Negligence and Unintentional Torts. Once upon a time… Thirty years ago, hardly anyone thought about going to court to sue someone. A person could be nudged.

Negligence and

Unintentional Torts

Once upon a time…

Thirty years ago, hardly anyone thought about going to court to sue someone. A person could be nudged by a car and the victim would likely say “no harm done,” and walk away. No filing of cause of action documents or statements of defence was required.

Which of the following sentences most logically continues with the paragraph?

a) Cars today are much more powerful than they used to be.

b) People drive faster and more aggressively today.

c) Unfortunately, times have changed.d) More people are aware of their

rights under the law.e) Lawyers are having a difficult time

finding clients.

Weird Tort Claims- Page 365

• Do any of these claims have merit?• What kind of injury did the plaintiff(s)

suffer?• How should they be compensated for

their loss or injury?

Definitions

Tort: harm caused to a person or property

Unintentional Tort: injuries caused by an accident or an action that was not intended to cause harm

Negligence: most common type of unintentional tort; careless behaviour that causes foreseeable harm to someone else. (Page 366)

Factors in Negligence Action

If the answer to the question is “no” at any stage of the process, the action will not proceed

STAGE ONE- Did the defendant owe the plaintiff a duty of care?

STAGE TWO- Did the defendant fail to provide the plaintiff with

the proper standard of care that a reasonable person would have provided in a similar situation?

STAGE THREE- Did the defendant’s actions cause the plaintiff’s

injuries?

The doors on the bus…

You are running to catch a bus just as its doors as closing. You bang on the door. The driver opens the door to let you in, and in doing so knocks the bag of groceries out of your hand. A large bottle of pop you are carrying smashes on the ground, seriously injuring the little boy standing behind you. His family sues the bus driver for negligence.

Is the bus driver guilty of negligence?

Duty of Care

• The obligation to foresee and avoid careless actions that might cause others harm (eg. Hitting golf balls)

Neighbour Principle

• Everyone owes a duty of care not to harm his/her neighbour by being careless or negligent

• Your “neighbour” is defined as anyone who you can reasonably foresee being injured by your actions. (Bike on sidewalk)

Foreseeability: being aware that your actions could cause injury to someone

So…back to the bus driver. Is he guilty of negligence?

Sam’s Case

Tom, in an extremely intoxicated state, went to a bar and was served three or four beers over a 50-minute period. After he left the bar, Tom drove his vehicle on the wrong side of the road and collided with Sam’s car, killing Sam.Sam’s wife decided to sue Tom and the bar owner over the death of her husband.

Thinking about Sam’s Case

1. Duty of Care: What duty did the defendants owe Sam?

2. Standard of Care:What would a reasonable person in the bar owner’s position do?

3. Causation: Did the defendants’ actions cause Sam’s death?

Family Sues Over Fatal Crashpage 369

1. Who were the defendants on the case?- John Deere Plant and two other organizations.

2. What three factors will the Peat family have to prove?- A duty of care was owed, a level of standard care was not provided and that the defendant’s actions caused the injury.

3. How would you apply the principle of foreseeability in this case? What should the organizations have been able to predict?- The company should have been able to foresee that students could be injured because:

* they weren’t aware of the possible dangers within the complex* they had no vehicle training or experience* they weren’t supervised

Standard of Care

If the court decides that the defendant owed the plaintiff a duty of care, the court must then decide how much care the defendant owed the plaintiff.

Standard of care: the degree of caution expected of a reasonable person.

(Reasonable person: an ordinary person of normal intelligence)

Standard of Care: Degrees of Liability

Professional Liability:

• People with special skills, expertise and training have a higher standard of care toward others than that of the reasonable person. To see if you were negligent, your behaviour would be compared to that of someone with the same specialized training and how he/she would behave.

Medical Negligence:

• Medical practitioners cannot touch patients, perform operations or administer any treatment unless consent has been given.

• Consent must be voluntary- can’t be pressured• Doctor has a duty to explain medical procedures

and all risks involved. If s/he fails to do so, the doctor could be liable if something goes wrong and if the patient can prove that he/she would not have had the treatment if the risk(s) had been explained.

Thibault v. Fewer- page 370

1. Why did the trial judge dismiss the case?

- a less than 1% risk of complication was not sufficient to require the surgeon to disclose the risks or potential side effects.

