The starting point

Every Canadian negligence analysis begins with Donoghue v Stevenson (1932). Lord Atkin''s neighbour principle — you must take reasonable care to avoid acts you can reasonably foresee would injure your neighbour — is the doctrinal source of modern duty of care.

Cooper v Hobart (2001) is the modern Canadian articulation, adapting the English Anns/Caparo framework into the two-stage test that now governs novel duty cases.

The five elements

Negligence requires:

A duty of care owed by the defendant to the plaintiff.
Breach of that duty (failure to meet the standard of care).
Damage (cognisable harm — usually personal injury, property damage, or in some cases pure economic loss).
Causation (factual and legal).
Foreseeability of the type of damage.

Each element has its own doctrine and case law.

Duty of care — the Anns/Cooper framework

Stage 1: Was harm reasonably foreseeable, AND was there proximity?

Foreseeability is straightforward: would a reasonable person have foreseen harm of this type to a person in the plaintiff''s position?
Proximity is contextual: expectations, representations, reliance, statutory framework, and the interests engaged.

Stage 2: Even if proximity exists, do residual policy considerations negate the duty? (Indeterminate liability; conflict with statutory duty; chilling effect on important conduct.)

Cooper itself denied a duty between a public regulator and individual investors. Hill v Hamilton-Wentworth (2007) recognised the tort of negligent investigation. Childs v Desormeaux (2006) declined social-host liability. Mustapha v Culligan (2008) addressed psychiatric injury foreseeability.

Established duty categories

Where the relationship falls within an established duty category, the Anns/Cooper analysis is short-circuited:

Manufacturer–consumer (Donoghue).
Driver–other road user.
Employer–employee.
Occupier–visitor.
Solicitor–client (in addition to fiduciary duty).

For these, the question is breach and causation, not duty.

Standard of care

The reasonable person in the defendant''s circumstances. Compliance with industry standards is evidence but not conclusive (ter Neuzen v Korn 1995).

For professionals, the standard is that of the reasonable professional in the same field (Lapointe v Hôpital Le Gardeur 1992). For learners, the standard is that of the qualified practitioner — not adjusted downward for inexperience (Joyal v Barsby 1965).

Causation

But-for is the basic test (Snell v Farrell 1990; Resurfice v Hanke 2007). In rare multi-tortfeasor cases where but-for cannot be established, material contribution to risk may substitute (Clements v Clements 2012).

Snell relaxes proof: causation can be inferred from the totality of evidence as a matter of common sense. The legal burden remains on the plaintiff.

Remoteness

Even if factual causation is established, recovery is limited to losses that were reasonably foreseeable (Mustapha; Wagon Mound No 1). The thin-skull rule applies once the threshold of foreseeability is crossed.

Damages

The 1978 trilogy (Andrews/Thornton/Lindal) structures personal-injury damages: future care, lost earning capacity, non-pecuniary loss (capped at $100,000 in 1978 dollars, now ~$435,000 indexed), special damages.

Defences

Contributory negligence (statutorily apportioned). Voluntary assumption of risk (volenti) — narrow, requires assumption of legal risk, not just physical risk. Illegality (ex turpi causa) — also narrow.

A complete analysis

For an exam: identify duty (established or novel — apply Anns/Cooper if novel); identify standard of care; identify breach (with reasons and evidence); identify factual causation (but-for, with Snell inference if needed); identify legal causation (Mustapha foreseeability); identify damages on the trilogy heads; address defences. Each step has its own case authority.