Tort Law - Lecture 3

Recapping Negligence: Duty of Care

• Duty of care is a critical element in negligence, consisting of different components.

• Concepts connect to foundations of statutory interpretation.

• Considerations for duty of care:

  • Physical harm to the plaintiff's body or property.

  • Mental harm.

  • Pure economic loss (not covered in this course).

• Separation of Positive Acts and Omissions:

  • Positive Act: Direct impact causing damage (e.g., throwing a Frisbee).

  • Omission: Failure to act leading to damage.

• Duty Categories for Positive Acts:

  • Doctor-Patient: Duty of care during treatment.

  • Driver and Road Users: Duty to pedestrians, cyclists, and other drivers.

  • Occupier and Entrant: Duty to maintain land safely for entrants (damage caused by the land's condition).

  • Employer and Employee: Safe working conditions duty.

  • Reasonable Foreseeability: Generally enough for positive acts causing physical harm (Harrington and Stephens case).

• Omissions require more than just reasonable foreseeability; salient features must be considered.

  • Carelessness: Identify the specific carelessness involved.

  • Reasonable Foreseeability of Carelessness: Would the carelessness lead to harm to a class of persons?

  • Class of Persons: Language from the Chapman and Hearst case.

  • Salient Features: Analysis from Kartex, Modbury Triangle, and Adeel's Palace cases.

Mental Harm and the Civil Liability Act (CLA)

• Sections 53 and 33 of the CLA are relevant.

• Damages for mental harm are only awarded if the person:

  • Was physically injured in the accident.

  • Was present at the scene of the accident when it occurred.

  • Was a parent, spouse, domestic partner, or child of a person killed, injured, or endangered in the accident.

• Recognized Psychiatric Illness: Must have a diagnosed condition.

CLA Section 33

• Section 33 outlines factors the court must consider to determine if mental harm was reasonably foreseeable:

  • Whether the mental harm resulted from sudden shock.

  • Whether the plaintiff witnessed someone being killed, injured, or put in peril.

  • The nature of the relationship between the plaintiff and any person killed, injured, or put in peril.

  • Whether there was a pre-existing relationship between the plaintiff and the defendant.

Separating Elements of Negligence

• Each element of negligence (duty of care, breach, causation) must be established separately.

• A duty of care might be established, but negligence not found due to lack of breach or causation.

• Cases like Nyndorf and Junkovich show that duty of care does not automatically imply a breach.

Breach of Duty: Standard of Care

• Breach occurs when the defendant fails to meet the required standard of care.

• Focus on the standard that should have been met, precautions a reasonable person would have taken.

• Assessment of wrongful behavior.

Civil Liability Act: Sections 31 and 32

• Sections 31 and 32 of the Civil Liability Act (CLA) define the default standard of care.

• Need to recognize situations requiring a different standard of care.

Occupier's Duty of Care

Occupier's Duty of Care.

• Occupier and entrant relationship legislated in the CLA.