Chapter 11: The Tort of Negligence
Explain the concept of causation in the negligence test.
A court needs to determine whether the defendant's careless act or omission caused the plaintiff's damage. Judges typically ask a basic question when attempting to assess causation: "Would the harm not have occurred but for the defendant's conduct?"
Negligent misstatement or negligent misrepresentation
An incorrect statement made carelessly.
Was There a Breach of the Standard of Care? (
If the defendant is a professional, he or she will be held to a higher standard than the average person and will be expected to meet the standard of his or her profession. A lower standard may exist where the defendant is not an adult or in emergency situations.
What was the significance of the Donoghue v Stevenson legal decision
Lord Atkin established the basic principles on which to determine to whom a duty of care is owed in negligence. In the context of the case, it established that manufacturers owe a duty of care, and can be liable in negligence, for their products to end users.
What is the standard of care for professionals?
: Professionals must meet a higher standard of care than that of just a reasonable person. Their conduct is compared with that of a reasonable person with that specialized training.
Lord Atkin established the basic principles on which to determine to whom a duty of care is owed in negligence. In the context of the case, it established that manufacturers owe a duty of care, and can be liable in negligence, for their products to end users.
A court must determine if it is reasonably foreseeable that carelessness by one party would adversely affect another. Assuming the answer is yes, the court them must determine whether the imposition of the duty, which flows from answering yes to the first consideration, should be "negatived or limited by policy considerations."
What duty of care is owed by a bar owner?
A duty of care is owed by a bar owner to protect against the foreseeable risks of intoxication. The bar owner owes a duty of care to the patron. This duty requires a bar to take reasonable steps to prevent an impaired person from driving when it is apparent that the person intends to do so. The duty also extends to people who may be using the roads and who might be expected to come in contact with the patron. Again, this duty requires the bar to take reasonable steps to prevent the patron from driving.
Neighbour Principle
A duty of care is owed to anyone who might reasonably be affected by another's conduct.
What defence might be raised in a suit involving the negligent service of alcohol?
As is evident from the McIntyre decision, many establishments will, at minimum, claim contributory negligence as a defence, since the plaintiff will have almost inevitably made a voluntary choice to consume the alcohol (at least while sober) and bears some responsibility (in law) for that.
Prima facie
At first sight or on first appearances.
Proving Duty of Care
COURTS MUST CONSIDER Is the harm that occurred a reasonably foreseeable consequence of the defendant's act? Example: If the defendant is driving too fast, it is foreseeable that other drivers and pedestrians could be harmed - therefore, a duty of care exists. Is there a relationship of sufficient proximity between the parties such that it would not be unjust or unfair to impose a duty of care on the defendant? In many cases the courts have established by precedent that a duty of care exists in certain situations. Examples: Businesses in commercial relationships have been held to owe a duty of care to their customers. Bars have been found to owe a duty of care to other users of the road who might be harmed by a drunken patron who drives after leaving the premises. If no precedent exists? The court will consider : if it was reasonably foreseeable that someone in the plaintiff's position could be harmed by the defendant and whether there are any policy reasons to deny a duty of care.
Defences to Negligence
Contributory Negligence: -Unreasonable conduct by the plaintiff that contributed to, or partially caused, the injuries suffered -The court will reduce the plaintiff's award by their own percentage of fault. Voluntary Assumption of Risk: -No liability exists, as the plaintiff agreed to accept the risks inherent in the activity. -The defendant must show the plaintiff accepted the physical and legal risks of the activity.
Pure economic loss
Financial loss that results from a negligent act where there has been no accompanying property or personal injury damage to the person claiming the loss.
What is meant by volenti non fit injuria
It means that the risk of injury was totally assumed by the injured party and no liability exists. It is the voluntary assumption of risk defence.
Product liability
Liability relating to the design, manufacture, or sale of the product.
Identify the rationales for the limit on pure economic loss recovery.
One explanation for the limit is that it prevents defendants from being overwhelmed with liability. A related explanation is that to permit recovery of damages in such cases would cause too much litigation in the courts.
Third party
One who is not a party to an agreement.
