Elements of Tort of Negligence

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Whether its a motor vehicle accident or a defective product, almost everyone at some point is affected by a negligence issue. This lecture explains the basic elements to establish a claim in tort of negligence.

This lecture is taught by Amer Mushtaq, LL.B., M. Engineering , B.Sc. (Hons.), who is the Principal and Founder of Formative LLP.   Through his YouTube channel, YouCounsel, Amer shares practical advice from his years of legal experience to help anyone access justice and achieve their goals.  Subscribe today to learn more.


Show Notes:


Lecture Slides:

Welcome to YouCounsel.

If you are unfamiliar with tort law we have posted another lecture earlier about different types of torts and I would recommend that you review that lecture before you learn about tort of negligence.  If you understand what a tort of negligence is generally about, in today’s lecture we will explain what are some of the basic things that you need to prove in court in order to get your remedies under tort of negligence.

We begin with our usual disclaimer that this lecture is not legal advice.  If you have any specific questions regarding your issues you should contact a lawyer or a paralegal or the Law Society of Ontario for a referral.

Let’s talk about some of the examples of negligence torts which will help you understand what kind of torts we are talking about. The common example that will come to mind is a motor vehicle accident. Anytime there’s a motor vehicle accident, there could be a tort of negligence arising from that accident.  Medical malpractice is another area where tort of negligence may come into play. Professional negligence – whether it’s lawyers’ negligence or your accountant’s negligence or any other professional who may be providing you any services—that will be covered under tort of negligence. Commercial host: these would usually be hospitality industry—like bars and restaurants who serve alcohol—they may come under commercial host negligence area. Social host: these are similar to commercial host.  The only difference is that in this case the social host may not be getting a monetary benefit of providing that particular hosting. Trespassing is another tort of negligence and the negligent investigation.  There could be many more, but these are some of the examples just for you to understand the kind of areas that may be covered under tort of negligence.

What are the basic elements of tort of negligence?  There are five.  (1) Number one, you have to show that the defendant owed the plaintiff a duty of care number. (2) The defendant actually breached the standard of care which is also called the “reasonable person” standard. I’ll explain what that is. (3) Third, the defendant’s breach caused the plaintiff’s injury, harm or loss (which is causation). (4) Number four, the injury or harm that was caused was actually foreseeable and it’s called “foreseeability” test. (5) Number five, did the plaintiff actually suffer harm or loss.  The plaintiff has to show what harm or loss the plaintiff actually suffered. Once he shows those 5 elements you will be able to get remedies that you’re seeking under tort of negligence.

1.  Duty of Care: What is the duty of care? It is fundamentally an obligation not to harm others or their property. This could mean a very specific duty or could be duty to a general  For example, when we are driving we owe a duty of care to everyone else—whether it’s other motorists or pedestrians—that in driving our vehicle, we will not cause any harm to them.  That duty is a very general duty. It is to the general public at large but duty could be very specific. For example doctor-patient relationship: a doctor owes a duty of care to his or her patients. A lawyer owes a duty of care to his or her clients. Similarly, manufacturers owe a duty of care to their consumers. And as I mentioned driving is a broad duty of care that we all hold to the larger public.

There are all these kinds of duties of care which are fundamentally duties that are imposed by law depending upon the circumstances of a specific case.

2.  What is the standard of care? It is called the “reasonable person standard”. The larger question that the court has in its mind is, “what would a reasonable person do in those circumstances?” that are the subject of your lawsuit. Let’s think about it by way of an example. Professional standards: a lot of a lot of administrative bodies like College of Physicians and Surgeons and Law Society of various provinces have these professional standards which will indicate to the court what is the appropriate standard of care that a lawyer or a doctor should have exercised in that specific situation. The larger question is, for example, in a case where you’re claiming that the specific surgeon was negligent in performing a surgery. The question for the court is, “what would a reasonable surgeon or a surgeon who is reasonably diligent and informed about his profession or her profession, what would he or she have done in those specific circumstances.  That’s the standard of care.  The court actually determines a standard of care in each case and then looks at the conduct of the defendant in comparison to that standard of care and then determines whether that person / the defendant actually breached that standard of care or not.  “What would a reasonable lawyer have done in similar circumstances?”—that would be a standard of care in case of malpractise of a lawyer. 

