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Alicia and Bob live together as a happy couple, until one night they break up and Alice throws all of Bob’s stuff onto the curb while he is still out. He comes back to find it all there, but she didn’t give him any warning or opportunities to make arrangements for securing it outside of their until-then shared home. Upon arriving home and seeing it after rushing there in response to her text message informing him that he should find a new place to store his stuff in and to live beginning that night, he initially goes into a panic because probabilistically the odds of his more valuable possessions surviving even just 10 minutes left unsecured on the pavement in that area are very slim. He very hurriedly takes an inventory of all of his items in the freezing cold, and luckily finds that all of his belongings are there, intact.

Charles goes into a railway station with his fancy and expensive Segway, which he normally finds a way to ride and nestle into a space between two bike rails before chaining it up. But he is suffering from severe diarrhoea, and is busting for a toilet so he brings his Segway into the station with him before realising that it will perhaps not fit into the door of the toilets with him, and so he chains it to a bare bumper railing that is built into the edge of the floor of the railway station, apparently to protect the dividing rails from luggage trolleys before going into the toilet to relieve his bursting bowels. Upon emerging from his painful 15 minute episode on the toilet, he sees that his Segway is gone, thinking that the station staff must have cut his chain and removed it.

Upon inquiring, he is told that it has been dumped outside on the pavement, unsecured for anyone to help themselves to, and this in a rough part of town where thefts may be expected as common place.

It seems to me that in both of these cases there are two elements of possible liability, respectively in:

  • liability to damages for the momentary fright and panic, caused by Alicia and the station staff and actually subjectively experienced by their respective victims of Bob/Charles, between finding that their belongings had been left outside unsecured and then ascertaining that they were in fact still there, and

  • the objective danger/risk of loss of their items inflicted by these defendants’ negligence.

I assume for this question that while Alicia may been entitled to expel Bob from the residence, and the station staff might have been entitled to remove Charle’s Segway, they were still under a basic duty of reasonable care to Bob and Charles to do it in a way that ensured that they would have a reasonable opportunity to collect their items from these parties without losing the items to theft or damage either from criminals or the elements, which basic duty in both cases they neglected.

I’m more interested in the element of the (in both cases, luckily unrealised) risk inflicted by these tortfeasors onto their victims, but also interested in the former factor of the subjective/emotional panic caused to the two victims by the wrongfully imposed, if luckily unrealised, objective risk.

Can damages be assessed for wrongful subjection of a plaintiff to unnecessary risk through a tortfeasor’s negligence?

1 Answer 1

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Can damages be assessed for wrongful subjection of a plaintiff to unnecessary risk through a tortfeasor’s negligence?

No.

There is no tort based in negligence for which damages are awarded without actual loss being established and shown to have been caused by the wrong.

As previously discussed in several answers, there are other torts where an award can be made without proof of damage: Are there causes of action for which an award can be made without proof of damage?

But in negligence, people are not compensated for almost being injured. The law of negligence did not develop to compensate people for risk that people experience in their daily activities. It isn't a source of hazard pay. It developed to compensate people for the harm caused by those who owe them a duty to avoid causing that harm.

"Proof of negligence in the air, so to speak, will not do" (Palsgraf v. Long Island Railroad Co., 248 NY 339 (1928), Justice Cardozo).

And to be clear, injury includes psychological injury. Psychological injury is not an almost-injury; it's an injury. See Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 at paragraphs 8-9: "Generally, a plaintiff who suffers personal injury will be found to have suffered damage. Damage for purposes of this inquiry includes psychological injury. ... This said, psychological disturbance that rises to the level of personal injury must be distinguished from psychological upset. Personal injury at law connotes serious trauma or illness. ... The law does not recognize upset, disgust, anxiety, agitation or other mental states that fall short of injury."

There is one area in negligence that might in first glance appear to be an award for unrealized loss. This is where a portion of the damage award is for future not-yet-realized losses (for example, to income, or for medical care). See Athey v. Leonati, [1996] 3 S.C.R. 458, para. 27. However, in these cases, an injury is actually proved, and there is more future harm in the wait; its magnitude just is not known. Where the loss is completely avoided, even if by acts of the would-be wronged party, then there is no cause of action in negligence. In fact, if the wronged party had the opportunity to avoid the loss but did nothing, that would severely cut against the harm being attributable to the initial wrong-doer—either through a theory of contributory negligence or the duty to mitigate.

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