In order to prove that a defendant is negligent, a plaintiff must prove the elements of negligence, which are duty, breach, causation, and damages. This relationship between duty and negligence was at the essence of a famous U.K. court case (Donoghue v Stevenson, 1932). Since Donoghue, the whole world has become a neighbour online. Since Donoghue, the “neighbour” principle is extended to anywhere, any time. Today, everyone takes anywhere, any time for granted; the law has yet to catch up. This chapter describes recent attempts at preventing cyber-bullying through legislation and educational initiatives. There are many educational initiatives already in place about cyberbullying awareness and prevention: some federal, some provincial.
TopDuty Of Care
Schools have a duty of care to all students, to directly prevent and intervene with bullying amongst children and adolescents (Foody & Samara, 2018). Duty of care is the starting point for all negligence claims. In the much-cited case (Donoghue v Stevenson, 1932), Lord Atkin laid out “the neighbour principle” which created the modern law of negligence by establishing general principles of the duty of care.
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, 1932, 580)
The Paisley Snail
On 26 August 1928, Mrs. Donoghue drank a bottle of ginger beer at the Wellmeadow Café in Paisley, Scotland. A dead snail was in the bottle. She fell ill and sued the ginger beer manufacturer, David Stevenson, who ran the company that produced the ginger beer. The company was located less than a mile from the Wellmeadow Café. At trial, the House of Lords held that the manufacturer owed Mrs. Donoghue a duty of care, which was breached, because it was reasonably foreseeable that failure to ensure the product's safety would lead to harm to consumers. There was also a sufficiently proximate relationship between the consumer and product manufacturer. The neighbour principle was expanded by the House of Lords in a series of cases that culminated in Anns v. Merton London Borough Council (1977). In that case, Lord Wilberforce set out a two-stage test for determining duty of care:
First, one has to ask whether, if there is a sufficient relationship of proximity such that carelessness on the part of the former, may likely cause damage to the latter, then a prima facie duty of care arises.
Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which might negate, reduce, or limit the scope of the duty, or the class of person to whom it is owed, or the damages to which a breach of it may give rise.
Canada’s Duty of Care
Today, computer technologies provide people with new modes of human interaction, new relationships, and the tools by which these relationships function. In this context, Canada has established a three-step approach to duty of care, which plays-out as follows (Currie, 2004, p. 83):
- (1)
Determine whether harm to the plaintiff would have been a reasonably foreseeable result of the defendant’s actions;
- (2)
Scrutinize the proximity, the relationship between plaintiff and defendant for factors indicating ‘‘closeness’’, and making it ‘‘just and fair’’ to impose a duty of care; and
- (3)
Examine the policy factors external to the relationship to determine whether a prima facie duty of care arising from steps (1) and (2) should nonetheless be disallowed.