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Reasonably Foreseeable:
Remoteness Principles Regarding a View to Risk of Harm
Question: What does foreseeability mean in a negligence lawsuit?
Answer: In a negligence lawsuit, foreseeability refers to whether the harm resulting from certain conduct could reasonably be anticipated as a possibility by a person of ordinary intelligence. It is a crucial element in determining if the defendant failed to exercise proper care. The Supreme Court rulings in Rankin v. J.J., [2018] 1 S.C.R. 587, and Mustapha v. Culligan, [2008] 2 S.C.R. 114, emphasize that foreseeability is assessed from the perspective of reasonable foresight rather than hindsight. Seeking legal guidance can help clarify these complex principles in your specific situation.
When Foreseeability Is Referred to Within a Negligence Lawsuit, What Does Foreseeability Mean?
Foreseeability Involves the Review of Whether An Incident That Resulted In Harm Was Something That a Reasonable Person Could Think of As Having a Possibility of Occurring.
Understanding Reasonable Foreseeability Including Remoteness Principles Regarding Risk of Causing Harm
In negligence law, the principle of reasonable foreseeability applies. Simply put, reasonable foreseeability means the common sense thinking ahead and understanding of what might happen as a result of certain conduct. As the core definition of negligence involves the failure to do, or avoid doing, what a reasonably acting person who do, or would avoid doing, an understanding of what a reasonably acting person might perceive as posing a risk is required.
The Law
As per the cases of Rankin (Rankin’s Garage & Sales) v. J.J., [2018] 1 S.C.R. 587, and Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114, the Supreme Court explained reasonable foreseeability and remoteness principles by stating:
[53] Whether or not something is “reasonably foreseeable” is an objective test. The analysis is focussed on whether someone in the defendant’s position ought reasonably to have foreseen the harm rather than whether the specific defendant did. Courts should be vigilant in ensuring that the analysis is not clouded by the fact that the event in question actually did occur. The question is properly focussed on whether foreseeability was present prior to the incident occurring and not with the aid of 20/20 hindsight: L. N. Klar and C.S.G. Jefferies, Tort Law (6th ed. 2017), at p. 212.
[12] The remoteness inquiry asks whether “the harm [is] too unrelated to the wrongful conduct to hold the defendant fairly liable” (Linden and Feldthusen, at p. 360). Since The Wagon Mound (No. 1), the principle has been that “it is the foresight of the reasonable man which alone can determine responsibility” (Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co., [1961] A.C. 388 (P.C.), at p. 424).
[13] Much has been written on how probable or likely a harm needs to be in order to be considered reasonably foreseeable. The parties raise the question of whether a reasonably foreseeable harm is one whose occurrence is probable or merely possible. In my view, these terms are misleading. Any harm which has actually occurred is “possible”; it is therefore clear that possibility alone does not provide a meaningful standard for the application of reasonable foreseeability. The degree of probability that would satisfy the reasonable foreseeability requirement was described in The Wagon Mound (No. 2) as a “real risk”, i.e. “one which would occur to the mind of a reasonable man in the position of the defendan[t] . . . and which he would not brush aside as far-fetched” (Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty., [1967] A.C. 617 (P.C.), at p. 643).
[14] The remoteness inquiry depends not only upon the degree of probability required to meet the reasonable foreseeability requirement, but also upon whether or not the plaintiff is considered objectively or subjectively. One of the questions that arose in this case was whether, in judging whether the personal injury was foreseeable, one looks at a person of “ordinary fortitude” or at a particular plaintiff with his or her particular vulnerabilities. This question may be acute in claims for mental injury, since there is a wide variation in how particular people respond to particular stressors. The law has consistently held — albeit within the duty of care analysis — that the question is what a person of ordinary fortitude would suffer: see White v. Chief Constable of South Yorkshire Police, [1998] 3 W.L.R. 1509 (H.L.); Devji v. Burnaby (District) (1999), 180 D.L.R. (4th) 205, 1999 BCCA 599; Vanek. As stated in White, at p. 1512: “The law expects reasonable fortitude and robustness of its citizens and will not impose liability for the exceptional frailty of certain individuals.”
As explained in Rankin and Mustapha, foreseeability involves whether a person of similar intellectual fortitude could reasonably anticipate that certain conduct could result in the occurrence of harm to another person. Moreover, according to the principles established in Rankin and Mustapha, when evaluating whether harm was foreseeable, a court should approach the situation from the perspective of foresight before the incident occurred rather than in hindsight after the incident occurred.
Summary Comment
Negligence law involves the scrutiny of whether an individual acted without proper care and should be held accountable for the harm caused to another person. A component of the scrutiny into whether actions were without proper care involves the inquiry into whether the harm caused could be rationally seen as a possibility. If the harm was rationally unforeseeable, then negligence failed to occur.
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