TORT LAW - Chapter 3 summary - NEGLIGENCE

Liability to rescuers

A forced rescuer can sue the defendant even though the rescuer acted voluntarily. A hopeless or reckless rescue attempt doesn't give rise to damages.

Automobile contributory negligence

Failure to wear a seat belt may be contributory negligence.

Automobile negligence

Owner's liability is imposed by legislation. The owner of a motor vehicle is liable for the negligent operation of the vehicle. If the owner allowed another to use it with owner's consent, he is liable even if he was not in the automobile. Driving negligently: harm to passenger, bystander, property. In some provinces, if passenger didn't pay for the ride, less liability for driver. Failure to ensure seatbelt worn by passengers, especially a minor: liability according to common law and legislation.

Inevitable accident

Unexpected mechanical failure may cause an inevitable accident which relieves the driver of liability. Road conditions may cause an inevitable accident.

Elements of proof for negligence

1. Duty of care. 2. Standard of care. 3. Proximate cause/ Causation (& remoteness). 4. Foreseeability.

Proof of voluntary assumption of risk

1. The risk was known to the plaintiff. 2. The plaintiff has personally assumed the risk. 3. The plaintiff has clearly absolved the defendant from liability.

Government liability

A government can be liable for negligence: Malfeasance and Nonfeasance. A government can exempt itself from liability by special statute. If a government decides to undertake an activity, it must perform it in a reasonable manner. A government may be liable for failure to inspect property: Building codes must be strictly enforced.

Liability to passengers

A passenger can sue the driver for negligence. A passenger who accepts a ride with a driver he or she knows is drunk cannot sue. The driver must ensure that young passengers wear their seat belts.

Informed consent

A patient must know what is to be done, the possible side effects and alternatives. Compliance with standard, accepted practice is not a defence if the standard was faulty (defective, imperfect, bad).

Ex Turpi principle

A plaintiff will be denied damages if his injuries arose out of his wrongful or immoral act, regardless of the defendant's liability or negligence.

Careful parent Rule

A teacher must take care of a pupil as a careful parent would take care of his or her child. Most school accidents occur because of a failure of the teacher to properly instruct or supervise. The degree of supervision varies according to the age and experience of the student.

Res ipsa loquitur

An act could speak for itself. Three requirements: 1. Accident doesn't ordinarily happens unless negligence. 2. Defendant in control of all situation or instrument causing harm. 3. Exact cause of the injury must be unexplained.

Negligence

Consists on doing or omitting to do, something that a reasonable person would do or not do under the circumstances; It is failing to exercise a duty of care toward others where a reasonable person could foresee that a neighbor would be injured.

Sale of goods legislation

Courts have held that retailers are directly liable to consumers. A warranty of fitness runs with the goods.

Contributory negligence

Damages may be reduced if the plaintiff contributed to his or her injury. Defendant only has to pay for what he caused.

Common failures of teachers and schools

Failure to: 1. Instruct, 2. Supervise, 3. Secure, 4. Employ competent teachers.

Strict liability

If you create a dangerous situation, you may be held liable without personal negligence. This rule imposes liability for doing an inherently dangerous thing. Strict liability centres on the use of land. Instead of the 4 regular element of negligence, the plaintiff will use a different set. The elements of strict liability are as follows (p. 91): 1. The substance causing harm must be inherently, by its basic nature, mischievous or dangerous. 2. The defendant must have brought it to the location: it was not there naturally. 3. The defendant failed to control it, and it escaped and caused damage to the plaintiff or the plaintiff's property.

Children's torts - liability of the child

In Ontario, a child, also known as a "minor". Or an "infant", is under 18. If very young, he is not held liable for negligent acts. The older the child, the more likely it is the child will be responsible for his acts. Children are liable for their torts once they reach the age of reason. Standard of care: A child of similar age, intelligence and experience. There is no rule of the reasonable child. A child performing an adult act must meet the standard of care of an adult.

Circumstantial evidence

In some situations, the negligence of the defendant is strongly indicated by the act itself. For many years the courts applied the rule of Res ipsa loquitur. Rule abandoned in 1998. Replaced by circumstantial evidence rule.

Malpractice

Is a professional's improper and immoral conduct in the performance of his or her duties. A term most often applied to the medical profession. Malpractice cases can be brought against doctors, lawyers, and other professionals. A doctor is not liable for malpractice merely because he or she chose the wrong alternative.