3. Third element is causation. As you can imagine did the defendant’s breach or did the conduct that is in question in the lawsuit actually cause the injury or loss.  The conduct should be connected and tied to the injury harm or loss that is being alleged. Let’s take another example. In this case, example of a motor vehicle accident: for example a person gets into a car accident and later on the person claims that he or she has suffered some neurological issues because of that specific accident. In that case the plaintiff will have to show that that specific neurological disorder is in fact caused by the accident. It is not something that occurred maybe afterwards, maybe something else happened at the hospital which may have caused that particular disorder and may or may not have been related to the specific accident or the defendant’s misconduct or defendant’s breach of the standard of care.  The causation needs to be proven so that you are able to get remedies under the tort of negligence.

4.  Fourth element is foreseeability. What foreseeability is, that when a reasonable person is in the shoes of the defendant, could that reasonable person foresee or anticipate that if the conduct was wrong then the harm that has occurred could have happened. It’s kind of like looking in hindsight and imagining that if another person (a reasonable person) was in the same circumstances could that person have imagined or would that harm ensue because of that conduct.  Let’s take another example.  When a person is consuming alcohol in a bar, a bartender should generally be able to determine if a person is sufficiently intoxicated and that person gets in the driver’s seat of a vehicle, it is foreseeable that the person may end up getting into an accident.  That is a foreseeability test.

We can also imagine that if you have purchased a defective product, if a manufacturer has sold that defective product then that defective product may end up causing some injury or harm to the consumer.  Is that something that’s foreseeable or not? Another example could be: let’s take the example of surgery. If a surgeon leaves some of the surgical tools in the body of the patient and has completed the surgery it is obviously foreseeable that those surgical tools that have remained in the body of the patient may cause further injury or harm to the patient. That act (that particular act) the court is considering—whether that particular act if it was seen by a reasonable person could that person anticipate that yes an injury or harm could occur from that particular act.  Foreseeability is the fourth element of proving tort of negligence.

5.  Finally, the plaintiff has to prove damages. What was the harm or loss? Then the plaintiff has to prove that that the plaintiff has actually suffered that harm or loss. Let’s take another example of a motor vehicle accident.  In that case, this person was involved in an accident and was not able to work for a month after the accident because of the injuries sustained in that accident. Then the person will have to prove that the person was not able to earn his living for that month and is entitled to claim damages for the loss of earnings.

Similarly, let’s say the person was a tradesperson who used his hands to earn his living. Let’s say in that particular accident he lost his arm or he lost his hand or his fingers such that he is not able to make a living out of the same trade that he was previously involved in.  Then he has potentially lost his earning capacity (his future earning capacity).  That could be damages that could be claimed.  But the plaintiff has to prove that the plaintiff has actually lost that earning capacity. Similarly, again in the accident situation, if there were any costs that the person had incurred for medical rehabilitation, the plaintiff will have to prove those damages.  All the damages that the plaintiff and there are so, so, many kinds of damages that could be claimed but the point here is that if there are any damages that the plaintiff is claiming it is the plaintiff’s burden to prove that the plaintiff has indeed incurred those damages or loss and he or she is entitled to be compensated.

All of these five elements need to be proven and once they are proved you will be entitled to seek remedies in the tort of negligence. As I mentioned at the outset the tort of negligence is a powerful tort.  It covers so many areas of our lives and it is an essential tool in claiming damages and remedies from all these kind of issues that we may experience in our daily lives. It’s an important tort to know.

You also want to understand that each cause of action may have different elements.  For example, if you’re claiming defamation you may have different things to prove. But, fundamentally, the five elements that I have described, those are the five basic elements that you will end up proving in every single case.  That is why it is important to understand the basic concept of tort of negligence. You also want to understand that the negligence tort continues to grow. I mean a few centuries ago they didn’t exist. Now we have all kinds of these torts of negligence. They will continue to grow and evolve as society continues to grow and get more complex and relationships get more complex. New duty of care is found all the time by courts and the law is sufficiently broad and sufficiently philosophically based in certain ways that the court can find new duty of care if there is no existing duty of care in the circumstances but one that ought to be created.

Important to note and hopefully this gives you a good understanding of tort of negligence. In our future lectures I will pick some topic about negligence.  In today’s age, for example, tort of negligence in artificial intelligence related matters or virtual reality matters or augmented reality issues and whatnot—so will take this tort of negligence and apply in those circumstances and see how we can we predict how the law may grow in the future years to come.

Thank-you for watching.

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