- the plaintiff would have had the procedure done even if the risks had been explained

2. If you were the plaintiff, would you appeal the decision?

Children:

• Have a special status under the law• Very young children, under the age of six (6) are rarely

found liable for their actions because they are too young to understand the notion of danger

• With children over the six (6), the court will consider the child’s age, intelligence, life experience and what a child of similar age and intelligence would have done under similar circumstances

• If a child performs an “adult” activity such as driving the family motorboat, then the court will likely apply the same standard of care regardless of age

Parental Responsibility:

• Not automatically held liable for damages caused by their children, but they could be held liable for negligence if they fail to train their children or supervise their activities

• Plaintiffs prefer to sue parents over children because children don’t have money to pay- parents do. Parents sometimes have liability insurance, and in this case, the insurance company pays, not the individual

• This is uncommon but…If children are injured because of their parent’s negligence, children can sue their parents to cover any injuries sustained. The child must be represented in court by an adult.

Dobson v. DobsonPage 372

Does a woman owe a duty of care to her fetus?

Consider This!

If you knew that you could be sued for negligence, would you stop to help at

the scene of an accident?

• What is a “Good Samaritan”?

• The provinces of Quebec, Ontario and British Columbia have a Good Samaritan Act that imposes a duty to assist others by making it illegal to fail to assist someone in need of help.

Rescuers:

• In most cases, you do not have a duty of care to help others in need.

• Courts want to encourage people to help those who require assistance so the courts are lenient in cases where someone steps in to help another person but actually causes that person harm. The standard of care required of a rescuer in an emergency is quite low.

• To further protect rescuers, the courts have held that the person who was negligent owes a duty of care to both the injured person and the rescuer. The negligent person should have been able to foresee that his/her actions could cause injury, but that someone else might try to save the injured party and be harmed as well. (Example on page 373)

Causation

The plaintiff must prove that the actions of the defendant actually caused the plaintiff’s injuries. The plaintiff would have to prove cause-in-fact.

Cause-in-fact is usually determined by the “but for” test. If an injury would not have happened “but for” the defendant’s actions, then those actions were a cause-in-fact of the injury. It is the connection between one person’s actions and another person’s injuries. (Example: Markus would not have died but for Maria’s dangerous driving.)

If the defendant could not have foreseen that his or her actions could cause the type of injury that resulted, then the defendant would not be held liable. This principle is referred to as remoteness of damage.

In some cases, more than one person could be held liable for negligence. In this case the court would hold different parties responsible at various degrees. The concept of dividing up fault among a number of wrongdoers is known as apportionment.

Thin-Skull Rule:• The principle that a defendant is

liable for all damages caused by negligence despite any pre-existing condition(s) that makes the plaintiff more prone to injury. Some consider this principle to be harsh on the defendant.

Special Types of Liability• The following groups are subject to slightly

different rules and have a higher standard of care than the average person.

Product Liability• Manufacturers have had to meet a high standard

of care in order to prevent injury to consumers who use their products. They have to ensure that:a) the design of the product is free from harmful defectsb) the product is properly manufacturedc) the consumer is informed about how to use the product safelyd) the consumer is warned of associated risks while using the product

Special Types of Liability

Occupier’s Liability• People who own or occupy property have a

duty to maintain their property so that no one entering the premises is injured. This is called occupier’s liability. (Renters are considered occupiers and they, too, owe a duty of care to people entering premises.)

• TV repair person comes to fix your TV• Uncle Pete stops by to see your new place unannounced• Nova Scotia Power walks on your property to read your

power meter• A local group travels door to door soliciting support for their

cause• Your friend, Joy drops by some muffins she made• Two kids enter your driveway to pet your dog• The flyer carrier places the weekly flyers in your mailbox• An old friend, whom you haven’t seen or talked to in over 3

years, shows up on your doorstep to surprise you

There are 3 kinds of visitors you can have on your property:

Invitee: a person invited onto a property for a business purpose. You owe this person the highest standard of care.

Licensee: a person such as a friend, who may or may not have been invited to your home for a particular occasion but has your implied permission to visit socially.

Trespasser: a person who enters another’s property without permission or legal right.

Consider this!

Should swimming pool owners be required to construct a fence around

their pools?

