NEGLIGENCE(Unintentional Torts)

The elements of negligence:

** Negligence Negligence

* Duty of Care* Duty of Care

* Standard of Care * Standard of Care

* Foreseeability * Foreseeability

* “reasonable person”* “reasonable person”

* Causation : cause-in-fact / remoteness of damage* Causation : cause-in-fact / remoteness of damage

TYPES OF LIABILITY

Product Liability

(Donoghue v. Stevenson)(Donoghue v. Stevenson)-deals with negligence on the part of -deals with negligence on the part of

manufacturersmanufacturersManufacturers make sure:Manufacturers make sure:- design free of harmful defects, product is design free of harmful defects, product is

properly manufacturedproperly manufactured- consumer told how to use product safely, consumer told how to use product safely,

warned of any risks using the productwarned of any risks using the product

Occupier’s Liability

Responsibility of owners or renters to ensure that Responsibility of owners or renters to ensure that no one entering their premises is injured.no one entering their premises is injured.

Invitees ( invited on your property for a business Invitees ( invited on your property for a business purpose) and licensees ( a person with implied purpose) and licensees ( a person with implied permission to visit) are owed a standard of care.permission to visit) are owed a standard of care.

Trespassers ( on permission or legal right) are Trespassers ( on permission or legal right) are owed no standard of care, but cannot purposely be owed no standard of care, but cannot purposely be injured. Children are treated differently- injured. Children are treated differently- allurementallurement something that attracts children and something that attracts children and might result in harm.might result in harm.

Hosts

Someone who serves alcohol to guests or paying Someone who serves alcohol to guests or paying customers ( commercial or social hosts)customers ( commercial or social hosts)

It has been established that commercial hosts have It has been established that commercial hosts have a statutory duty of care to their patrons and others.a statutory duty of care to their patrons and others.

The recent ruling of the Supreme Court in the The recent ruling of the Supreme Court in the Childs v Zimmerman and Courier case was that Childs v Zimmerman and Courier case was that the social hosts were not responsible. ( However, the social hosts were not responsible. ( However, the possibility of social host liability was not the possibility of social host liability was not totally ruled out)totally ruled out)

Vicarious Liability

Legal responsibility for the negligence of Legal responsibility for the negligence of another person.another person.

Employers can be held responsible for the Employers can be held responsible for the actions of their employees, and parents for actions of their employees, and parents for the actions of their children. Car owners are the actions of their children. Car owners are liable for damages that result from the liable for damages that result from the negligent behaviour of anyone who drives negligent behaviour of anyone who drives the owner’s car.the owner’s car.

Motor Vehicle Negligence (379-380)Motor Vehicle Negligence (379-380) Professional / Medical Negligence ( 369-Professional / Medical Negligence ( 369-

370)370)

Strict Liability

Defendant is automatically liable for an Defendant is automatically liable for an injury caused by a dangerous substance or injury caused by a dangerous substance or activity even if the defendant was not activity even if the defendant was not negligent.negligent.

( fires, vicious animals, toxic wastes or ( fires, vicious animals, toxic wastes or fumes)fumes)

Children & Negligence

Children (or their parents/guardians) can be Children (or their parents/guardians) can be held liable for their actions. ( each case held liable for their actions. ( each case judged on its own facts - no clear laws)judged on its own facts - no clear laws)

Children must provide a duty and standard Children must provide a duty and standard of care expected from reasonable children of care expected from reasonable children of a similar age.of a similar age.

Parents are not automatically liable for their children’s torts; Parents are not automatically liable for their children’s torts; it must be shown that the proper standard of care was not it must be shown that the proper standard of care was not present.present.

Vicarious liability( the responsibility of one person for Vicarious liability( the responsibility of one person for another person’s action) states that parents are liable for another person’s action) states that parents are liable for accidents caused by children driving the family car, accidents caused by children driving the family car, snowmobile, etc.snowmobile, etc.

Parents may also be found liable if it can be shown that they Parents may also be found liable if it can be shown that they were not properly supervising their children (eg. cases were not properly supervising their children (eg. cases involving fire and guns).involving fire and guns).

Defences to Negligence

The most common defences against The most common defences against negligence are that:negligence are that:

a)a) Negligence did not existNegligence did not exist

b)b) The defendant did not owe plaintiff any duty of The defendant did not owe plaintiff any duty of carecare

Three commonly used defences…Three commonly used defences…

Contributory Negligence

In the past if the plaintiff was found to be in In the past if the plaintiff was found to be in any way at fault for an accident, their right any way at fault for an accident, their right to claim damages was denied.to claim damages was denied.

Presently, damages are apportioned Presently, damages are apportioned between the defendant and plaintiff if both between the defendant and plaintiff if both are in some way at fault.are in some way at fault.

The onus is on the defendant to prove that The onus is on the defendant to prove that the plaintiff was in some way responsiblethe plaintiff was in some way responsible

Voluntary Assumption of Risk

The defendant must prove that the plaintiff The defendant must prove that the plaintiff knew the possible risk involved in their knew the possible risk involved in their actions.actions.

Sports events - the spectator assumes the Sports events - the spectator assumes the risk merely by observing the event. Also risk merely by observing the event. Also used in cases where passengers were used in cases where passengers were injured by impaired drivers.injured by impaired drivers.

The onus is on the defendant to prove the The onus is on the defendant to prove the plaintiff was aware of the risk.plaintiff was aware of the risk.

Inevitable Accident

When an accident is a result of unavoidable When an accident is a result of unavoidable situations - No matter what precautions the situations - No matter what precautions the reasonable person would have taken, the reasonable person would have taken, the accident would have occurred.accident would have occurred.

Cannot foresee the accident happening.Cannot foresee the accident happening. Act of GodAct of God ExplanationExplanation

Statute of Limitations

A law that specifies the time within which A law that specifies the time within which legal action must be taken.legal action must be taken.

Expiry of the time period is a defence in tort Expiry of the time period is a defence in tort law.law.

Limitation periods differ depending on law Limitation periods differ depending on law of province and the type of defendant.of province and the type of defendant.