Negligence involves the inadvertent conduct 

causing injury or damage to others

A. A duty of care is owed

B. Breach of the standard of care

C. Causation 

D. Damages 

A. A Duty of Care is Owed 

• The test is whether it was reasonably foreseeable by the defendant that the conduct complained of could cause harm to the plaintiff.
• There must be a proximity between the defendant and plaintiff.
• The courts will also consider social policy when looking at some fact scenarios, especially in cases where the plaintiff is seeking that a new duty of care be recognized.
• Example: social / commercial / business host liability (Childs v. Desormeaux)
• Misfeasance (wrongful conduct) vs. non-feasance (person fails to do something) 
• no duty to assist someone in need, but if you do you may be liable for damages caused by such assistance
• British Columbia Good Samaritan Act – if a person renders emergency medical aid they cannot be liable for injury or death 

B. Breach of Standard of Care

• The test is “what would a reasonably prudent person, in possession of all the facts of the case, have done in the situation?”
• Not average, but not perfection either
• Different standards of a reasonably prudent person (ie. professionals, children, etc.)
• “prima facie” case is one where it is so obvious that negligence has occurred that the Court may shift the burden of proof to the defendant to prove they were not negligent
• Parents are not generally held vicariously liable for the torts of their children, usually the parents would have to be negligent in their own right by failing to properly train, control, or supervise their children
• British Columbia Parental Responsibility Act

• Tests for Causation: “but for test” – which is “but for the conduct complained of, no injury would have resulted”.
• In cases where multiple causes bring about the same harm, the court may look at whether the conduct complained of materially contributed to the injury or loss
• Thin Skull Rule – take the plaintiff as you find them
• Crumbling Skull Rule – if there is a pre-existing condition that would have caused the plaintiff’s deterioration, then the defendant shall not be responsible for that deterioration 
• Example – let’s say the plaintiff has severe depression and get’s into a minor fender bender. The depression causes the plaintiff not to recover for several months, so the damage award may be much higher than with a plaintiff whom did not have depression. 

Negligence requires that actual damage occur

• Types of Damages were discussed in Chapter 4 – Intentional Torts and 

Torts Impacting Business:

• General Damages

• Special Damages

• Punitive Damages

• Where the plaintiff is found at least partially liable for the tort. 

• Negligence Act requires judges to apportion liability between two tortfeasors, one of which may be the plaintiff

the plaintiff was aware of and 

voluntarily assumed the risk (ie. waiver form)

is a defence that is rarely used, but it states that a plaintiff may be denied recovery if they were committing an illegal act at the time of the tort.

• The textbook notes that at common law the obligation is on the ‘occupier’ and not necessarily the owner; however, in most Canadian jurisdictions including British Columbia there is legislation in place which changes the common law and states that owners are automatically presumed to be occupiers
• Trespassers are not protected by occupier’s liability legislation, however, the occupier still has an obligation not to willfully or recklessly cause them harm.

Liability of a professional may be found in several ways:

1.Breach of Contract – where liability is limited to the client itself and may be limited by the terms of the contract itself.

2.Negligence – must perform at the standard of a reasonable professional in that field (length of a practice is not a consideration) – courts have recognized liability to third parties for negligent misstatement 

• a fiduciary relationship is created when one person relies on the advice of another and reliance is placed on the advice (ie. conflict of interest is a common breach of fiduciary duty)
• The ‘duty’ is to act in the best interest of your client
• Breach of trust occurs when there is a misuse of trust property or funds (these are funds or property put in the hands of the advisor)
• Professional liability insurance

includes professional liability insurance, builder’s risk policy, umbrella policy

includes comprehensive policies (which cover everything

but the exceptions) and specific coverage policies

A judicial finding that circumstancial evidence establishes a case "on the face of it".

• asks the question “was the type of injury reasonably foreseeable?” 
• Note: this is different than the reasonably foreseeable test that is part of the determination of duty of care which focusses on danger to the plaintiff, where this test focusses on injury to the plaintiff

Misfeasance vs. non-feasance

Misfeasance (wrongful conduct)

vs.

non-feasance (person fails to do something) 

• Crumbling Skull Rule – if there is a pre-existing condition that would have caused the plaintiff’s deterioration, then the defendant shall not be responsible for that deterioration 
• Example – let’s say the plaintiff has severe depression and get’s into a minor fender bender. The depression causes the plaintiff not to recover for several months, so the damage award may be much higher than with a plaintiff whom did not have depression. 

Torts Impacting Business:

• General Damages

• Special Damages

• Punitive Damages