Negligence and Unintentional Torts

What is a Tort?

• Damage to property or a personal injury caused by another person is a civil wrong called a tort

• Tort Law holds persons, private organizations, and governments responsible for damages and injuries

• Unintentional Torts – injuries that are the result of an accident or an action that was not intended to cause harm

NegligenceThe most common type of unintentional tort

Occurs when you Cause injury to someone in a situation where you should have known your actions could cause harm

Negligence - factors

• Stage 1 – Duty of Care– The obligation to avoid careless actions that could

cause harm to one or more persons.– Neighbour principle

• The legal responsibility to owe a duty of care not to harm one's neighbour by being careless or negligent

• Your neighbour is anyone who you can reasonably foresee being injured by your actions

• Foresee ability – being aware that your actions could cause injury to someone

Negligence – factorsStage 2 – Standard of Care

if a duty of care is owed to a “neighbour”, to what extent is that duty required?What would a reasonable person do in a similar

circumstances?A reasonable person is considered to be an ordinary person

of normal intelligenceProfessional liability – specialised standard of care

People with specialised skills or training have a higher standard of care with respect to their field of expertise

A reasonable person with the same specialised trainingMedical negligence

Patients much give voluntary , informed consent in normal circumstances before a doctor can perform any medical procedure or test

Negligence – factors

• Stage 2 – Standard of Care– Children

• Special status under the law• Children under the age of 6 are rarely found liable for their

actions as they are believed to be too young to foresee the consequences

• Children over the age of 6 – courts consider their age, intelligence, life experience and what another child of similar age and intelligence would have done under similar circumstances

• Adult activities – i.e. driving a motor vehicle – child is responsible for the same standard of care as an adult

Negligence – factors

• Stage 2 – Standard of Care– Parental Responsibility

• Parents are not automatically liable for their children’s actions

• Can be held responsible if they fail to supervise or train their children

• Certain provinces have laws that hold parents responsible for torts committed by their children

– Parents may need to prove that they acted responsibly in order to not have to pay damages

• Children can sue their parents if the parent acted irresponsibly

Negligence – factors

• Stage 2 – Standard of Care– Rescuers

Good Samaritan laws generally hold the standard of care for rescuers to a lower standard than other situations

Person who was negligent in his/hers actions and caused the situation owes a duty of care to both the victim and the rescuer

Negligence – factors• Stage 3 – Causation

– Cause-in-Fact• “but for” test – i.e. the injury would not have occurred “but

for” the defendant’s actions– Apportionment

• The division of fault among wrongdoers– Remoteness of Damage

• Harm that could not have been foreseen due to a lack of close connection between the wrong and the injury

– Intervening act• An unforeseeable event that interrupts the chain of events

started by the defendant.

Negligence – factors

• Stage 3 – Causation– Thin-Skull rule

• Defendant is liable for all damages caused by negligence despite any pre-existing conditions that make the plaintiff more prone to injury

Special Types of Liability

• Product Liability– Manufacturers have to meet a higher standard of

care in order to prevent injury to consumers of their products

• Product must be free of harmful defects• Product is properly manufactured• Consumer must be properly informed about how to

use the product safely• Consumer must be warned about the risks associated

with using the product

Special Types of LiabilityOccupiers’ Liability

People who own or occupy a property have a duty to maintain their property so that no one entering the premises is injured

Standard of care is dependent on the kind of visitorInvitee (highest standard of care)

– Person invited onto the premises for a business purposeLicensee

– Social visitor such as a friendOften the first two categories are combinedTrespasser

– No legal right to be on your property– Children who trespass are treated differently than adults

(allurement)

Special Types of Liability

• Hosts– People who serve alcohol to their guests

• Commercial hosts have a statutory duty of care to their patrons and anyone who may be injured by their patrons’ negligent driving

• Social hosts law is developing

Special Types of Liability• Vicarious Liability

– Legal responsibility for the negligence of another person• Employer may be responsible for the actions of the employees

• Automobile Negligence– Negligence as a result of the operation of a motor vehicle– Usually covered by liability insurance

• Strict Liability– Defendant is automatically liable for any injury caused by a

dangerous substance or activity• Animal control laws• Pollution

Defences to NegligenceDid not owe a duty of careMet the standard of careYour actions did not cause the injury/damage

Contributory NegligencePlaintiff contributed to the injury by displaying unreasonable

conductVoluntary Assumption of Risk

Plaintiff knowingly and willingly assumed the potential risks normally associated with the activity

May have to sign a waiver before being permitted to participateSigning a waiver does not automatically exempt the defendant from

liability

Defences to Negligence• Other Defences

– Inevitable accident• Accident was unavoidable due to an uncontrollable

event

– Act of God– Accident caused buy an extraordinary, unexpected natural

event

– Explanation• Accident occurred for a valid reason even though the

defendant took every precaution

Statute of LimitationsPeople must sue for damages within a reasonable time