A. Introduction

The tort of negligence is composed of a number of components or elements, most of which must be proved by the plaintiff. These elements are not all self-evident. They are conventional concepts that the courts have found of assistance in clarifying, organizing, and analysing the various issues that present themselves in negligence litigation.

There are three core elements: the negligent act, causation, and damage. It is, indeed, difficult to conceive of negligence liability without proof of these three core elements. The negligent act is determined by identifying the appropriate standard of care and applying it to the facts of the case. 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.

In Canadian negligence law, however, a defendant is not respon-sible for every consequence of his negligent act. Important and contentious issues in respect of the extent of liability, the range of plaintiffs, the nature of the loss, and the nature of the defendant's activities must be addressed. Consequently, control devices have been developed to keep negligence liability within appropriate boundaries. There are two critically important control devices in negligence law: duty of care and remoteness of damage. Negligence liability cannot be established unless the judge recognizes that the defendant owes the plaintiff a duty of care in respect of the plaintiff's interests. This concept allows judges to regulate the application and extent of negligence liability, excluding it from certain activities, denying its applicability to certain kinds of losses, and excluding certain persons from the scope of the defendant's responsibility. [Note 1: Some judges and commentators begin their analysis of the tort of negligence with the issue of the duty of care. Nothing of importance turns on the order in which the essential elements of the negligence action are considered.] Remoteness of damage plays a similar role. A negligent act may have utterly improbable consequences that are entirely removed in time and place from the defendant's act. Causation cannot be denied, but fairness may dictate that the defendant should be sheltered from responsibility for some or all of the consequences of his negligent conduct. In such circumstances, the court may hold that the consequences are too remote and not compensable by the defendant. The manner in which the courts apply the concepts of duty of care and remoteness of damage reflect social policy and current judicial attitudes to the extent of liability for negligent conduct. Throughout the twentieth century, there was an unrelenting, incremental relaxation of the boundaries of negligence liability and a dramatic expansion in the scope of the tort of negligence. Nevertheless, the control devices continue to play an important role, particularly in cases of nervous shock and pure economic loss, and they are of central importance when novel claims are made involving the application of negligence law to new activities, persons, or kinds of damage.

Once the plaintiff has established these elements, the defendant may assert any of four defences. Contributory negligence by the plaintiff is a partial defence leading to a proportionate reduction in the quantum of damages. Voluntary assumption of risk is a complete defence that arises where the plaintiff consents to the defendant's negligence and its consequences. Illegality operates to deny a claim, such as one for future illegal earnings, that would subvert the integrity of the legal system. Finally, a defendant may assert that, in spite of indications to the contrary, the loss was caused, not by his fault, but by an inevitable accident. This, too, is a complete defence.

Once liability has been established upon a consideration of the aforementioned elements, damages must be assessed. Damages are tailored to the plaintiff's individual losses and are made in a lump sum award. Assessment of pecuniary and non-pecuniary losses arising from personal injuries creates particularly difficult problems.

This framework of negligence law is typical of a fault-based civil liability system. In its underlying theory, its terminology, and its concepts, negligence law appears to be a loss-shifting system based upon the moral imperative that wrongdoers should be individually liable for the damage they cause. In practice, the negligence system operates quite differently. It is predominantly a negligence/insurance system that spreads or distributes losses caused by negligent conduct to a broad segment of the community. This reality has had a profound effect on the development and application of negligence law. In the course of the twentieth century, it promoted a dramatic growth in the scope of liability, an increase in the size of awards of damages in personal injury and fatality claims, and a reformulation of some of the principles of negligence law to provide much greater protection of the interests of plaintiffs. Nevertheless, the public face and theoretical framework of negligence law do not reflect this reality. They continue to reflect a loss-shifting system that is based on personal accountability and is focused on the issue of interpersonal justice between the litigants. Consequently, negligence law is imbued with an unresolved tension between loss-shifting rules and loss-spreading realities. Modern Canadian negligence law continues to seek an appropriate balance between these two competing visions of its ultimate purpose.

CHAPTER 2, NEGLIGENCE: BASIC PRINCIPLES

B. THE STANDARD OF CARE: THE REASONABLY CAREFUL PERSON

The primary element of negligence liability is the negligent act, a failure to take care for the safety of the plaintiff. In determining the appropriate degree of care, it is useful to have some standard against which to measure the conduct of the defendant. One could suggest a number of possible standards such as the degree of care shown by a parent to a child, the care of a compassionate and humane person, or the care friends exhibit to each other. [Note 2: Some other standards, including that of the reasonable woman, are alluded to in L. Bender, "An Overview of Feminist Torts Scholarship" (1993) 78 Cornell L. Rev. 575.] The common law has, however, typically resorted to the reasonable person when it is in need of a normative standard of conduct, and negligence law is no exception. The standard of care that must be met in the tort of negligence is that of the reasonably careful person in the circumstances of the defendant.

