Tort and Professional Liability

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Tort and Professional Liability

• What is tort?
• Intentional and unintentional torts
• Special circumstances, e.g.,
• Children
• Occupier Liability
• Professionals and Experts

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What Is a Tort?

• A social wrong (not necessarily a crime)
• A civil wrong (between individuals)
• When an intentional or careless act harms another
• Injured party sues for monetary compensation

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What Is a Tort?

• Crimes are social wrongs that affect society as a
  whole
• Some crimes are also torts
• A tort is an inherently wrongful act that causes
  injury to another

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Remedies in tort

• Intentional torts
• Special (measurable)
• General (not measurable, e.g., pain)
• Punitive
• Unintentional torts
• Special or general (not punitive)

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Remedies in tort contd

• Damages monetary compensation
• Equitable Remedies (non-monetary)
• Injunction
• Interlocutory (interim) injunction v. permanent
  injunction
• Specific performance
• Accounting (forego and redistribute profits)
• Quantum meruit

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Criminal and Contract Remedies

• Criminal
• punishment, protection, rehabilitation
• Contract
• Compensation
• Performance
• Rectification (to fix)
• Rescission (to return to the beginning)

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Intentional Torts

• Intentional conduct that causes injury
• Examples
• Assault and Battery
• Trespass to Land
• False Imprisonment
• Nuisance
• Defamation
• Courts may award punitive damages

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Other Business Torts

• Inducing breach of contract
• Deceit
• Conversion
• Passing off action
• Injurious falsehood

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Intentional Torts

• Assault and Battery
• Assault - where there is fear of contact
• Battery - least touching in anger
• Defences
• 1. Accident, not a mistake
• 2. Consent (informed)
• 3. Self-defence (reasonable force)

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Trespass to Land

• Being on anothers land without authority
• permission implied for business offering public
  services
• Occupier owes only minimal duty to trespasser
• Continuing trespass remedied by injunction

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False Imprisonment

• The unlawful and intentional restraint of a
  person against his/her will
• Restraint must be total
• Victim must submit or be forced to comply

• Restraint may be justified if the person has done
  something s/he can be arrested for.
• Remedies special, general and punitive damages

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False Imprisonment contd

• Shoplifting - prove
• Selection,
• Concealment,
• Continuity,
• Not paid for.

• Defense-
• Voluntary, but..
• Must be real, not out of fear or embarrassment

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Public or Private Nuisance

• Public nuisance affects public in general
• Private nuisance interferes with anothers use of
  his/her property
• Strict liability for inherently dangerous
  situations or products

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Defamation

• A false statement about someone to his/her
  detriment - must be published or broadcast
• Slander - spoken defamation
• Libel - written defamation

Continued ...
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Defamation/2

• Defences
• Truth
• Absolute Privilege
• Qualified Privilege
• Fair Comment,
• In the public interest
• Factual
• Not malicious

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Intentional Tort Cases

• Ward v. Clark (2000)
• Kovacs. Ontario Jockey Club
• Douglas Cattle Co. v. Mount Paul Golf Course Inc.
• Horton v. Speta

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Privacy

• Privacy protection provided by statute law B.C.
  F. of I. and P.O.P. Act
• Personal Information Protection and Electronic
  Documents Act
• Regulates collection and use of private
  information
• Provides a model code

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Negligence

• Inadvertent, careless conduct that causes injury
  to another
• Important area of tort liability for professionals

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Negligence big picture

• N D S B C (I or D)
• D duty of care exists
• S standard of care
• B breach of the standard
• C causation breach injury
• I or D injury or damage resulted

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Negligence big picture

• Reasonable person test
• Limits on liability
• Waiver of rights
• Voluntary assumption of risks
• Contributory negligence
• remoteness

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Negligence types of liability

• Personal
• Vicarious
• Product
• Occupier
• Strict liability or Res Ipsa Loquitur

• Negligent Misstatement or Misrepresentation
• Innkeeper
• Expert
• Professional
• Child

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Negligence/2

• Essential Elements
• Existence of a duty of care
• Breach of that duty
• Injury or damage reasonably
  foreseeable
• The act caused the injury
• No contributory negligence

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Reasonable Person Test

• Reasonable person is a prudent person exercising
  care
• conduct falling between average and perfect

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Is a Duty Owed?

