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  • Writer's pictureAngela Desjardins

Elements of Tort of Negligence

The tort of negligence is a legal concept. A party can be found liable for failing to act reasonably toward another party and causing damage or injury. It is designed to protect parties from acts that cause personal injury, property damage, economic loss, or other types of loss. The four elements of the tort of negligence are duty, breach, causation, and damages.

A duty of care exists when one party (the tortfeasor) owes a legal obligation to another party (the claimant). The tortfeasor must act reasonably toward the claimant. They must take reasonable measures to prevent harm to others. For example, if you are driving at night and see a pedestrian crossing your path, you must use your brakes quickly enough to avoid hitting them. However, if you do not use your brakes quickly enough, then there may be an issue with their ability and yours.

The duty of care is an obligation that a person must not cause harm to another party. In some cases, this can be a legal obligation on behalf of one party to take reasonable steps or precautions so that they don't cause any harm whatsoever. In other cases, it may just mean that they must act reasonably to avoid causing any harm.

The breach of duty must be the proximate cause of the injury. A defendant who does not owe a duty to protect you from harm cannot be held liable for failing to do so. The conduct that causes damage must also be foreseeable to give rise to liability and reasonably avoidable by the defendant. For example, suppose your neighbour puts out the poison that makes it into your drinking water. In that case, he will likely be liable because his actions were reasonably foreseeable. He could have taken steps to avoid poisoning you (such as using safer poisons).

A breach of duty must be the proximate cause of the injury. The injured party must prove that the injury was caused by the defendant's failure to perform a duty owed to them, not some other person or entity. While there is no precise test to determine whether another act proximately caused an act, there are some factors courts will look at when making this determination:

  • Cause in Fact: Is it reasonable to believe that if one act had not occurred, then another would have happened? If so, then the acts are considered "causally linked."

  • Reasonable Foreseeability: Would a reasonable person have foreseen potential harm from performing a certain action? The more foreseeable an event is, the less likely it will be considered an accident.

A party can be found negligent for its failure to act reasonably toward another party. For example, if you are walking down the street and a car comes speeding around a corner, you have an obligation to keep yourself out of harm's way. If you do not do so and get hit by the car, the driver could be deemed negligent for failing to keep a reasonable distance from pedestrians.

This same principle applies when dealing with your interests as well. If you are in charge of taking care of someone's pet and that person asks you to feed it every day at noon without fail. Then they come home one day at 2 pm and find out that their pet hasn't been fed all day because "you forgot," they may be able to bring suit against you based on negligence, breach of contract, or both.

To successfully prove the tort of negligence, a plaintiff must first prove that a duty of care exists. This was followed by showing how the defendant breached that duty and caused injury to the plaintiff. Lastly, one must prove that the injury occurred by way of causation. When all four elements are proven, negligence is considered to have happened.

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