NEGLIGENCE (Unintentional Torts)

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NEGLIGENCE(Unintentional Torts)

• See Chapter 14

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The elements of negligence

• Negligence
• Duty of Care
• Standard of Care
• Foreseeability
• reasonable person
• Causation cause-in-fact / remoteness of
  damage

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TYPES OF LIABILITY
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Product Liability

• (Donoghue v. Stevenson)
• -deals with negligence on the part of
  manufacturers
• Manufacturers make sure
• design free of harmful defects, product is
  properly manufactured
• consumer told how to use product safely, warned
  of any risks using the product

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Occupiers Liability

• Responsibility of owners or renters to ensure
  that no one entering their premises is injured.
• Invitees ( invited on your property for a
  business purpose) and licensees ( a person with
  implied permission to visit) are owed a standard
  of care.
• Trespassers ( on permission or legal right) are
  owed no standard of care, but cannot purposely be
  injured. Children are treated differently-
  allurement something that attracts children and
  might result in harm.

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Hosts

• Someone who serves alcohol to guests or paying
  customers ( commercial or social hosts)
• It has been established that commercial hosts
  have a statutory duty of care to their patrons
  and others.
• The recent ruling of the Supreme Court in the
  Childs v Zimmerman and Courier case was that the
  social hosts were not responsible. ( However, the
  possibility of social host liability was not
  totally ruled out)

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Vicarious Liability

• Legal responsibility for the negligence of
  another person.
• Employers can be held responsible for the actions
  of their employees, and parents for the actions
  of their children. Car owners are liable for
  damages that result from the negligent behaviour
  of anyone who drives the owners car.

8

• Motor Vehicle Negligence (379-380)
• Professional / Medical Negligence ( 369-370)

9
Strict Liability

• Defendant is automatically liable for an injury
  caused by a dangerous substance or activity even
  if the defendant was not negligent.
• ( fires, vicious animals, toxic wastes or fumes)

10
Children Negligence

• Children (or their parents/guardians) can be held
  liable for their actions. ( each case judged on
  its own facts - no clear laws)
• Children must provide a duty and standard of care
  expected from reasonable children of a similar
  age.

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• Parents are not automatically liable for their
  childrens torts it must be shown that the
  proper standard of care was not present.
• Vicarious liability( the responsibility of one
  person for another persons action) states that
  parents are liable for accidents caused by
  children driving the family car, snowmobile, etc.
• Parents may also be found liable if it can be
  shown that they were not properly supervising
  their children (eg. cases involving fire and
  guns).

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Defences to Negligence

• The most common defences against negligence are
  that
• Negligence did not exist
• The defendant did not owe plaintiff any duty of
  care
• Three commonly used defences

13
Contributory Negligence

• In the past if the plaintiff was found to be in
  any way at fault for an accident, their right to
  claim damages was denied.
• Presently, damages are apportioned between the
  defendant and plaintiff if both are in some way
  at fault.
• The onus is on the defendant to prove that the
  plaintiff was in some way responsible

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Voluntary Assumption of Risk

• The defendant must prove that the plaintiff knew
  the possible risk involved in their actions.
• Sports events - the spectator assumes the risk
  merely by observing the event. Also used in cases
  where passengers were injured by impaired
  drivers.
• The onus is on the defendant to prove the
  plaintiff was aware of the risk.

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Inevitable Accident

• When an accident is a result of unavoidable
  situations - No matter what precautions the
  reasonable person would have taken, the accident
  would have occurred.
• Cannot foresee the accident happening.
• Act of God
• Explanation

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Statute of Limitations

• A law that specifies the time within which legal
  action must be taken.
• Expiry of the time period is a defence in tort
  law.
• Limitation periods differ depending on law of
  province and the type of defendant.