Variable standard of care

It may vary from case to case, it is often based on the persons involved and the facts of each individual case. Examples: Medical issues, education, professionals, children, motor vehicles, manufacturers, etc.

Volenti non fit injuria

Means a person who voluntarily accepts a risk cannot complain of injury.

Nonfeasance

Means that failure to perform a task led to the plaintiffs injury.

Malfeasance

Means to perform a task in a negligent manner.

Parental liability

Parents are not automatically liable for their children's torts. Adults must not put dangerous things in the possession of children.

Standard of care

Plaintiff must establish: - The appropriate standard of care that is the amount or level of care appropriate in the circumstances. - The defendant must provide to the plaintiff with a standard of care a reasonable person would provide under the same circumstances. - The defendant fell below the required standard of care, so he may be negligent. If the defendant met or exceeded the required standard of care, he is not negligent.

Strict liability of manufacturers

Some provinces have impose strict liability upon manufacturers.

Product liability

The case of Donoghue v. Stevenson established a duty of care to consumers.

Reasonable Person test

The concept of the reasonable person has become an important principle in many negligence cases, A reasonable person is thoughtful, thinks before acting, carefully considers the consequences of his or her actions, and avoid actions that might harm others. Nonetheless, the law doesn't expect a person to be perfect, only reasonable.

Defence against circumstantial evidence

The defendant could succeed by proving that the injury might reasonable have happened without any negligence on his or her part. The court must weight the circumstantial evidence with the direct evidence on the balance of probabilities.

Novus actus interviniens

The defendant might be relieved of liability because of the intervening act of another person. It is another act, separate and distinct, that entered the chain at some stage and created a new situation. Must be an act of another person, not of nature, that breaks the chain of events, so the cause is too remote from the effect to be consider negligence by the person who started the chain of events. Case Swami v. Lo: suicide was not the natural and probable consequence of the accident (intervening act).

Defences of the manufacturer

The manufacturer may show that someone tampered with the product after it left the factory. A manufacturer doesn't have to warn of obvious danger.

Manufacturer's liability

The manufacturer owes a duty of care to every person who might reasonably use its products. The manufacturer is liable if the product design was dangerous or defective. Negligent design. Manufacture: if something wrong with the process: failure to perform quality assurance. Labels must warn of the dangers of using a product. If not: it's failure to give proper instructions for use or failure to warn of potential dangers of product known by manufacturer.

Foreseeability

The plaintiff must prove that the defendant could have foreseen damage or injury as a result of his careless act or omission. Could the defendant have foreseen this sort of injury being suffered by a person such as the plaintiff? If the injury is not foreseeable, the defendant will not be liable. If the injury is foreseeable, the defendant may be liable.

Duty of care

The plaintiff must show that the defendant owed him or her a duty of care. For many years, negligence was tied to contract law. Lord Atkin's "neighbor principle" and "reasonable person rule" greatly altered negligence law. The defendant must owe a duty of care and fail to meet that duty of care in order to be found negligent by the court. In principle, no duty of care is owed to people with disabilities. The courts may create such a duty. A bar or resturant that serves alcohol in excesive amounts is liable if the patron later causes an accident.

Proximate cause / Causation and remoteness

There must be a relationship between the defendant's conduct and the plaintiff's injury to show proximate cause. Did the defendant's act (or omission = failure to act at all) cause the plaintiff's injury? Is the defendant's act close enough to the injury or loss, meaning the proximate cause of the plaintiff's injury? Or is the defendant's act too remote to hold the defendant liable? A series of events doesn't prove causation. But-For test.

Assumption of risk

Volenti non fit injuria. The plaintiff must know the risk and intend to absolve the defendant of liability. A person who attends a sporting event accepts only the normal risks of the game. A worker in dangerous profession accepts the risks of the job. A person cannot accept a risk that he or she is incapable of assuming.

Defences against negligence lawsuit

1. Plaintiff fails to prove one of the necessary elements for negligence on the balance of probabilities. 2. Intervening act: the acts of another person have interrupted the causation link. 3. Contributory negligence: plaintiff's negligence caused plaintiff's injury in whole or in part, or a third party is partially responsible. 4. Voluntary assumption of risk by the plaintiff. 5. Disclaimer clause: one that actually works. Plaintiff knew it and accepted it.