Chapter 12

Negligence and Intent Negligence Intentional tort The action is unintentional It is unplanned An injury results Intentional tort Deliberately causes harm or loss to another person Intent - is the true purpose of an act

Duty of Care Breach of Duty of Care Reasonable person You have a duty when a legal duty has been placed on you; you must not cause harm to people Breach of Duty of Care Happens when someone fails to meet the expected standard of care of a reasonable person Reasonable person No physical or developmental disabilities Is careful, thoughtful, and considerate of other people in all dealings

Minors – Duty of Care Foreseeability Causation A minor is anyone under the age of 18 the older a minor is, the more responsibility they have Minors involved in adult activities (ex. Driving a car) are expected to meet an adults duty of care Foreseeability Would a responsible person foreseen the injury to the victim Causation Direct connection between the defendant’s negligent act and the Plaintiff’s claim

Actual Harm or Loss Burden of Proof The plaintiff must prove that real harm or loss occurred because of the defendant's negligence Burden of Proof Plaintiff is responsible for the burden of proof Defendant can present evidence that the plaintiff did not suffer any harm or the harm was not foreseeable Rule on the balance of probabilities

Defences for Negligence Contributory Negligence Plaintiff has some responsible for the injury or harm to the himself/herself Defendant is only responsible for the percentage they are negligent Voluntary Assumption of Risk The plaintiff clearly knew the risks, and made the choice to assume those risks Inevitable Accident Unavoidable situation resulting in injury or loss

Occupiers An occupier is any person who has control and physical possession of a property and who owes a duty of care to make the property safe for people. Invitees Any person other than a social visit Ex. Students attending school, service personal making repairs, etc. High level of care of invitee as he/she will likely conduct business Licensees Enters the property with the implied permission of the occupier Ex. A friend coming over for dinner A lesser standard of care for invitee since there is no economic benefit

Occupiers Liability Acts Trespassers Trespasser is a person who enters a property without permission of a legal right to be there. Occupiers must exercise a reasonable standard of care once they know of the trespassers presence Allurements to children requires special duty and precautions Occupiers Liability Acts Due to the grey area determining if someone is an invitee or licensee, in many provinces Occupiers Liability Acts have been created, providing an equal standard of care for all visitors, regardless if they are invitees or licensees.

Commercial and Social host Invitees Bars and social hosts are responsible for any results of someone who is intoxicated, as they cannot consider the duty of care for themselves, let alone anyone else. Based on precedent, a social host will only be held liable for injuries that are reasonably foreseeable as a result of the activity that takes place on the host’s property

Motor Vehicle Negligence Burden of proof has been shifted to the defendant in some motor vehicle cases If both drivers are responsible for the accident, liability will be spilt between them Motor vehicle accidents often involve contributory negligence The driver is liable for the safety of the passengers, however, a passenger who accepts a ride with someone who is intoxicated or drives dangerously (ex. Speeding) have voluntarily accepted the risk of riding in the vehicle

Seat belts greatly reduce injuries, therefore, judges are ruling contributory negligence if someone fails to ”buckle up”. Damages are being reduced by 15% to 40%, even if the accident is 100% the other drivers fault. Vicarious Liability – holding a blameless person responsible for the misconduct of another Owner and driver of the vehicle are both liable for negligence

Professional Negligence “Professionals” have a certain level and standard of care based on their knowledge and the publics expectation The more specialized and qualified, the higher the standard of care is expected Ex. Doctor, Engineers, Architects, Accountants, Lawyers, etc.

Medical Negligence Any doctor who agrees to provide any medical service has a duty of care to meet reasonable standard of care If a doctor fails to meet this standard, it is medical negligence Doctors are required to inform the patient of their medical condition, their treatment options, and risks involved A doctors ignorance of a particular risk may not be a successful defence If the patient lacks sufficient information to give informed consent the doctor may be liable for negligence

Assault and Battery False Imprisonment Assault occurs when the victim has reason to believe or fear that bodily harm may occur Battery is the follow-through of assault and is the most common trespass to another person Kissing or hugging someone without the person’s consent can be battery False Imprisonment Confining or restraining a person without consent in a specific area Confinement must be through physical restraint, barriers, or legal authority A plaintiff must attempt every means of reasonable escape before bringing action of false imprisionment

Trespass to land Nuisance Is the act of entering and crossing another person’s land without permission or legal authority Throwing something or bringing an object and not removing it is also trespassing Can’t dig or go under someone’s property Nuisance One person’s unreasonable use of land that interferes with another person’s use and enjoyment of adjoining lands Ex. Pollution, odors, noise,

Defences for Trespass Consent Self-Defence Defence of Others Most commonly used with trespass to the person Self-Defence As long as the force used is not excessive and is reasonable Provocation is not a defence Defence of Others Third party can come to the aid of a person if it is reasonable to assume that the person is in some degree of immediate danger

Defence of Property Legal Authority Necessity Owners may use reasonable force to eject intruders from their property Owner must first ask the trespasser to leave, unless the trespasser made a forcible entry, then no request to leave is required Legal Authority Certain individuals (ex. Police) have the legal authority to do what otherwise would be considered assault and battery or false imprisonment Necessity A defendant may be excused from trespassing if the action is strictly necessary

Defamation of Character Defamation is an unjustified or untrue attack on a person’s reputation Slander Defamation through spoken words, sounds, physical gestures or facial expressions Libel Defamation through a more permanent visual or audible form than slander Ex. TV, Radio, Newspaper

Defences for Defamation Truth Prove the statements are true Absolute Privilege Members of parliament, members of provincial legislatures, and all persons participating in courts, etc. are given absolute privilege, however they are liable if they repeat it outside the protected location They can male statements openly, honestly, and freely

Qualified Privilege Fair Comment Required to express their opinions during the course of their work are protected Purpose is to encourage free speech on matters of public importance Statements must be made in good faith, without malice Fair Comment Right to openly and honestly criticize (ex. media) However, if the comments prove to malicious, then the defendant can be held liable for their comments

Insurance Motor Vehicle Liability Insurance Liability Insurance People directly involved and people not directly involved (ex. family member) can sue for damages Most vehicle insurance is third-party liability, because 3 parties are involved when a claim is made No-fault insurance has been implemented in many provinces Liability Insurance Many businesses purchase liability insurance Doctors and lawyers purchase malpractice insurance Homeowners and renters buy liability insurance for vistors