitable accident

This defense applies where the defendant’s act was accidental, meaning it was not intended and, under all the circumstances, could not have been foreseen or prevented by reasonable precautions.