A. The centrality of the tort of negligence

In the twentieth century the tort of negligence blossomed into the dominant field of tort liability. Virtually all activities that carry a risk of personal injury or property damage are now subject to the general duty of care, and the courts continue to expand liability to new interests, activities, and losses. The dominance of the tort of negligence is also indicated by the extent of the intrusion of fault concepts into other areas of tort law. The strict liability torts have, for example, been heavily diluted by fault concepts, most notably in the definition of non- natural use in the rule in Rylands v. Fletcher, [Note 1: 1 (1868), L.R. 3 H.L. 330, aff'g (sub nom. Fletcher v. Rylands) (1866), L.R. 1 Ex. 265 (Ex. Ch.).] the requirement of a loss of control of the animal in the scienter action, and in the interpretation of the defences. The torts of trespass to person, chattels, and land have been transformed from torts of strict liability to torts requiring proof of wrongdoing. The tort of nuisance exhibits some characteristics of fault liability. This is most apparent in the principles controlling the responsibility of a landowner for a private nuisance created by a third party, the remoteness of damage rule (foreseeability), and the uneven trend towards fault in respect of personal injuries caused by a public nuisance on the highway. Some areas of tort law, such as defamation, have withstood the rising tide of fault liability. Nevertheless, the twentieth century was the century of the tort of negligence and its influence will be felt long into the twenty-first century.

CHAPTER 9, CONCLUSION: THE CANADIAN LAW OF TORTS IN THE TWENTY-FIRST CENTURY

B. The dynamism of the tort of negligence

The dominance of the tort of negligence is due, in part, to the expansionary forces unleashed by Donoghue v. Stevenson, [Note 2: M'Alister (or Donoghue) v. Stevenson, [1932] A.C. 562 (H.L.) [Donoghue].] Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd., [Note 3: [1964] A.C. 465 (H.L.).] and Anns v. Merton London Borough Council. [Note 4: [1978] A.C. 728 (H.L.).] No other area of Canadian tort law has displayed the vitality of negligence law and there is little evidence to suggest that its capacity for growth is spent. Further growth in the amount of litigation and the scope of liability may be expected in a number of areas.

First, there will be cutting edge cases in areas such as product design, governmental services, educational services, crime prevention, business activities and health care. The recent history of the tort of negligence has been one of incremental expansion and that is likely to be its foreseeable future. There are also a number of current activities, that have not felt the full impact of negligence liability. The extent of the responsibility of many persons such as religious leaders, mediators, counsellors, therapists, adoption counsellors, and computer technicians and service providers has yet to be tested.

Second, current litigation in respect of prenatal injuries and defective medical products such as breast implants and heart valves may herald a substantial increase in negligence liability in the general area of biotechnology, including medicine and genetic engineering. At the frontiers of medical science there are special risks and the potential for mass disasters. The tort principles relating to professional liability, products liability, prenatal injuries, and wrongful birth may foster further extensions of negligence liability in this area.

Third, there is likely to be an increase in mass "toxic tort" claims arising from injuries and illness caused by chemical compounds, toxic products, and environmental pollution. There has been more experience of these claims in the United States. The victims of asbestos, Agent Orange, radiation, tobacco, defective pharmaceuticals, and environmental pollution have all turned to the American courts to seek compensation. The Canadian tort system is protected from some of these claims by the Workers' Compensation schemes and the lack of strict liability for defective products. Nevertheless, Canada is not immune to toxic disasters, and the greater availability of modern class actions facilitates mass claims. Potential claimants include not only those persons who suffer illness or injury from exposure to toxic compounds but also exposed persons who must undergo periodic medical testing to check for the onset of illness and those who suffer from disease phobia from the fear of future illness. The extent of liability will depend, in part, upon the willingness of courts to rework causation and burden of proof principles in favour of plaintiffs and the future judicial evaluation of commercial and industrial practices in respect of the design, manufacture, handling, and storage of toxic elements and products. [Note 5: For some of the current difficulties, see Guimond Estate v. Fiberglas Canada Inc. (1999), 207 N.B.R. (2d) 355 (S.C.T.D.), aff'd [1999] N.B.J. No. 525 (C.A.) (QL) (allegations of illness arising from the use of styrene in the fiberglass boat-building industry).]

Fourth, there is likely to be a substantial growth in respect of liability for the gathering, evaluation, and communication of information. The importance of accurate information is already recognized by the liability for economic loss caused by negligent misrepresentations. One area of substantial growth is in the obligation to volunteer beneficial information for the advantage of others. The source of this possible expansion is found in the combination of duties to provide accurate information with the burgeoning duties of affirmative action and the growth of fiduciary duties, both of which erode the nonfeasance immunity and require persons to act in the interests of others with whom they have a special relationship. The convergence of these several principles suggests a more extensive responsibility for volunteering beneficial information to assist those with whom one has a personal, professional, or business relationship.

CHAPTER 9, CONCLUSION: THE CANADIAN LAW OF TORTS IN THE TWENTY-FIRST CENTURY