A cause of action in negligence has multiple elements which must be proved in order for the action to succeed.
Each of these elements functions to limit the scope of liability, separating those acts that will give rise to liability from those that will not. For example, the standard of care limits liability to those defendants whose conduct falls below the standard reasonably expected of them by the law.
Another important element in a negligence action is the duty of care. If the standard of care answers the question of what conduct will give rise to liability, then the duty of care answers the question of which persons can recover for the negligent conduct of others.
The duty of care essentially limits the number of people who can recover for a given incident of negligence . Absent such a concept of duty, any number of persons could recover for the negligence of a given defendant, even if those people had little to no connection to the negligent actor.
So, to whom will a given defendant owe a duty of care?
Important to this question is the concept of reasonable foreseeability, which underlies the classic common law statement of the scope of the duty of care:
“The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be—persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question” (Donoghue v. Stevenson  A.C. 562).
This general statement has served as a jumping-off point for future jurisprudence determining the duty of care in negligence .
Indeed, the current Canadian approach, as represented by cases such as Cooper v. Hobart 2001 SCC 79 (“Cooper”) and Edwards v. Law Society of Upper Canada  SCC 80 (“Edwards”), retains much of the spirit of the classic statement.
The current Canadian approach involves two stages, the first of which asks whether a prima facie duty of care is established, and the second asking whether such a duty, if established, should be negated by residual policy reasons (Edwards, paras 9-10).
The first stage (asking whether circumstances disclose a prima facie duty of care) is further subdivided into two parts.
The first part of stage one asks whether there are prior cases analogous to the one at hand in which sufficient proximity justified the imposition of a duty of care (Edwards, para 9).
The second part of stage one, which must be consulted if no prior analogous cases exist, asks whether a new duty of care should be recognized in the circumstances. Here, the imposition of a duty of care requires not only foreseeability, but also proximity (Edwards, para 9).
Proximity will exist where the defendant is in a close and direct relationship to the plaintiff justifying the establishment of a duty of care in the circumstances (Edwards, para 9).
The question of proximity focuses on factors arising from the relationship between the plaintiff and defendant, and include questions of policy (Cooper, para 30).
If stage one is satisfied, either because there are prior analogous cases or because foreseeability and proximity justify recognition of a new duty of care in the circumstances, then the analysis proceeds to stage two.
The second stage (which asks whether there are residual policy concerns negating the prima facie duty of care) focuses on policy factors that are, unlike the factors consulted in stage one of the analysis, outside of the relationship between the plaintiff and defendant (Cooper, para 30). These policy factors involve consideration of the effects, on other legal obligations, of recognizing a duty of care, and consideration of the effects on the legal system and society in general (Cooper, para 37).
The second stage of the test is satisfied where there are no overriding policy considerations that would negate the duty of care (Cooper, para 38).
In conclusion, an action for negligence will only succeed if the defendant owed a duty of care to the plaintiff. If no duty is owed, then the defendant will not be liable, even if his conduct falls below the standard of care.
A duty of care will be owed upon satisfaction of the two-stage test from Edwards and Cooper. Stage one of the test will be satisfied either where there are prior cases analogous to the case at hand in which a duty of care was established, or where, despite a lack of analogous cases, there is sufficient foreseeability and proximity to justify an imposition of a duty of care in the circumstances.
The second stage of the test will be satisfied where there are no residual policy concerns (outside of the relationship between the plaintiff and defendant) that would negate the duty of care established at stage one.