Allurement: a site or an item that might entice a child and result in causing harm. (swimming pool or playground equipment)

Special Types of Liability

Hosts: Someone who serves alcohol to their guests or to paying customers.

Commercial hosts have a duty of care to their patrons and to anyone who may be injured by their patron’s negligent driving.

Special Types of Liability

Vicarious Liability:• Occurs when someone is held liable

even though the person did not cause the plaintiff’s injury. It usually applies in workplaces where employers can be held responsible for the actions of their employees.

Vicarious Liability

Example:If a mechanic fails to properly repair the brakes on a car, and the car is then involved in an accident because of its faulty brakes, the mechanic could be responsible for damages. The mechanic’s employer could also be held liable because the employer has a responsibility for the negligence of their employees and the work/duties that they perform.

Defences to Negligence

In order to defend yourself in a negligence suit, you would have to prove:

a) you did not owe the plaintiff a duty of care or

b) you met the standard of careor

c) your acts did not contribute to the cause of the injury

Laws v. Wright, [2001]Jane Laws boarded her horse, Snort, at Trakehner Glen Stables.

Snort was put in a stable beside Salish, a very nervous and temperamental horse owned by Linda Howard. Linda told Jane not to feed Salish because the horse had once bitten her and was too unpredictable. Jane ignored this advice and fed Salish carrots. On February 24, 1998, Salish bit Jane, causing the loss of the tip of Jane’s right thumb. Jane sued the stables for negligence in failing to protect the users of the barn from Salish and for failing to warn her of the potential and real danger Salish posed.

The defendants claimed that the plaintiff had been warned not to feed Salish and to stay away from the horse because sometimes it behaved aggressively. They also pointed out that the stables had large warning signs:

“Caution…Be advised that all equine activities involve inherent risks- proceed at your own risk.”

How do you think the judge ruled this case?

The decision…

The judge dismissed the case on a number of grounds. He found that Jane Laws was very experienced when it came to dealing with horses. She was aware that horses sometimes behaved unpredictably, and she had been warned not to feed this particular horse- both verbally and visually. A duty of care was owed to her and the standard of care was met by the owner of the horse and the barn. In addition, by Jan continuing to feed the horse, she “knowingly assumed the risk” of injury.

While skiing you, you stop to rest just under a rise on the hill. Another skier

sees you at the last minute and is unable to stop. The skier crashes into

you, breaking your leg and ruining your skis. You sue the skier for damages.

Which defence to negligence could apply?

You decide to play in the area’s recreation hockey league. While playing, someone accidentally bumps into you and you fall and break two ribs. You decide to sue the person for their negligent behaviour.

Which defence to negligence could apply?

Jessica is driving along a country road when a bee flies through the open window and stings her. She loses control and hits an oncoming car. She is sued for negligence.

Which defence to negligence could apply?

Corey is driving along route 215 when suddenly there are torrential rains and violent winds. It seems as though a funnel cloud has touched down in Hants County! Visibility is minimal. He attempts to pull over on the side of the road until the weather improves, but in doing so, hits another car as a result of the wind pushing his car ahead two feet.If Corey is sued for negligence, what defence could he apply?

Joey is driving slowly on a snow-covered road because he knows that there may be ice under the snow. He sees a stop sign ahead and gently starts to brake well in advance. Nevertheless, he hits some black ice under the snow and goes off the road, damaging someone’s car. The driver of the other car sues for negligence. What might Joey’s defence be?

Waivers

• A contract that exempts or frees the defendant from the liability in the case of an injury

• Does not automatically release defendant from liability. Need to make sure someone read it, understood it and that you did as you were supposed to in providing care, reasonable behaviour.

Statute of Limitations

• People are expected to sue for damages within a reasonable time.

• Each province has a law known as “Statute of Limitations” specifying the time period in which a person must sue for damages. For dentists, doctors and municipal corporations, this is usually a very short time period.

Smith v. McGillivary 1. Why did the court dismiss Smith’s case?

2. If the case had gone to court, each of the following defences could have been used. Explain how.Standard of Care:The dentist did what any other reasonable dentist would do. Standard of care was not breached. Causation:Removing the plaintiff’s gold inlays might not have been the sole cause for the decay– perhaps he didn’t brush properly or enough or it could have been caused by his diet.