7. The Tort System

Unintentional Torts

Everyone has the duty to act reasonably and to exercise a reasonable amount of care in their dealings and interactions with others. Breach of that duty, leading to an injury, is what is known as negligence.

Negligence arises when an individual or organization fails to take reasonable care in their actions and causes injury or harm to another person. Negligence can include failing to act reasonably, such as failing to take precautions against foreseeable risks, or acting in a manner that is careless or reckless. To prove negligence, a plaintiff must show that a defendant acted in a way that breached their duty of care, and that this breach caused injury or harm. If negligence is established, the defendant may be liable for any damages suffered by the plaintiff.

In order to succeed with a negligence claim in Canada, a plaintiff must prove that a defendant owed them a duty of care, that the defendant breached that duty, and that the breach caused the plaintiff to suffer damages. The plaintiff must also show that the damages were foreseeable and that the damages were quantifiable. Additionally, a plaintiff must demonstrate that the damages were a direct result of a defendant’s negligence.

Duty of Care

Duty of care is an obligation imposed on individuals and organizations to take reasonable steps to prevent foreseeable harm to others. It is based on the principle that we have a legal duty to act in a reasonable manner towards others, taking into account the foreseeable risks of our actions. The standard of care required is assessed objectively – what a reasonable person in the defendant’s circumstances would have done. Duty of care is a cornerstone of tort law and serves to ensure that those who cause harm to another person are held accountable.

Generally, people are free to act any way they want, as long as they do not harm others. This means strangers are generally not responsible for caring for each other unless a special relationship exists. For example, parents owe their children a duty of care and doctors owe their patients a duty of care because of their underlying relationship.

In a business context, businesses owe a duty of care to their customers and managers owe a duty of care to their employees. It is important to understand that businesses and individuals owe a general duty to the community as a whole and are required to exercise a reasonable degree of care to protect the public from foreseeable risks that the owner knew or should have known about.

Standard of Care

The standard of care refers to the degree of care which a reasonable person would use in similar circumstances. This means that a person can be held liable for damages caused by a failure to take reasonable steps to prevent harm to another person. The standard of care may vary depending on the particular circumstances and can be higher or lower than the usual standard. The court will consider all relevant factors, such as the nature of the activity, the level of risk involved, the resources available and any special expertise or knowledge of the person.

Reasonable Person – A reasonable person is not expected to be perfect. It is an objective standard in which the expectation is to exercise reasonable care based on what he or she knows about the situation, how much experience he or she has with the situation, and how he or she perceives the situation. Professionals (such as doctors, accountants, lawyers, engineers and others) are typically held to a higher standard due to possessing greater expertise and experience within their area of practice compared to an average person.

Reasonable Care The reasonable care standard is the legal duty of care that a person must exercise in order to avoid causing foreseeable harm to another person. This standard of care requires the person to take reasonable steps to protect the safety and welfare of others. This includes taking steps that are within the realm of what a reasonable person would do in similar circumstances.

Reasonable Foreseeability Negligence case decisions are influenced by whether or not a defendant could have predicted that an action or inaction could have resulted in the tort. Responsibility is often based on whether the harm caused by an action or inaction was reasonably foreseeable – that harm or injury could be reasonably anticipated from the actions of a person or entity.

Breach of Duty – Once a duty of care and the standard of care have been established, plaintiffs have to prove that the defendant breached that duty. Breach of duty occurs when a person’s conduct falls below the expected standard of care owed to another person. This occurs when a person has a duty of care to another person and does not meet the requirements of that duty. When a person breaches their duty of care, they can be held liable for any losses suffered by the other person as a result. A breach is demonstrated by showing the defendant failed to act reasonably. In practical terms, the presence of injury or harm is usually enough to satisfy the “breach of duty” requirement.

Causation – In tort law, a plaintiff must be able to prove that a defendant’s actions directly caused or contributed to the injury or damages suffered by the plaintiff. In order to prove causation, the plaintiff must show that the defendant’s actions or omissions were the direct cause of the harm. The legal test for causation is known as the ‘but-for’ test, which states that the plaintiff must show that ‘but for’ the defendant’s actions, the harm or injury would not have occurred. In addition, the plaintiff must prove that the harm was reasonably foreseeable to the defendant.

Damages – The final element in negligence is legally recognizable injuries, or damages. If someone walks on a discarded banana peel and does not slip, then no tort occurs because there was no injury.

There are two types of damages awarded in tort law. Compensatory damages are damages that are awarded to a plaintiff to compensate them for a loss or injury caused by the defendant’s wrongful act or negligence. This type of damages is designed to put the plaintiff back in the position they were in prior to the incident or to make them whole. These damages are based on the plaintiff’s actual losses, such as medical expenses, lost wages, and pain and suffering.

The second type of damages is punitive damages, which are intended to deter the defendant from engaging in similar conduct in the future. The idea behind punitive damages is that compensatory damages may be inadequate to deter future bad conduct, so additional damages are necessary to ensure the defendant corrects its ways. Punitive damages are awarded to the plaintiff in addition to other damages for losses such as pain and suffering and economic losses. They are awarded only in exceptional cases where the defendant’s conduct has been particularly malicious or outrageous. There are constitutional limits to the award of punitive damages.


There are a number of defenses which a defendant can use in a negligence claim. Specifically, a defendant being sued for negligence has two main defenses:

  • assumption of risk by the plaintiff;
  • and (2) comparative negligence.

Assumption of Risk – The first defense is assumption of risk. If the plaintiff knowingly and voluntarily assumes the risk of participating in a dangerous activity, then the defendant is not liable for injuries incurred. However, a plaintiff can only assume known risks. A skier assumes the known risks of downhill skiing, including falling, avalanches, and skiing in poor conditions. However, a skier who is injured from a defective chair lift does not assume the risk of injury as a result of a manufacturing defect or poor maintenance practices.

A related doctrine, the open and obvious doctrine, is used to defend against lawsuits by persons injured while on someone else’s property. The open and obvious defence states that a defendant is not liable for harm caused to the plaintiff, if the defect or danger was so obvious that it should have been noticed and avoided by the plaintiff. This defence is based on the idea that a plaintiff should not be able to recover damages for injuries sustained from something that was obvious and should have been avoided.

Contributory Negligence – The second defense to negligence is when the plaintiff’s own negligence contributed to his or her injuries. Many jurisdictions follow the contributory negligence rule. Under this rule, the judge or jury will determine the percentage of fault of all the parties for the plaintiff’s injuries. If the jury finds the plaintiff responsible for some of his or her own injuries, then any contributory damages are reduced by that percentage. For example, if a customer is 40 percent at fault for his injuries, then the compensatory damage award will be reduced by 40 percent. The reasoning for this rule is to hold people and businesses accountable for their own negligence.


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Business Law and Ethics Canadian Edition Copyright © 2023 by Craig Ervine is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License, except where otherwise noted.

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