The Law of Negligence: Value-ridden law

Duty of care, standards of care, proximity, reasonable foreseeability, risk of harm. Words we see in the law of negligence. This area of law has its foundations in important values: fairness, justice but also accountability ,but not to the point of indeterminate liability. Accountability for many: Lawyers, Engineers, Architects, Police Officers, drivers of vehicles and the list goes on and on. We value accountability/responsibility in our society. We are human , we make mistakes. But when we make mistakes that are reasonably foreseeable we value holding the defendant to reasonable standards of accountability. Our society depends heavily on the responsibility/accountability of others.

At the same time, we balance our value of accountability with other values such as fairness. If there is no causation of harm, there should be no liability. If a defendant has not been perfect but has acted reasonably we know that people are not perfect and we value not holding people to this perfect standard. We all make mistakes.

Our values of accountability extend to all types of harm. Physical harm, Property damage, Psychological injury, Pure economic loss. And we place a value in sharing the blame/loss : multiple tort defendants and joint and several liability and contributory negligence.

The categories of Negligence are not closed. Our law has left open the doors to the development of new torts. And we have a framework in the Anns test for assessing whether in law we should recognize new duties of care. They say the Charter of Rights and Freedoms is like a living tree which develops in time and Negligence law also has living roots. No doubt policy considerations come into play at the appropriate stage in the Anns test but as our laws change and develop one thing will always be our guiding force: Our values.*

William Poulos, Barrister
*This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on the specific circumstances of your case.

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