General

"The rule that you are to love your neighbour becomes in law, you must not injure your neighbour. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour." (Donoghue vs. Stevenson, 1932)

Careless conduct that causes loss to another (note the intentional absence of the word intention or intentional!).

Negligence is the most common and arguably the most important field of tort law as it governs most activities of modern society.

In a nutshell, to establish negligence, you have to show the "ABCs" of negligence: (a) a duty of care must exist between the person injured and the person responsible for that injury; (b) conduct of the defendant fell short of that duty of care; and (c) resultant damages.

Standard of Care: The "Reasonable Man"

"Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. The defendants might have been liable for negligence, if, unintentionally, they omitted to do that which a reasonable person would have done, or did that which a person taking reasonable precautions would not have done." (Blyth v. Birmingham Water Works)

So the law judges all persons according to one standard.

[• For more on this, see Lloyd Duhaime, The Reasonable Man - Law's Ghost God.]

It matters not if the defendant is not a rocket scientist.

It is said that the law "does not attempt to see men as God sees them" but, instead, expects all to act a a reasonably intelligent person "who makes prudence a guide to his conduct."

The Court is not allowed to superimpose his or her standards upon a given situation, complete with the individual judge's weaknesses and biases.

Instead, the judge must superimpose the standard of the reasonable man.

That is why, in negligence cases which go before a jury, the judge cannot tell the jury to ask themselves if "they would have acted differently," but "how would the reasonable person have acted."

Obviously, the standard of this mythical reasonable person is somewhat intangible. But, as was said in Carlson v. Chochinov (1947):

"The ideal of that person exists only in the minds of men, and exists in different forms in the minds of different men. The standard is therefore far from fixed as stable. But it is the best all-round guide that the law can devise."

This principle of reasonableness extends itself to factual situations.

For example, we are not expected to foresee all the possible risks associated with any activity. Most everyday things that we do come with a small risk of harm to others.

In a 1951 English case, Bolton v. Stone, a cricket ball was hit off a cricket field and struck a pedestrian. The evidence showed that a cricket ball had only been hit off the field six times in the past 30 years and, in the 90 year history of the club, no one had ever been hurt by a cricket ball being sent over the fence during the course of a match. The judge wrote:

"People must guard against reasonable probabilities, but they are not bound against fantastic possibilities."

The more dangerous the activity to others, the higher the expectations on a person to foresee risk to others.

Compliance with customs, such as professional customs, generally will exonerate a defendant as it provides excellent proof of what is "reasonable" conduct.

But, beware: judges are fully enabled to find a custom as lacking in providing reasonable care and, therefore, so would the conduct that may have been guided by that custom.

Law teachers or legal theorists sometimes simplify the theory of negligence by referring to an "ABC" rule:

A - a duty of care must exist between the person injured and the person responsible for that injury;

B - conduct of the defendant fell short of that duty of care; and

C - resultant damages.

For a plaintiff in a negligence action, this would translate into this litigation plan:

1. Establish duty of care;

2. Prove that the standard has been breached by the defendant; and

3. Prove that the Plaintiff has been harmed and that the harm flows from the defendant’s breach.

Mix carefully before a Court and voila – a successful negligence action, remembering the guiding principle as stated by Lord Kenneth Diplock in Doughty v Turner Manufacturing Company Ltd.:

"There is no room today for mystique in the law of negligence. It is the application of common morality and common sense to the activities of the common man."

Gross Negligence

Gross negligence is when a person shows unrestrained disregard of consequences; where ordinary care is not taken in circumstances where, as a result, injury or grave damage is likely.

For gross negligence, the spectre of criminal prosecution is raised. The Canadian Criminal Code calls it criminal negligence and defines it as follows (at ¶219):

"Every one is criminally negligent who in doing anything, or in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons."

REFERENCES: