6 - Unintentional Torts; Negligence

What does the Plaintiff Need to Prove for a Negligence Lawsuit to be Successful? Elements of Negligence

1. Duty of Care

2. Breach of standard care

3. Causation

4. Damage (injury/loss)

Unintentional Torts

Negligence, professional liability, negligent misrepresentation

Negligence

Reckless accidental conduct below standard (reasonable person) which causes injury

Duty of Care

Concerns the people who the law considered might be harmed as a result of the defendants reckless condcut

Misfeasance

Something was DONE, which as reckless, therefore, wrongful conduct/behaviour. Courts are more willing to find liability

Nonfeasance

Failed to do something that needed to be done, an omission that resulted in reckless conduct

Duty of Care Tests

Reasonable Foreseeability Test (1) and Anns Policy Test (2)

Reasonable Foreseeability Test

Is it foreseeable that ones conduct/behaviour could cause injury

Donoghue v. Stevenson

Mrs. Donoghue became ill after drinking ginger beer containing a decomposed snail, and she sued the manufacturer, Stevenson, even though she hadn't purchased the drink herself. The court ruled that Stevenson owed her a duty of care because it was foreseeable that negligence in manufacturing could harm consumers, even without a direct contractual relationship. This case significantly expanded the scope of negligence and established the legal basis for consumer protection

Anns Policy Test

If part 1 of the duty of care test is satisfied, then were there policy grounds for not imposing a duty of care. Was there a reason to withhold duty of care given the circumstances

Reasonable Person Test

Did the defendant live up to the standard (objective) of a reasonable person. Test for Breach of the standard of care. Inexperienced does not result in lowering of the standard for care

Causation

If wrongful act produced injury

Tests for Causation

“But for” Test (1) and the “remoteness” test (2)

“But For” Test

P injury occurred “but for” d’s act. Would the injury have occurred but for the defendants conduct

“Remoteness” Test

Remote from defendants act to justify liability, physically or even mentally far away from the act

Thin Skull Rule

Holds defendant liable for all damages caused to a victim, even if the injuries are more severe than expected due to a pre-existing condition

Damage

Compensate to restore to original position prior to harm, courts will look to precedent cases

Defences to Negligence

Contributory Negligence and Voluntary Assumption of Risk

Contributory Negligence

Where the plaintiff in a way, played a role in the injury, a partial defence and if true, court will divide liability based on percentage

Voluntary Assumption of Risk

When a person engages in an activity, and they accept and are aware of the risks inherent in that activity, they cannot later complain if they sustain injury; this is a total defence

Occupier’s Liability

When an occupier is liable for injuries sustained by those on their property, greatest duty is to visitors and least duty is to trespassers (unless a minor)

Occupier’s Liability Act

Covers who is considered a visitor and trespasser, what duty is owed and if the occupier acted reasonably

Relevant Acts for Negligence

Contributory Negligence Act and Occupiers Liability Act, both are provincial statutes