Law 12 Notes –
Chapter 12 – Negligence and Other Torts, pp. 337 - 380
12.1 – Introduction
- Tort law changes with society – as priorities change, so do the laws
- Slightly different from province to province, but same principles
12.2 – Negligence and Intent
- Negligence has three key characteristics:
- Action is unintentional, unplanned, and an injury results
- Intentional torts include trespassing, causing a nuisance, and defaming reputations
- Intentional torts are the oldest laws recognized by the courts
- Foreseeablilty is a factor in deciding whether something was intentional or not
12.3 – The Elements of Negligence
- Many things have to exist for an action to be considered negligent:
Duty of Care
- Plaintiff must show that the defendant should have made sure no accident could occur
- People must keep their sidewalks shovelled
Breach of Duty of Care
- Defendant breaches the expected “Duty of Care” when they do not meet the expected “standard of care” expected of a “reasonable person”
The Reasonable Person
- No physical or developmental disabilities, is careful, thoughtful, and considerate
- Not all “reasonable people” are the same, depends on the area, time, etc
- If someone acts below this standard, they are liable, even if they were obeying the law
Minors and a Duty of Care
- Kids can’t be considered “reasonable people”
- The older they are, the more responsible they are considered
- If kids are doing adult activities (driving, etc) they are held to the same standards
Foreseeability
- Related to the concept of a reasonable person
- Would someone in the same circumstance have foreseen the result of the action?
- “Yes” = liable; “No” = not liable
Causation
- After a breach of trust has been established, the plaintiff needs to prove that the negligent action caused the harm
- The court must decide how direct the causation is, whether it’s a key reason or not
Actual Harm or Loss
- Something bad actually has to happen for there to be a case
The Burden of Proof
- Plaintiff must prove the defendant did something wrong
- Defendant does not have to prove anything, but often presents evidence to show their story is correct
- Proof exists on a balance of probabilities
Snail in the Bottle Case
-Donaghue v. Stevenson (1932)
-One must take reasonable care to avoid acts that could harm another
-Marked the beginning of negligence law
-Widely accepted as common law’s best-known precedent
-Anyone involved in producing consumer goods may be held liable for negligence if consumers are injured by their products when used in a routine manner
12.4 – Defences for Negligence
- Best defences are that negligence did not exist or defendant did not owe a duty of care
- If a plaintiff has also been negligent, damages may be reduced or not awarded at all
Contributory Negligence
- If both parties are somewhat at fault, damages are divided between them
- This principle is called contributory negligence
- If the victim is partially at fault, they will not receive a full payment
- Often used as a defence in car accidents where plaintiff wasn’t wearing seat belt
Voluntary Assumption of Risk
- Plaintiff clearly knew the risks involved, and chose to go ahead with the action anyways
- Risks that aren’t ordinary parts of the activity are not covered under this defence
- Drivers who injure passengers while driving drunk may use this defence
Inevitable Accident
- Something unforeseeable, that could not have been avoided
- Lightning strikes a car, causing it to swerve, causing an accident
12.5 – Special Types of Negligence
Occupiers’ Liability
- A person who controls property has a responsibility to others entering that property
- Sidewalks and steps must be clear of ice, etc
- Store owners need to keep floors dry
- Three classes of people who could enter a property:
Invitees
- Anyone on the property for other than a social visit
- Highest standard of care required because of expected economic transactions
- Includes delivery people, repairs people, etc
Licensees
- A person who enters the property with implied permission
- Friends coming over for dinner, etc
- Lower standard of care expected than for invitees
Trespassers
- Person who enters property without permission or legal right to be there
- Eg: Burglars, wandering children, guests overstaying their welcome, etc
- Occupiers can’t set traps or intentionally hurt people
- Occupiers must have a respect for the safety of all others who come onto the property
- If the property has play equipment that may be alluring to small children, the occupier has to take caution to make sure it is safe
- What is considered an allurement varies from case to case
- Municipalities must out fences around pools, etc, and they must be a certain height
Occupiers’ Liability Acts
- Sometimes difficult to decide if someone is an invitee or a licensee
- Occupiers’ Liability Acts eliminated the old categories
- Established a standard duty of care for all visitors, regardless of reason
Commercial and Social Host Invitees
- Bar and Tavern owners are required to make sure drunken people do not drive
- Liability begins when the alcohol provider serves drinks to someone already intoxicated
- These are slowly being extended to social hosts as well
Motor Vehicle Negligence
- Violating the Motor Vehicle Act or the Highway Traffic Act is negligence
- In some motor vehicle cases, the burden of proof is on the defendant
- Once the plaintiff establishes that he was struck by another car, the defendant must prove that the loss or injury was not because of their negligence
Liability for Passengers
- Drivers are liable, but if someone knowingly gets in with a drunk driver, it is considered voluntary assumption of risk
- If the plaintiff was unaware of any danger, there is no voluntary assumption of risk
Seat Belts and Negligence
- If someone fails to wear their seat belt and is hurt, it is contributory negligence
- Even if an accident is totally the other driver’s fault, damages are generally reduced by 15 to 40 percent if the victim was not wearing a seat belt
Vicarious Liability
- Holding a blameless person responsible for the misconduct of another
- Encourages people to only lend their vehicles to people who can drive them safely
- If the owner gave permission, they are liable; if it was stolen, only the driver is at fault
- Also applies to the workplace: employers are partially liable for negligent employees
- Employers usually have tons of liability insurance to compensate for this
Professional Negligence
- The more qualified a person, the higher standard of care society expects
- Largest area of professional action is medical negligence
Medical Negligence
- Whether or not a doctor has provided adequate care to a patient
- Patient must have enough information to give informed consent
- If not, the doctor could be liable for negligence; even assault and medical battery
- Doctor must fully inform the patient of all risks involved
12.6 – Trespass to Persons and Land
- Two main types of torts: unintentional / intentional
- Main intentional torts are trespass to another person, trespass to land, and nuisance
Assault and Battery
- Any threat or perceived threat = assault
- Follow through of assault = battery
- Any unsolicited action can be battery (hugs, kisses, etc)
- Assault and battery are usually tried together
- Court will compensate for harm and loss, and may also award punitive damages
False Imprisonment
- Wrongfully confining or restraining a person without consent in a specific area
- Better term might be wrongful confinement
- Plaintiff must attempt every method of escape before bringing action
- Actual physical restraint is not necessary for false imprisonment to exist
- Eg, someone shouts “grab that man!”
