Chapter 4 The Law of Negligence

Copyright © 2007 by Nelson, a division of Thomson Canada Limited Summary of Objectives To define tort law To identify elements of negligence To assess duty of care in the hospitality industry To isolate factors that may reduce liability for breach of duty of care Copyright © 2007 by Nelson, a division of Thomson Canada Limited

Elements of Negligence The elements of negligence are a duty of care owed by the defendant a breach of the duty of care an injury to the plaintiff proximate cause between the breach and the plaintiff’s injury Copyright © 2007 by Nelson, a division of Thomson Canada Limited

Copyright © 2007 by Nelson, a division of Thomson Canada Limited Definition of Tort An intentional or unintentional injury (other than a breach of contract) to the victim’s body mind property pocketbook Copyright © 2007 by Nelson, a division of Thomson Canada Limited

Copyright © 2007 by Nelson, a division of Thomson Canada Limited Duty of Care Everyone has a duty to take reasonable care to avoid causing injury to anyone to whom a duty is owed. The Reasonable Person Test – what would a careful, thoughtful person in the same circumstances have done? Copyright © 2007 by Nelson, a division of Thomson Canada Limited

Copyright © 2007 by Nelson, a division of Thomson Canada Limited Purposes of Tort Law Specifically, to restore the injured party to the position he or she was in before the injury In general, the primary purposes of tort law are regulation, deterrence, compensation, dispute resolution, education and prevention. Copyright © 2007 by Nelson, a division of Thomson Canada Limited

Copyright © 2007 by Nelson, a division of Thomson Canada Limited Intentional Torts Assault – the threat of serious unwanted touching Battery – the act of serious unwanted touching Trespass – unlawful entry upon property Conversion – a person without authority wrongfully takes, retains or disposes of the personal property of another Copyright © 2007 by Nelson, a division of Thomson Canada Limited

Copyright © 2007 by Nelson, a division of Thomson Canada Limited Intentional Torts 2 False Imprisonment – confining or detaining someone without lawful authority Intentional Infliction of Mental Suffering – deliberately causing mental suffering Deceit – fraudulently misleading another Intentional Interference with a Contract – urging someone to breach a binding contract Copyright © 2007 by Nelson, a division of Thomson Canada Limited

Defences to Intentional Torts Consent Self defence Defence of property Defence of a third person Necessity Legal authority Lack of intention Copyright © 2007 by Nelson, a division of Thomson Canada Limited

Causation and the Burden of Proof A defendant will be liable for reasonably foreseeable consequences of his or her acts. If injury was a likely consequence of an act, it is not necessary to know exactly how such an injury would be caused. Copyright © 2007 by Nelson, a division of Thomson Canada Limited

Copyright © 2007 by Nelson, a division of Thomson Canada Limited Thin Skull Rule A tortfeasor who can reasonably foresee some injury as a consequence of his or her conduct may be liable for more serious consequences than he or she anticipated. Copyright © 2007 by Nelson, a division of Thomson Canada Limited

Copyright © 2007 by Nelson, a division of Thomson Canada Limited Res Ipsa Loquitur means “The thing speaks for itself” Without negligence, injury would not normally have occurred The elements are injury caused by misadventure not normally occurring without negligence the thing causing the injury was within the defendant’s control the plaintiff did nothing to provoke the accident the plaintiff had no prior knowledge of the danger Copyright © 2007 by Nelson, a division of Thomson Canada Limited

Copyright © 2007 by Nelson, a division of Thomson Canada Limited Strict Liability Applies in the context of an unnatural use of land or buildings, or hazardous activities and products The defendant may be found strictly liable if injury occurs even though precautions were taken. Copyright © 2007 by Nelson, a division of Thomson Canada Limited

Contributory Negligence If a plaintiff is partly or solely the cause of his or her own injury, the amount of compensation will be reduced accordingly. Copyright © 2007 by Nelson, a division of Thomson Canada Limited

Voluntary Assumption of Risk A plaintiff who has participated in an activity knowing that injury might result may be said to have assumed the risk voluntarily. The defendant must establish that the plaintiff knew about the risk and understood it the plaintiff had a choice to avoid the risk but instead voluntarily assumed it the defendant was not in breach of any statutory duty from which the injuries flowed Copyright © 2007 by Nelson, a division of Thomson Canada Limited

Waivers and Disclaimers Waivers are separate contracts. One party agrees not to try to impose liability on the other if there is an injury. Disclaimers are attempts by one party to unilaterally impose on the other the terms specified in the waiver. Copyright © 2007 by Nelson, a division of Thomson Canada Limited

Copyright © 2007 by Nelson, a division of Thomson Canada Limited Vicarious Liability Employers are responsible for the torts of employees which occur while they are performing their duties. Failure to correct a problem such as incompetence of an employee may also result in vicarious liability. Copyright © 2007 by Nelson, a division of Thomson Canada Limited

Negligent Misrepresentation If someone relies on advice or information negligently provided by a specialist, and does so reasonably to his or her detriment, a duty of care is breached. Informed consent or an appropriate disclaimer may relieve the specialist of liability. Copyright © 2007 by Nelson, a division of Thomson Canada Limited

Copyright © 2007 by Nelson, a division of Thomson Canada Limited Passing Off If a reasonable member of the public would be misled into believing one company’s goods or services are those of another selling a similar product, the victim may seek an injunction and damages. Copyright © 2007 by Nelson, a division of Thomson Canada Limited

Copyright © 2007 by Nelson, a division of Thomson Canada Limited Defamation The publication of a false statement about someone either verbally or in writing which damages their reputation Defences the defendant may raise are truth of the statement consent of the plaintiff absolute privilege qualified privilege fair comment Copyright © 2007 by Nelson, a division of Thomson Canada Limited

Copyright © 2007 by Nelson, a division of Thomson Canada Limited Injurious Falsehood Defaming a business, a product or a property rather than a person Copyright © 2007 by Nelson, a division of Thomson Canada Limited

Copyright © 2007 by Nelson, a division of Thomson Canada Limited Nuisance Interference with another person’s use and enjoyment of their land Must be continuing and unreasonable Copyright © 2007 by Nelson, a division of Thomson Canada Limited

Occupiers Liability Legislation Occupiers owe a duty of care to those entering on, or in the vicinity of, their premises. Depending on jurisdiction, there may be a distinction between the duty owed to an invitee and a licensee. Copyright © 2007 by Nelson, a division of Thomson Canada Limited

Preventing Negligence Claims Standard operating procedures Staff training Adherence to regulations Record keeping Use of waivers, disclaimers and releases Insurance Copyright © 2007 by Nelson, a division of Thomson Canada Limited