• Reasonable Foreseeability Test
• If it would be apparent to a prudent person that
  the conduct was likely to cause injury - duty is
  owed.
• We owe a duty to anyone we can reasonably
  anticipate might be harmed by our conduct
• Is there any reason to reduce or eliminate this
  duty? (Anns case)

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Case Summary

• Donoghue v Stevenson set several precedents in
  the law of negligence
• the test to determine the existence of a duty
• product liability - manufacturer owes a duty to
  customer
• privity of contract may not defeat an action for
  negligence in product liability cases

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Duty of Care

• Misfeasance
• an act that causes harm to another
• court will provide remedy
• Nonfeasance
• a failure to prevent an injury
• courts reluctant to provide remedy
• If a person attempts to help, there is a duty to
  exercise reasonable care

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Standard of Conduct

• What would a reasonable person have done in the
  circumstances?
• Actions that fall below socially acceptable
  standards create liability for damages
• Risk - The greater the risk of injury, the higher
  the standard

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Question For Discussion

• Social Host Liability
• Case law commercial and private hosts are
  liable if alcohol is served
• What is the standard of care?

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Liability of Children

• Children liable for their torts
• standard is that of a reasonable child of that
  age
• Parents not generally responsible for their
  childrens torts
• except where there is obvious failure to
  control, instruct or supervise

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Special Situations

• Obligations of occupier of property to
• invitees
• licensees
• trespassers Note Occupiers Liability Acts
• Duties of Innkeepers
• safeguard property of guests
• post Section 3 of Innkeepers Act
• prevent guests from becoming intoxicated

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Occupiers Liability Act

• Duty of care
• Condition of premises
• Activities on premises
• 3rd party conduct
• Reckless disregard if trespasser or voluntary
  assumption of risk
• May be higher duty to some, e.g., disabled

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Occupiers Liability contd

• Defenses (in the Act)
• Voluntary assumption of risk
• Trespassers
• Offered free access and no accommodation for
  recreational use
• Plus waiver, contributory negligence, remoteness

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Negligent Misstatement

• Courts will award compensation when negligent
  words cause financial loss.
• Plaintiff must prove
• Negligence
• Reliance
• Causation
• Harm

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Strict and Vicarious Liability

• Liability when there is no fault
• A dangerous (but lawful) situation
• Unusual use of property, e.g, water, animals
• owner/occupier is liable
• Res Ipsa Loquitor
• Case Robinson v. Madison
• Vicarious liability

Continued ...
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Loss or Injury

• must show injury
• Includes
• economic loss
• mental disorder but not simply mental distress

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Causation

• The injury must be a direct result of the
  careless conduct
• But for test (a defense) - but for the conduct
  of the plaintiff, no injury would have resulted

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Defences

• Remoteness Test
• Was the injury reasonably foreseeable?
• Test established in Anns case applied
• Thin skull rule a weaker condition, no defense
• Crumbling skull rule an inevitable condition, a
  good defense

Continued ...
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Defences contd

• Contributory negligence
• plaintiff partially responsible for own loss
• last clear chance doctrine
• Negligence Act - apportion responsibility

Continued ...
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Defences contd

• Voluntarily assuming the risk
• a person who volunteers to enter a situation
  where the risk of injury is obvious cannot
  recover damages
• Occupiers Liability Act
• Volunteer must clearly absolve occupier
• Does not apply to work-related accidents

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Defences contd

• Waivers or disclaimers
• Specific conditions
• Clear wording
• Mention negligence
• Proper notice
• Freedom to sign
• In writing
• Signed (preferably) or brought to attention

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Defenses contd

• Waivers contd
• In contracts exemption or exculpatory or
  exclusion clauses
• Must be clear, proper notice, necessity of utmost
  good faith
• Parent cannot waive childs rights to sue
• Child may sue at age of majority

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Product Liability

• Manufacturers are liable for injuries if
  defective products
• Plaintiff must prove negligence
• Breach of manufacturers duty can be implied from
  circumstances
• Manufacturers must warn of dangers

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Liability of Experts

• Professionals and experts held to a high standard
• Skills of a professional in that field
• Reasonable person test
• Inexperience no excuse
• Following common practice (if objectively
  careless) may not be a defense
• Case Delaney v. Cascade River Holidays Ltd

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Professional Liability

• Duty often set out in contract
• But tort liability requires a reasonable
  standard of performance
• Also Fiduciary duty
• Good faith,
• loyalty,
• disclose information,
• safeguard entrusted funds
• Courts may extend liability to parties outside of
  the contract

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Due diligence

• the level of judgment, care, prudence,
  determination and activity a person be expected
  to do under the particular circumstances
• To prevent when danger exists
• Claiming due diligence is a legal defense
• I.e., took reasonable precautions

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Due Diligence program

• Written policies
• Monitor and enforce
• Train and staff appropriately
• Document disciplinary or corrective action
• Incident reporting
• Involve all staff in an on-going program

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Insurance

• Often a condition of practice for professionals
• Protects against damages resulting from errors
  and omissions
• Premiums can be a significant
• May cover legal costs when sued

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Professional Disciplinary Bodies

• Some exercise significant control over members
• membership required
• power to levy penalties and suspend
• Activities regulated by administrative law
• Charter rights apply
• Compliance with human rights legislation required