D. 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. Proof of negligent conduct without consequences will not do. This is not a matter of debate or contention in negligence law. It is true that the punitive and deterrent functions of negligence law would support the idea of liability for merely exposing another to a significant risk of injury, but the compensatory rationale of the tort is so dominant and the flood of litigation would be so great that such a notion has not received serious consideration. There has, however, been considerable debate about the kind of damage sufficient to support an action in negligence. There is a good deal of case law, for example, defining the scope of recovery for psychiatric damage and economic losses. But this debate has not taken place under the rubric of damage. It has taken place in a discussion of one or other of the control devices: duty of care and remoteness of damage. The element of damage has therefore been marginalized from any policy debate about the scope of negligence liability.

CHAPTER 2, NEGLIGENCE: BASIC PRINCIPLES

E. The duty of care

The establishment of a duty of care is an essential element of liability in negligence. It is a question of law which requires the judge to determine if the defendant is under a legal obligation to exercise reasonable care in favour of the plaintiff. Prior to the decision in Donoghue v. Stevenson, [Note 76: M'Alister (or Donoghue) v. Stevenson, [1932] A.C. 562 (H.L.) [Donoghue].] courts approached this task by examining the particular relationship between the defendant and the plaintiff in the light of prior authority and the surrounding circumstances, and by declaring whether or not a duty of care was owed by the defendant. This incremental process of examination and classification provided guidance in respect of those relationships that had been the subject of judicial consideration but it provided no underlying or unifying principle for application to future cases.

In 1932 the famous case of Donoghue v. Stevenson was decided. The plaintiff, Mrs. Donoghue, alleged that she visited a caféwith a friend who purchased for her an opaque bottle of ginger beer manufactured by the defendant, Stevenson. She poured some of it into a glass with ice cream and drank it. When the remainder of the ginger beer was poured into the glass, the decomposed remains of a snail floated out. She became ill as a consequence of drinking the adulterated ginger beer. The plaintiff had no claim for breach of contract because she had not purchased the ginger beer. She sued in negligence. The defendant argued that he owed no duty of care to the plaintiff. [Note 77: The case was litigated on this preliminary question of law. After this litigation, the case was settled. There was no trial to determine the truth of the plaintiff's allegations. It is not uncommon in novel cases for the defendant to attempt to derail the plaintiff's case by means of a pre-trial motion attacking the plaintiff's pleadings on the ground that the defendant did not owe the plaintiff any duty of care.] The House of Lords disagreed. In a majority decision, it held that a manufacturer of products does owe a duty to the ultimate consumer to take reasonable care to prevent defects in its products which are likely to cause damage to person or property. This finding alone was sufficient to establish Donoghue as a products' liability case of first importance. Its fame was secured by a passage of Lord Atkin's judgment where he attempted to formulate a general conception of relationships which gives rise to a duty of care. It is known as the neighbour principle. He stated:

The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. [Note 78: Donoghue, above note 76 at 580.]

In the last sentence of this passage, two intersecting ideas are identified as pertinent to establishing a duty of care. There is the notion of a close and direct relationship, which is captured by the word proximity used later in Lord Atkin's judgment, and the idea of contemplation or foreseeability of damage to the plaintiff. It is not immediately apparent from the judgment if the concept of close and direct relationship (from which foreseeability of harm is an ancillary consequence) is the ultimate touchstone of a duty of care or whether the reasonable foreseeability or contemplation of damage is the defining criterion of a sufficiently close and direct relationship. This ambiguity is reflected in many subsequent judgments addressing the duty issue. Lord Atkin probably wished to emphasize the former but the dominant interpretation of his neighbour principle in Canada is that reasonable foreseeability of damage to the plaintiff is the primary and essential criterion of a duty of care and reasonable foreseeability defines a proximate relationship.

This general principle encouraged the examination of all relationships that satisfied the foreseeability requirement. It ushered in an unprecedented expansion of negligence liability which drew a wide range of persons, activities, and kinds of damage within the scope of the obligation of care. The duty of care is not, however, resolved solely on the issue of foreseeability. If that was the case, there would be little to distinguish it from the standard of care analysis, in which foreseeability plays such a central role. Duty of care plays a much more sophisticated role in negligence law. It is the primary instrument of control over the extent of negligence liability. Consequently, consideration must be given to public policy and whether or not the recognition of a legal obligation to exercise care in favour of the plaintiff is in the best interests of society. Quite simply, a court must be convinced that the imposition of a duty of care on the defendant is a good idea. For example, the incompetence of a judge may cause foreseeable damage to a litigant and poor parenting may foreseeably contribute to a person's lack of self-esteem, but the courts have not recognized an actionable duty of care in either situation. Factors such as the independence of the judiciary, the integrity of the appeal structure, and the discretionary nature of judicial decision making all support a judicial immunity from a suit in negligence, and the potentially adverse impact on family relationships, the lack of a societal consensus over the way in which children should be raised, and causation and loss assessment problems caution against imposing liability on parents for the personality impairments of their children.

Until recently, however, the assessment of policy factors was often hidden behind a façade of conclusionary statements about foreseeability. Judges were reluctant to acknowledge openly the controlling function of policy analysis and their role in evaluating the needs of society.

In 1977 Lord Wilberforce in Anns v. Merton London Borough Council [Note 79: [1978] A.C. 728 (H.L.) [Anns].] changed all of this. He called for a two-stage analysis of the duty of care issue, which separated the consideration of foreseeability from the policy assessment of societal need. He stated:

First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter - in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of may give rise. [Note 80: Ibid. at 751-52.]

The Anns dictum not only invited a more transparent discussion of the duty issue, it also reinvigorated the expansionary trends in negligence law in two ways. First, it created a presumption of a duty of care in all relationships, giving rise to a reasonable foreseeability of damage to the plaintiff. Secondly, it placed on the defendant the unenviable and sometimes considerable burden of persuading the court why the plaintiff did not deserve to be protected from his negligent conduct. The Anns dictum, because of its expansionary tendencies, quickly fell out of favour with English courts. They have returned to a much more conservative, incremental approach that relies on the gradual extension of prior authority and an assessment of whether the proposed duty is just and reasonable. In Canada the Anns dictum has been adopted and applied consistently by the Supreme Court. [Note 81: Beginning with Neilson v. Kamloops (City of), [1984] 2 S.C.R. 2.]

The first stage of the Anns test has been interpreted as requiring no more than the reasonable foreseeability of damage to the plaintiff and usually creates few problems for the courts. The second branch of the test permits a full and open debate about the societal costs and benefits of recognizing a duty of care. It not only allows the prima facie duty to be negated, but it also allows this duty to be restricted or modified to meet policy concerns. For example, the courts may demand that some additional element be found in the relationship, such as reliance by the plaintiff, an assumption of responsibility by the defendant, a specially close relationship, or some other element that defines the relationship more closely than foreseeability, before a duty will be recognized.