1 proximity and foreseeability the closeness of the

 1) proximity and foreseeability: the closeness of the relationship ie is there a direct or
connecting link; and was it reasonably foreseeable by the ordinary person that the
plaintiff’s conduct would cause harm to the defendant
 2) IF proximity and foreseeability exist, then there is a duty of care owed UNLESS there
are public policy reasons that would justify removing or reducing that duty
o public policy is difficult to define
o when we were studying illegal contracts we said it was an analysis of what was in
the public “good”  interests of Canada, public service, values of society
Kealey v Berezowski
 Sterilization procedure on Mrs K performed by doctor did not work
 Mrs K got pregnant
 Sued doctor for negligence, claiming damages
 NEGLIGENCE
o 1) Dr and patient relationship, therefore duty of care owed
o 2) Standard of care was to correctly apply the clip to tube; there was a BREACH
as the clip wasn’t applied properly
o 3) Claimed damages in resulting labor and pain and child rearing
 was claim in negligence negative by the fact that public policy favours and values
children?
o Children regarded as beneficial and loss of a child, not birth of one, is a
compensable wrong.
Standard of Care
 The reasonable care that would be taken by an ordinary person (taking into account the
circumstances) to avoid causing foreseeable injury to persons or property
 Will vary depending on activities and person in question
Damage or Loss
 Must be damage or loss suffered by the plaintiff – I must be REAL and not hypothetical –
this is what is being compensated
 Can be physical or mental injury to persons
o Economic loss is considered tort
Causation
 “but for” test: “but for” the negligent conduct of the defendant, the injury would NOT
have occurred
 in exceptional cases, where the but for can’t establish causation, the court moves to
“material contribution” test
Thin Skull Rule
 comes into play AFTER foreseeability is established
 take the defendant as you find them

 the SCC was careful to point out that while a plaintiff must prove that psychological
injury in a person of reasonable fortitude was foreseeable, the plaintiff need not prove
that the extent of the injury was foreseeable
 entitlement to damages is established with an objective standard while the extent of
damages is established with a subjective standard
Defenses to Negligence
 defendant may dispute any evidence on any of the four elements
o 1) duty of care
o 2) breach of standard of care
o 3) damage
o 4) causation
 as partial defence in addition to the above, may allege that their OWN conduct or
conduct of ANOTEHR provides partial or full defence
 if defendant or other parties are negligent, the courts will apportion the damages
accordingly to the respective percentages of contributory negligence
 partial defense: defendant has duty to mitigate (act reasonably and quickly to minimize
the extent of damage suffered)
 as full defence : voluntary assumption of risk
 Contributory Negligence
Contractual Obligations