The Law of Negligence

What is a tort?

A tort is improper behaviour by one person that causes physical, emotional, or financial harm to another person. It can be intentional or unintentional (negligence).

Define negligence.

Negligence is failing to take reasonable care to avoid causing foreseeable harm to others.

List the 5 functions of tort law

• Compensate victims: Give money to the person who was hurt — make them “whole” again.

• Deter wrongdoing: People are less likely to act carelessly if they know they could be sued.

• Support criminal law: Civil lawsuits reinforce criminal penalties.
  Example: If someone assaults you (crime), you can also sue them for damages (tort).

• Educate society: Court decisions teach us what behaviour is acceptable (e.g., don’t serve alcohol to minors).

• Provide psychological relief (legal “revenge”): Allows people to get justice legally instead of taking revenge themselves.

What must a plaintiff prove to win a negligence case?

1. Duty of care

2. Breach of standard of care

3. Damage

4. Causation

What happens if one of the 4 elements of negligence is not proven?

The defendant is not liable. The plaintiff must prove all four.

What is a duty of care?

A responsibility to avoid causing unreasonable, foreseeable harm to people you can expect to be affected by your actions.

What is the "Neighbour Principle"?

You must avoid actions that can reasonably foreseeably harm people who are closely and directly affected by what you do.

What case established the neighbour principle?

Donoghue v. Stevenson (1932) — the “snail in the bottle” case.

What is the two-part test for Duty of Care?

• Reasonable foreseeability + proximity( close relationship)

• No policy reasons to deny the duty

What is the standard of care in negligence?

The behaviour a reasonable person would show in the same situation. Falling below this = negligence.

Is the reasonable person test subjective or objective?

Objective — it doesn’t matter what the defendant personally thought.

Name the 3 exceptions to the normal standard of care.

1. Special skills (professional standard)

2. Children (child standard)

3. Statutory standards (laws set the standard)

What kind of harm counts as damage in negligence?

Material (real) harm — not trivial or minor annoyances.

What must mental injury show to be recoverable?

More than normal stress; must be serious, prolonged, and medically recognized.

What is the “but for” test? (causation)

“But for the defendant’s actions, would the plaintiff still have been injured?”

If YES → no causation
If NO → causation proven

What happens when two defendants both cause harm?

Use the substantial factor test. If both significantly contributed → both are liable (usually jointly and severally).

What is remoteness in negligence?

Even if harm is caused, defendant is only liable for damage that is reasonably foreseeable

What is the Thin Skull Doctrine?

You must “take your victim as you find them.”
If their injuries are worse because of a pre-existing condition, the defendant still pays for all of it.

What are the 3 defenses to Negligence

Contributory Negligence, Volenti Non Fit Injuria, Mitigation of Damages

What is contributory negligence?

The plaintiff also acted carelessly → damages are reduced proportionally.

What is “volenti non fit injuria”?

“Voluntary assumption of risk.”
If someone willingly accepts a risk, they cannot sue for resulting harm. Complete defence.

What is mitigation of damages?

Plaintiff must try to minimize their losses. If they don’t, their damages may be reduced.