The Elements Of An Action Founded In Negligence

Over the years, clients have often expressed an interest in understanding what constitutes

a claim based in negligence and whether they are involved in such a successful claim. With the passage of time, the Courts in England and Canada established through their body of decisions a single conceptual framework that permits the analysis of negligence claims on a case by case basis.

Quinn Thiele Mineault Grodzki LLP, personal injury lawyers Ottawa, is always keeping up with developments in the law. The aim of this article is to enunciate the elements that form the analytical framework employed by the Court in the adjudication of a negligence action. The framework is composed of 6 distinct elements. It is the responsibility of the plaintiff of proving the existence, in their claim, of the first 5 elements. The defendant has the burden of proving the sixth. Therefore, if a plaintiff hopes to successfully argue an action based in negligence he must prove beyond the balance of probabilities that the following 5 elements are present in his claim:

The duty of care: the plaintiff bears the burden of proving that, in the circumstance, the defendants act or omission was in proximity to his person and that he was under a legal obligation to exercise care towards him and his interest. The duty of care is a concept that was born out of the principle that you must not injure your neighbor and therefore in your day to day activities you must take reasonable care to avoid acts or omissions which you can reasonably foresee would likely to cause an injury to your neighbor, i.e. the individuals who reside and operate in proximity to your acts or omissions;

The standard of care and its breach: the plaintiff must demonstrate and establish that a specific standard of care was required of the defendant in the circumstance. That is, to prove that the defendant was bound to conform to the standard of care that would have been exercised by a reasonable person. The Court then evaluates and assesses the conduct of the defendant and decides if he has breached the requisite standard. The standard of care is based on an evaluation of what the reasonable person would have been expected to do in the circumstance;

The cause in fact issue: Even if the plaintiff proves that a duty of care was owed to him and that a breach of the required standard occurred, he must still demonstrate that the defendants negligent conduct is a cause of his loss;

The remoteness of damages: Once it is established that the defendants negligent behavior caused the plaintiffs damages, the court must be satisfied that the damages sustained were a foreseeable result of the defendants negligent behavior. The damages must be foreseeable in the sense that when the defendant foresees the risk of damages associated with his behavior he can thus avert the risks caused by his actions;

The plaintiff must suffer an actual loss: Unlike other torts, negligence on its own is not an actionable. Therefore, the plaintiff bears the burden of proving that he has suffered a legally recognized form of damages.

Lastly, the defendant bears the burden of proving that defences apply in the circumstance. These defences are mainly aimed at whether the plaintiffs conduct in the matter should be taken into account to reduce his claim for damages or entirely defeat his claim. There are 4 defences that can be invoked by a defendant: 1) contributory negligence (the plaintiff contributed to his own misfortune); 2) voluntary assumption of risk (i.e., the plaintiff voluntary undertook to complete inherently dangerous task); 3) the doctrine of ex turpi causa non oritur action; and 4) inevitable accident (the event would have occurred regardless of the conduct of the defendant).

For those who wish to read a thorough analysis of the duty of care and the elements of a negligence action, we recommended reading the Supreme Court of Canadas decision in the matter of Nielsen v. Kamloops (City) [1984] 2 S.C.R. 2, a decision in which the Court adopted a pro-plaintiff interpretation of the duty of care.

For more imfomation visit the site: www.pqtlaw.com/

by: Pqtlaw

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