AN OVERVIEW OF CONSTRUCTION CLAIMS: - Clark Wilson LLP

p. 24
1. What Is Negligence
Negligence is conduct that falls below a standard established by the law for protection of others
against unreasonable risk of harm. In order to prove negligence, a party must prove the
following:
(a)
(b)
(c)
(d)
(e)
Duty of care – the party at fault owes a duty or obligation to the complainant,
recognized at law, requiring that party to conform to a certain standard of
conduct;
Breach of the duty of care – a failure on the part of the party at fault to conform to
the standard required;
Causation – there is a sufficiently close causal relationship between the breach of
the duty of care and the resulting loss;
Foreseeability – it was reasonably foreseeable that the breach of duty of care
would cause the loss; and
Actual loss of damage resulted from the breach of duty of care.
Negligence can arise from action or inaction. Inaction is essentially an omission, or a failure to
do something which is required at common law or by the contract. Negligence also includes a
failure of a party to warn another party about a defect, potential loss or danger.
2. Duty of Care
A duty of care exists where there is a proximate relationship between the parties, such as a
contractual relationship or a fiduciary relationship.
The duty owed to a contracting party exists independently from the contract and thus gives rise
to a separate cause of action. The Supreme Court of Canada has discussed the interrelationship
between tort and contract in these circumstances:
What is undertaken by the contract will indicate the nature of the relationship that gives
rise to the common law duty of care, but the nature and scope of the duty of care that is
asserted as the foundation of the tortious liability must not depend on specific obligations
or duties created by the express terms of the contract. It is in that sense that the common
law duty of care must be independent of the contract. 41
Where the cause of action is available, parties may sue in contract or in negligence or both,
unless the parties have specifically contracted away part or all of the ability to sue in negligence.
This latter point is important for parties to consider when entering into contracts. It is important
for parties to know what duties exist at law in order to determine whether they should contract
out of such duties.
41
Central Trust Co. v. Rafuse and Cordon, [1986] 2 SCR 147, at p. 149.
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