The standard of the reasonably careful person was authoritatively established in the English case of Vaughan v. Menlove. [Note 3: (1837), 3 Bing. N.C. 468, 132 E.R. 490 (C.P.).] In that case, the defendant built a haystack close to the boundary between his land and that of the plaintiff. The haystack was so poorly constructed that it gave rise to a risk of spontaneous combustion. The defendant was warned of the danger but he did not take adequate steps to deal with it. In due course, the haystack caught fire and the fire spread to the plaintiff's property where it destroyed some cottages. At issue was the appropriate measure of the defendant's conduct. It was argued that the defendant was not negligent because he had acted honestly, in good faith, and to the best of his judgment. To impose liability would punish him, unfairly, for not being of a higher intelligence. Tindal C.J. rejected that argument and held that the defendant must "adhere to the rule which requires in all cases a regard to caution such as a man [person] of ordinary prudence would observe." [Note 4: Ibid. at 493 (cited to E.R.).] The defendant was held liable.

The standard of care of the reasonable person is an objective standard. It focuses on the defendant's conduct and its sufficiency with reference to that of a reasonable person. No consideration is given to the defendant's thought process or his subjective awareness of the danger that his conduct poses to others. It is not, therefore, necessary to show that the defendant was a conscious risk taker. Indeed, the test of the reasonable person excludes all the psychological and physical traits that make each person different. A person's ability to apprehend and avoid danger may well depend, in part, on his intelligence, reaction time, strength, courage, memory, coordination, maturity, wisdom, temperament, confidence, dexterity, and many other personal attributes. The objective test excludes all of these individual characteristics in its determination of reasonable care. [Note 5: Exceptions are made for children and mentally or physically incapacitated persons. They are discussed later in this chapter.]

The reasonable person is not, therefore, any single person. It is not appropriate for a judge or juror, for example, to evaluate the defendant's conduct on the basis of what she would have done in similar circumstances. [Note 6: Arland v. Taylor, [1955] O.R. 131 (C.A.).] Neither is the average person the reasonable person. The average person may fail to exercise sufficient care in some circumstances. The average driver is, for example, prone to frequent acts of negligence. In truth, the reasonable person is an abstract legal construct, used to set appropriate standards of conduct in society. That standard of conduct is determined by taking into account both the practical realities of what ordinary people do and what judges believe they ought to do. [Note 7: See M.A. Millner, Negligence in Modern Law (London: Butterworths, 1967) at 18.] It is not, however, a standard of perfection. The reasonable person may make mistakes and errors of judgment for which there is no liability. Nevertheless, the reasonable person is more alert to risk, and cautious by nature, than most of us.

The standard of the reasonably careful person has displayed surprising resilience and longevity. It is rarely questioned. There are a number of reasons for this. First, an objective standard presents fewer problems in respect of the proof of negligence. It is much easier for a plaintiff to establish the words and actions of the defendant as required by an objective test than to establish the defendant's thought process that accompanied that conduct as required by a subjective test. Administrative convenience and expedience are, therefore, served by an objective standard. Second, it is good policy to require a uniform standard of safety and security in society. Citizens may then anticipate and expect a reasonable degree of care from others and may act in reliance on the fact that these standards have legal recognition and are enforceable. Third, the adoption of an objective standard more efficiently promotes the compensatory functions of negligence law. The use of a subjective standard of care, which imposes liability only on conscious risk takers, would significantly reduce the number of persons compensated by negligence law. [Note 8: F. James Jr. & J.J. Dickinson, "Accident Proneness and Accident Law" (1950) 63 Harv. L. Rev. 769.] Most defendants in negligence cases are not conscious risk takers. They are people who have done their best but have failed to reach the normative standard of care by reason of mental or physical characteristics, momentary distractions, inadvertence, oversight, and other morally blameless reasons. Finally, the objective standard of the reasonably careful person in the circumstances has provided judges and juries with an abstract and malleable concept that can be applied to all activities, in all circumstances, at any time. Indeed it is capable of perpetual application as society evolves in the twenty-first century.