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The Elements Of Negligence

The Elements Of Negligence

By:

Posted July 11, 2019

In order to succeed in a negligence case, the plaintiff must prove the following four elements in order to establish that the defendant acted in a negligent manner, and the plaintiff is entitled to a judgment:

Duty

The plaintiff must show that the defendant owed her a legal duty of care under the circumstances. The duty of care can arise from different factors, such as the relationship between the plaintiff and the defendant.  Examples of relationships that create a duty of care are:

    • a doctor and a patient; or
    • a teacher and a pupil.

The duty of care can also be based on a certain type of situation. Examples of situations that create a duty of care are:

    • an operator of a car owes a duty of care to other drivers and pedestrians; or
    • a police officer directing traffic owes a duty of care to the drivers he is directing.

Breach

This describes the situation when the defendant failed to meet their duty of care by acting or failing to act in the required way. To determine if someone breached their duty of care, a court will use the “reasonable person” standard, which is based on how an average individual would responsibly act in a similar situation.  If the hypothetical reasonable person would have acted differently in that situation, in order to avoid causing injuries, then the defendant will be found to have breached the applicable duty of care.

Causation

It is also necessary to show that the defendant’s breach of the duty of care actually caused the plaintiff’s injuries. The two types of causation are “cause in fact” and “proximate cause.”

Cause in fact is based on whether the negligent act was the “actual cause” of the injuries. This can be established by using the “but for” test. In other words, causation is established if it is shown that, “but for the actions of the defendant, the injury not have happened?”  For example, if the driver did not run the red light, there would not have been a car accident.

Proximate cause is more complex. Proximate cause is based on whether the defendant could have reasonably foreseen that their actions might cause an injury. In other words, the defendant should have reasonably anticipated that her conduct could result in someone being injured. For example, someone should reasonably foresee that drunk driving could result in a serious car accident.

Defendants are usually not liable for injuries that were unpredictable or could not be reasonably connected to their conduct.

Damages

This means that there was some loss or damage caused by the defendant’s breach of the standard of care that a court is able to compensate the plaintiff for, usually by an award of money.

This blog post was written by Edward (Ted) Masters, a member of the Disability Insurance Claims and Personal Injury teams.  He can be reached at 613-566-2064 or at ted.masters@mannlawyers.com.

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