- If the po arrests someone without a warrant, it is false arrest
Trespass to Land
- Entering and crossing another person’s land without permission or legal authority
- Basically doing anything involving any part of someone’s land is trespassing
- Aircraft can fly over people’s land legally
- Landlords must notify tenants before entering rented property
Nuisance
- One person’s unreasonable use of land that interferes with the enjoyment and use of adjoining land by other people or a community
- Trespass is always intentional; nuisance can be unintentional or intentional
- Trespass laws protect a possession; nuisance laws protect the enjoyment of it
- Nuisances are often linked to environmental concerns
- Compensation will not be awarded for occasional minor annoyances; must be a big deal
12.7 – Defences for Trespass
- Most common defences are consent, self-defence, defence of others or a property, legal authority, and necessity
- Defendants can use more than one
Consent
- Most often used in cases of trespass to the person, especially battery
- Often involves contact sports, eg, a boxer knows they will be punched, etc
- A doctor who treats a patient without consent is committing battery, and if a patient is unconscious, a doctor can only do what is necessary to save their life
Self-Defence
- Valid excuse provided the force used is not excessive and it is reasonable and necessary
- What is reasonable depends on the facts of each case
- Provocation is not an acceptable defence for an intentional tort, although it is acceptable for murder… if that makes sense to anyone, tell me!
Defence of Others
- A third party can come to the aid of someone else getting ass whooped
Defence of Property
- After owner asks a trespasser to leave, and they don’t, owner can use reasonable force
- No deadly or dangerous traps allowed
Legal Authority
- Law enforcement officers, etc, have the legal authority to do otherwise illegal stuff
- If someone has a warrant, etc, they can arrest suspects
- Certain industries can emit smoke, noise, and effluent without being liable
Necessity
- If trespassing was strictly necessary, a defendant may be excused
- Eg, a storm forces boaters to land on an island that is not their own
12.8 – Defamation of Character and Its Defences
- Defamation – an unjustified or untrue attack on a person’s reputation
- Can be intentional or unintentional
- People should be allowed to speak their minds, but as long as their allegations are not baseless and unproven
Slander
- Defamation through spoken words, sounds, physical gestures, or facial expressions
Libel
- Defamation through a more permanent form (radio, newspaper, films, etc)
- Even if they are written in a private diary, and someone reads them, it could be libel
Defences for Defamation
- Defendants try to use the truth, absolute and qualified privilege, and fair comment as defences for defamation
Truth
- If something’s true, it’s not libel or slander
- The law only protects against false statements
Absolute Privilege
- MPs, MLAs, anyone in court, coroner’s inquests, and judicial hearings are given absolute privilege
- They can make statements openly without fear of being sued
Qualified Privilege
- People who are required to express their opinions through the course of their work are also protected
- Must prove that the statements were made in good faith, without malice
- Lower level govt officials are only granted qualified privilege, not absolute
Fair Comment
- Media critics and others who provide information to the public are entitled to opinion
- These people have the right to criticize openly and honestly
- If the comments are not fair and can be proved to be malicious, that is liable
12.9 – The Need for Insurance
- Damages to the plaintiff are the most common form of compensation
- Most ppl purchase insurance to protect against the possibility of expensive legal action
Motor Vehicle Liability Insurance
- Civil lawyers likely spend more time on car-related cases than any other civil procedure
- All car owners in Canada are legally required to pay insurance
- Insurance companies pay claims for damages, up to a certain maximum
- Third Party Liability – 3 parties involved: insurance co, plaintiff, defendant
- Minimum amount covered by insurance is $200,000
- Because of the huge settlements awarded, many drivers buy more than the minimum
- No-fault Insurance – Puts money in the hands of victims immediately, whether or not they are at fault in an accident
- A person who is awarded a no-fault settlement can still sue for additional damages, but their no-fault settlement is subtracted from any additional money awarded
Other Liability Insurance
- All insurance deals have a maximum amount covered – if the court awards a victim more than that, the defendant has to pay it themselves
- May require the sale of possessions or the garnishing of wages… mmm garnish
- Medical malpractice suits are increasing – doctors pay membership to the Canadian Medical Protective Association (CMPA)
- Covers malpractice suits for doctors
- Many lawyers also buy additional insurance
- More people are ready to sue, so it is beneficial to have insurance policies