Steps in tort law
STEP ONE: DOES THE DEFENDANT OWE THE PLAINTIFF A DUTY OF CARE? STEP TWO: DID THE DEFENDANT BREACH THE STANDARD OF CARE? STEP THREE (causation of damages): DID THE DEFENDANT'S CARELESS ACT OR OMISSION CAUSE THE PLAINTIFF'S DAMAGE? STEP FOUR (damage too remote): WAS THE DAMAGE SUFFERED BY THE PLAINTIFF TOO REMOTE? -REMOTENESS OF DAMAGE - The absence of a sufficiently close relationship between the defendant's actions and the plaintiff's loss -Thin Skull Rule: Defendant is liable for the full extent of the plaintiff's loss, even where a prior vulnerability makes the harm more serious than it otherwise might be
Negligence Compared to Strict Liability
STRICT LIABILITY - The principle that liability will be imposed irrespective of proof of negligence Largely confined to liability for fires, dangerous animals, and the escape of dangerous substances Liability in contract and vicarious liability can also arise even if there is no fault or carelessness of the defendant. Some countries impose strict liability on manufacturers for defective products. A manufacturer can be sued regardless of fault under EU (European Union) law. Negligence: Negligence law is an inherently flexible, growing legal area. The four steps to a negligence action describe general standards or markers that help a court assess whether the defendant in any given case has been negligent. One of the most common defences to a negligence claim is that of contributory negligence. Product liability involves both negligence law and the law of contract.
Professional
Someone engaged in an occupation requiring the exercise of special knowledge, education, and skill.
What position did the Supreme Court of Canada take with respect to financial statements in Hercules Managements Ltd v Ernst & Young?
The Supreme Court took the position that that sole purpose for which financial statements are produced is for the annual general shareholder meeting.
Remoteness of damage—
The absence of a sufficiently close relationship between the defendant's action and the plaintiff's injury.
Reasonable care
The care a reasonable person would exhibit in a similar situation.
Explain the two defences to a negligence action and the likelihood of success of each.
The defence of contributory negligence arises when the unreasonable conduct by the plaintiff partially caused or contributed to the injuries that the plaintiff suffered. When the plaintiff is partially responsible for the misfortune, provincial legislation provides for apportionment of responsibility, and the plaintiff's damage award will be reduced in proportion to his or her own negligence. The defence of voluntary assumption of risk succeeds only when the defendant is able to establish that the plaintiff was fully aware of the risks associated with the defendant's conduct and consented to accept the risk. This test is difficult to meet and so this is a very rare defence. When the defence is successful, it acts as a complete defence to the plaintiff's claim, with the result that the plaintiff will recover nothing for the injuries caused by the conduct of the defendant.
Voluntary assumption of risk
The defence that no liability exists as the plaintiff agreed to accept the risk inherent in the activity.
How does the issue of remoteness limit a plaintiff's claim?
The defendant is responsible for the injuries caused by the careless act as long as the injury is not too remote. If the type of damage is foreseeable, the defendant is responsible for the full extent of such damage. However, the defendant is not responsible for any damage when that type of damage is not reasonably foreseeable.
Thin skull rule
The principle that a defendant is liable for the full extent of a plaintiff's loss even where a prior vulnerability makes the harm more serious than it otherwise might be.
Strict liability
The principle that liability will be imposed irrespective of proof of negligence.
What is the purpose of negligence law?
The purpose of negligence law is to compensate victims for their loss or injury after determining who is responsible for the injury.
CAUSATION
The relationship that exists between the defendant's conduct and the plaintiff's loss The plaintiff must show that the harm would not have occurred but for the defendant's actions. If there are no damages, then the negligence lawsuit will fail.
Causation—
The relationship that exists between the defendant's conduct and the plaintiff's loss or injury.
Duty of care
The responsibility owed to avoid careless acts that cause harm to others.
Reasonable person
The standard used to judge whether a person's conduct in a particular situation is negligent.
Identify three exceptions to the fault-based liability system used in Canada.
Three areas are liability for fires, dangerous animals, and the escape of dangerous substances.
Identify two situations in which strict liability is present in law.
Two cases where liability is strict involve contract law and vicarious liability. When a party fails to perform a contract, the absence of negligence is no defence. In addition, with vicarious liability, an employer is automatically responsible for the torts of an employee when there is a relationship between what the employee was asked to do and the tort committed.
The defence of contributory negligence arises when the unreasonable conduct by the plaintiff partially caused or contributed to the injuries that the plaintiff suffered. When the plaintiff is partially responsible for the misfortune, provincial legislation provides for apportionment of responsibility, and the plaintiff's damage award will be reduced in proportion to his or her own negligence. The defence of voluntary assumption of risk succeeds only when the defendant is able to establish that the plaintiff was fully aware of the risks associated with the defendant's conduct and consented to accept the risk. This test is difficult to meet and so this is a very rare defence. When the defence is successful, it acts as a complete defence to the plaintiff's claim, with the result that the plaintiff will recover nothing for the injuries caused by the conduct of the defendant.
When negligence takes the form of words, the tort is called negligent misstatement or negligent misrepresentation. The following two-step test determines if the words are a tort: • There is a neighbour relationship between the parties. • There are no considerations limiting or eliminating any duty of care. When the loss suffered as a result of the careless words is purely monetary, with no physical injury or property damage, such as when a professional offers an opinion, the law is concerned that professionals could face an unacceptable level of liability should that advice be relied on by third parties. However, some cases have found third-party liability.
