Negligence and Unintentional Torts

1. Negligence and Unintentional Torts

2. What is a Tort? • Damage to property or a personal injury caused by another person is a civil wrong called a tort • Tort Law holds persons, private organizations, and governments responsible for damages and injuries • Unintentional Torts – injuries that are the result of an accident or an action that was not intended to cause harm

3. Negligence • The most common type of unintentional tort • Occurs when you Cause injury to someone in a situation where you should have known your actions could cause harm

4. Negligence - factors • Stage 1 – Duty of Care • The obligation to avoid careless actions that could cause harm to one or more persons. • Neighbour principle • The legal responsibility to owe a duty of care not to harm one's neighbour by being careless or negligent • Your neighbour is anyone who you can reasonably foresee being injured by your actions • Foresee ability – being aware that your actions could cause injury to someone

5. Negligence – factors • Stage 2 – Standard of Care • if a duty of care is owed to a “neighbour”, to what extent is that duty required? • What would a reasonable person do in a similar circumstances? • A reasonable person is considered to be an ordinary person of normal intelligence • Professional liability – specialised standard of care • People with specialised skills or training have a higher standard of care with respect to their field of expertise • A reasonable person with the same specialised training • Medical negligence • Patients much give voluntary , informed consent in normal circumstances before a doctor can perform any medical procedure or test

6. Negligence – factors • Stage 2 – Standard of Care • Children • Special status under the law • Children under the age of 6 are rarely found liable for their actions as they are believed to be too young to foresee the consequences • Children over the age of 6 – courts consider their age, intelligence, life experience and what another child of similar age and intelligence would have done under similar circumstances • Adult activities – i.e. driving a motor vehicle – child is responsible for the same standard of care as an adult

7. Negligence – factors • Stage 2 – Standard of Care • Parental Responsibility • Parents are not automatically liable for their children’s actions • Can be held responsible if they fail to supervise or train their children • Certain provinces have laws that hold parents responsible for torts committed by their children • Parents may need to prove that they acted responsibly in order to not have to pay damages • Children can sue their parents if the parent acted irresponsibly

8. Negligence – factors • Stage 2 – Standard of Care • Rescuers Good Samaritan laws generally hold the standard of care for rescuers to a lower standard than other situations Person who was negligent in his/hers actions and caused the situation owes a duty of care to both the victim and the rescuer

9. Negligence – factors • Stage 3 – Causation • Cause-in-Fact • “but for” test – i.e. the injury would not have occurred “but for” the defendant’s actions • Apportionment • The division of fault among wrongdoers • Remoteness of Damage • Harm that could not have been foreseen due to a lack of close connection between the wrong and the injury • Intervening act • An unforeseeable event that interrupts the chain of events started by the defendant.

10. Negligence – factors • Stage 3 – Causation • Thin-Skull rule • Defendant is liable for all damages caused by negligence despite any pre-existing conditions that make the plaintiff more prone to injury

11. Special Types of Liability • Product Liability • Manufacturers have to meet a higher standard of care in order to prevent injury to consumers of their products • Product must be free of harmful defects • Product is properly manufactured • Consumer must be properly informed about how to use the product safely • Consumer must be warned about the risks associated with using the product

12. Special Types of Liability • Occupiers’ Liability • People who own or occupy a property have a duty to maintain their property so that no one entering the premises is injured • Standard of care is dependent on the kind of visitor • Invitee (highest standard of care) • Person invited onto the premises for a business purpose • Licensee • Social visitor such as a friend Often the first two categories are combined • Trespasser • No legal right to be on your property • Children who trespass are treated differently than adults (allurement)

13. Special Types of Liability • Hosts • People who serve alcohol to their guests • Commercial hosts have a statutory duty of care to their patrons and anyone who may be injured by their patrons’ negligent driving • Social hosts law is developing

14. Special Types of Liability • Vicarious Liability • Legal responsibility for the negligence of another person • Employer may be responsible for the actions of the employees • Automobile Negligence • Negligence as a result of the operation of a motor vehicle • Usually covered by liability insurance • Strict Liability • Defendant is automatically liable for any injury caused by a dangerous substance or activity • Animal control laws • Pollution

15. Defences to Negligence • Did not owe a duty of care • Met the standard of care • Your actions did not cause the injury/damage • Contributory Negligence • Plaintiff contributed to the injury by displaying unreasonable conduct • Voluntary Assumption of Risk • Plaintiff knowingly and willingly assumed the potential risks normally associated with the activity • May have to sign a waiver before being permitted to participate • Signing a waiver does not automatically exempt the defendant from liability

16. Defences to Negligence • Other Defences • Inevitable accident • Accident was unavoidable due to an uncontrollable event • Act of God • Accident caused buy an extraordinary, unexpected natural event • Explanation • Accident occurred for a valid reason even though the defendant took every precaution Statute of Limitations People must sue for damages within a reasonable time