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Slide 5 of 39
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An action in negligence is available to anyone who has suffered injury by reason of the negligence of another. The plaintiff must establish:
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1. That a duty of care was owed by the wrongdoer to the plaintiff (i.e. that it was reasonably foreseeable that negligence on the part of the wrongdoer would cause injury to the plaintiff). Except in situations where the pollutant is deposited on the plaintiff's land, this is often difficult to prove in a pollution context;
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2. That the wrongdoer failed to exercise the standard of care expected of him/her (this is the objective standard of the reasonable man); and
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3. That the plaintiff has suffered damages as a consequence. (Damages are limited by concept of remoteness i.e. the damage must have been reasonably foreseeable).
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Pure economic loss not consequent upon damage property will not support an action in negligence.
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Except for clean up costs, damages are often difficult to prove in a pollution context. For example, how do you value a decrease in water quality?
