Ottawa Negligence Lawyers  – The elements of an action founded in negligence

The lawyers at Quinn Thiele Mineault Grodzki LLP, personal injury lawyers Ottawa, believes that keeping up with developments in the law is vital to the success of their representation of injured clients Every day there are developments in the law as it relates to personal injury and other areas and our lawyers remain up to date through various means such as news reports, general readings, lectures and RSS feeds.  In order to answer the usual inquiries of our clients and effectively represent our clients, we must be absolutely current in the law.  We encourage our clients to test our lawyers and their knowledge of personal injury law and procedure.
Our clients have often expressed an interest in understanding what constitutes a claim based in negligence and whether they have a good case that can result in successfully obtaining compensation.  Ontario is a common law jurisdiction (judge made law) and over time, the Courts in England and Canada (through judge decisions) established through their body of decisions a fairly reliable conceptual framework that permits the analysis of negligence claims on a case by case basis where each case is won or lost on its own merits; however, principles of law are applied to each case equally.

The elements that form the analytical framework used by the Court in the adjudication of a negligence action are complex but can be summarized generally.  The framework is, in general terms, composed of 6 distinct elements.  It is the responsibility of the plaintiff (person who was injured) of proving, in their claim, the first 5 elements, on a balance of probabilities.  The defendant has the burden of proving the sixth element.  Therefore, if a plaintiff hopes to successfully argue an action based in negligence, she/he must prove on a balance of probabilities that the following 5 elements are present in their claim:
• The “duty of care”: the plaintiff bears the burden of proving that, in the circumstance, the defendant’s act or omission was in proximity to his person and that s/he was under a legal obligation to exercise care towards their interest.  The duty of care is a concept that was born out of the principle that people must act reasonably not to hurt each other through 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 circumstances.  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/she 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 similar circumstances;

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

• The “remoteness of damages”: Once it is established that the defendant’s negligent behavior caused the plaintiff’s damages, the court must be satisfied that the damages sustained were a foreseeable result of the defendant’s negligent behavior.  The damages must be foreseeable in the sense that when the defendant foresees the risk of damages associated with his behavior s/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 s/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 plaintiff’s conduct in the matter should be taken into account to reduce his claim for damages or entirely defeat his claim.  There are 4 main 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 Canada’s 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.

Quinn Thiele Mineault Grodzki LLP
310 O’Connor Street
Ottawa, Ontario K2P 1V8
Tel: 613-315-4878