NEGLIGENCE (Unintentional Torts)

The elements of negligence: * Negligence * Duty of Care * Standard of Care * Foreseeability * “reasonable person” * Causation : cause-in-fact / remoteness of damage

TYPES OF LIABILITY

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

Occupier’s Liability Responsibility of owners or renters to ensure that no one entering their premises is injured. 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. 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. 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.

Hosts Someone who serves alcohol to guests or paying customers ( commercial or social 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. 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) 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)

Vicarious Liability Legal responsibility for the negligence of another person. 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 owner’s car. 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 owner’s car.

Motor Vehicle Negligence ( ) Motor Vehicle Negligence ( ) Professional / Medical Negligence ( ) Professional / Medical Negligence ( )

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

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 (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. Children must provide a duty and standard of care expected from reasonable children of a similar age.

Parents are not automatically liable for their children’s torts; it must be shown that the proper standard of care was not present. Parents are not automatically liable for their children’s torts; it must be shown that the proper standard of care was not present. Vicarious liability( the responsibility of one person for another person’s action) states that parents are liable for accidents caused by children driving the family car, snowmobile, etc. Vicarious liability( the responsibility of one person for another person’s 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). 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).

Defences to Negligence  The most common defences against negligence are that: a) Negligence did not exist b) The defendant did not owe plaintiff any duty of care  Three commonly used defences…

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. 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. 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 The onus is on the defendant to prove that the plaintiff was in some way responsible

Voluntary Assumption of Risk The defendant must prove that the plaintiff knew the possible risk involved in their actions. 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. 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. The onus is on the defendant to prove the plaintiff was aware of the risk.

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. 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. Cannot foresee the accident happening. Act of God Act of God Explanation Explanation

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