Most people are unaware of the civil and legal responsibilities society demands. The law expects citizens to be aware of other persons in close proximity. When injury or damage occurs, courts examine the relationship between the parties involved to find a solution. Sometimes one intentionally causes harm to another party and the inflicted damage can be physical or financial. In other cases, as in R. v. Robinson [2007], a person is simply careless (negligent).
Harm and Damage in the Canadian Legal Context
Harm refers to the consequences or damage an individual incurs through the actions of another party. The harm may be to one's "person, dignity, property, or wealth"(Osborne 1). The law specifies situations where victims can claim damages (money) from the person who harmed them. In Canada, a person can only be held accountable for "loss caused by a wrongful act"(8). Tort law, then, is the area of law whereby "civil wrongs"(Osborne 444) are remedied by awarding money to the victim.
The Defendant's Conduct
There are three situations that determine the defendant's responsibility for the victim's damage. First , if the conduct is "intentional"(Osborne 8). This includes kidnappings or arson, or deliberate attempts to harm the bodies and properties of other parties. Secondly, conduct is "negligent" when the individual "creates a reasonably foreseeable and substantial risk of its consequences"(8). For instance, homeowners who fail to clear ice from walkways may be held liable for slips and falls. And finally, when conduct is "accidental"(9).
The Plaintiff's Loss
The court determines the nature of the plaintiff's harm against the nature and extent of the defendant's wrongdoing. According to Philip Osborne, "awarding compensation for personal injury"(9) is more "justifiable" than compensating a "person's public embarrassment or humiliation"(9). For example, accident victims directly involved in the situation will almost certainly be compensated. People who are not directly affected by the accident cannot claim to have suffered damage.
Definition and Elements of Negligence
Negligence, in the civil sense, is a tort based on careless conduct or conduct that creates a "reasonably foreseeable risk of harm". It contains three elements: the negligent act, causation, and damage. To identify the defendant's harmful act, courts assess the facts of the case in relation to "the standard of care"(Osborne 25): a test that compares the wrongdoer's conduct against how rational persons would behave in similar circumstances.
The second element, causation, determines the connection between the defendant's carelessness and the plaintiff's damage. Damage is the consequence of the defendant's activity. Without proveable damage, the Plaintiff cannot establish the wrongdoer's liability.
The Duty of Care and Remoteness of Damage
Negligence liability is confined to the plaintiff-defendant relationship. Two factors, namely the "duty of care" and "remoteness of damage", help courts analyze the events of the case and determine if the defendant is under a legal obligation to exercise care in relation to the plaintiff (Osborne 25-26). For example, a surgeon is obligated to perform safe surgeries. Swimmers are not obligated to rescue a drowning victim of no relation to them.
What the courts call a "reasonable person"(Osborne 28-29) is simply a standard to describe a level of safety consciousness above and beyond that of the average person. He or she avoids the risk of injury for all concerned and has the foresight to anticipate the "likelihood of damage"(32). Lastly, the reasonable person "regulates his conduct" according to the "seriousness" of the danger involved.
Criminal Negligence
Criminal negligence is far more severe and destructive in its implications than the civil element. The Criminal Code of Canada (s. 219) states that everyone is negligent who
- (a) in doing anything, or
- (b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives and safety of other persons.
Any action or inaction that shows "wanton disregard" for another party's safety applies. Since there is a greater degree of "misconduct", such behaviour must be a marked "departure from what society expects that the wrongdoer becomes guilty...of civil negligence but also of a criminal offence"(Barnhorst 236). The Crown Prosecutor and the Court will attempt to determine if the accused knew that his conduct was reckless, or "turned a blind eye" to his own antisocial activities.
Reasonable people ought to know what constitutes dangerous, immoral conduct. Criminal negligence implies an apathy towards others. In R. v. Robinson [2007], a bi-polar sufferer was found guilty after he rear-ended two female victims who died instantly on the highway 401 near Chatham-Kent Ontario. The Court found that his disorder "affected his judgement" and "triggered" an "erratic" operation of his vehicle. The Judge determined that he "ought to have known" that his disability made him too "dangerous" to drive.
Society's laws regulate the activities of citizens and provide compensation and deterrance. But it is the individual's duty to exercise prudence.
Works Cited
Barnhorst, Richard, and Sherrie Barnhorst, Criminal Law and the Canadian Criminal Code, 4th ed. (Toronto: McGraw-Hill, 2004).
The Criminal Code, R.S.C. 1985, C-34.
Osborne, Phillip. The Law of Torts, 3rd ed. (Toronto: Irwin Law Inc, 2007).
R. v. Robinson, [2007] CanLii 5369 (ON S.C.)
Christopher Mansour - Christopher Michael Mansour currently lives in Barrie, Ontario and has diverse interests ranging from World Mythology to Modern North ...
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