2.2 - A Duty of Care Flashcards
Explain duty of care and how it arises under common law
Definition - “duty of care”
-the obligation that a person has to exercise reasonable care with respect to the interests of others, including protecting them from harm
A duty of care
-the duty of care concept is used in tort law to consider whether defendants are obligated to conduct themselves with care toward the injured party who initiates the lawsuit
-the likelihood that a duty of care will be established tends to increase in relation to the seriousness of the threat of harm
-the courts tend to interpret this requirement liberally to ensure that innocent parties are protected from the acts of others
-statute laws and evolving common law have steadily enlarged the scope of the duty of care
Duty to Your Neighbour Principle
-the law of negligence requires a person to compensate another for the reasonably foreseeable results of his or her negligence conduct
-the law will only hold persons responsible for damage to others when it should have been reasonably contemplated that injury to another would occur during the conduct
-this is known as the duty to your neighbour principle, which Lord Atkin outlined as a general concept of relationships giving rise to duty of care in Donoghue v. Stevenson
-“Who, then in law, is my neighbour? The answer seems to be - “persons who are so closely and directly affected when I am directing my mind to the acts or omissions which are called in question”
-“a manufacturer of products which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in injury to the consumer’s life or property, owes a duty to the consumer to take reasonable care.
-this case dealt with the situation when there was no “contract” to breach between the manufacturer and the friend who did not purchase the item themselves, but set the precedent that duty of care is owed to final consumer
-once a duty of care has been established, the courts consider the standard of care applicable to the particular circumstances. What is reasonable conduct depends on the standards applied to persons within the same category - ex. a specialist within the medical field is compared to other specialist in that field or the standards outlined by a professional association for his or her specialty
Occupiers’ Duty of Care
-an occupier is the person who has the immediate supervision and control of the premises and the power to admit and exclude the entry of others
-occupiers have a responsibility to keep premises safe for third parties entering the premises
-under common law, the rights of persons who enter a building or come onto land and are injured depend on the circumstances under which they came to be on the premises
-there can be more than one occupier of the premises and the owner is not necessarily the occupier
-obligation to keep the premises safe does not mean that the occupier can be found liable for all hazards
-the occupier owes varying levels of care according to the category of entrant
-the four main categories of entrants developed in law:
> Trespasser
> Licensee
> Invitee
> Contractual entrant
-Common Law prevails in NB, NF&L, Nunavut, the Northwest Territories, and Yukon, which have not enacted occupiers’ liability legislation
-SK has some specific legislation governing the liability of occupiers to hunters and snowmobilers but otherwise it is governed by the common law as well
-in QC, the equivalent of occupiers’ liability is governed by civil law
-BC, AB, MB, NS, ON, and PEI have enacted occupiers’ liability statutes
Entrant Category #1 - “Trespasser”
-including Definition
> Definition > “Trespasser = a person who wrongfully enters onto someone else’s land with neither the right nor the permission to be there.
-the occupier must treat the trespasser with “common humanity”.
-in ‘Veinot v. Kerr-Addison Mines Ltd., the Supreme Court of Canada set out a list of factors to consider in determining whether an occupier’s duty to trespassers had been breached:
-gravity of the probable injury
-likelihood of the probably injury
-character of the intrusion or trespass
-nature of the premises trespassed on
-knowledge the occupier had or ought to have had of the likelihood of a trespasser’s presence
-cost to the occupier of preventing the harm
-historically, child trespassers were protected by the notion of attractive nuisance or allurement
-certain properties or premises, such as a construction site, would tempt children to trespass by their very nature, so they required occupiers to take greater steps to safeguard them. The duty to the child trespasser was raised to that of a licensee
Entrant Category #2 - “Licensee”
-including Definition
> Definition > “Licensee” = a person who has permission to enter a premises for his or her own purposes
-an occupier owes a greater duty of care to a licensee than to a trespasser
-an occupier has a duty to protect a licensee from known concealed traps or dangers
-an example of a licensee is a person given permission to enter a home, such as a guest or a friend. This person is on the property with the knowledge or consent of the occupier and uses the property to access neighbouring properties
-the occupier has not taken steps to stop the use and access to the property for this purpose
-another example is property owners who must use a private roadway to access their hunting camp. The road is owned by a private entity, allowing camp occupants to use the road for access only. The property owners must ensure that the road is clear of any known dangers, even ensuring that snow is removed during the winter
-if damage or injury is suffered by camp occupants while they’re using the roadway, the property owners could be held liable under negligence laws
Entrant Category #3 - “Invitee”
-including Definition
> Definition > “Invitee” = a person who is expressly or impliedly invited onto the premises for some purpose involving economic or potential economic benefit to the occupier of the premises. For example, a customer entering a store for the purpose of making a purchase
-an invitee is a person who enters the premises with permission when the occupier has some financial or other material interest in the matter
-the occupier owes the greatest duty of care to an invitee
-the occupiers duty is to exercise reasonable care to prevent injury to such a person from unusual danger of which the occupier knows or ought to have known
-generally a commercial risk, such as a retail store, has customers, and customers arre regarded as invitees whom the store owes a greater duty of care to than it does trespassers or licensees
-the greater number of people in a building, the greater the potential for an accident or injury to occur and for the occupier to face liability
-both licensees and an invitees have permission to be on premises, but the main difference is that the licensee is there for his or her own enjoyment, whereas an invitee is there for the benefit of the occupier
Entrant Category #4 - “Contractual Entrant”
-including Definition
> Definition > “Contractual Entrant” = a person who enters onto premises under a contract with the occupier; for example, a hotel guest or a theatre-goer
-the occupier’s duty of care to a contractual entrant is as specified in the contract.
-If the contract does not specify the occupier’s obligations regarding the entrant’s safety, the contract is said to have an implied (unwritten) term to the effect that the premises are as safe for the purpose as reasonable care and skill on the part of anyone can make them
-this implied contractual term amounts to the occupier’s duty to the entrant
-an example of a contractual entrant occurs when someone pays to stay at a hotel for a few days
Definition - “Strict liability”
-liability imposed by a court or by a statute in the absence of fault when harm results from activities or conditions that are extremely dangerous, unnatural, hazardous, extraordinary, abnormal, or inappropriate
Strict liability for occupiers
-the doctrine of strict liability permits a tort action to succeed against an occupier without having to prove negligence for unintended harm
-in ‘Rylands v. Fletcher’, strict liability was imposed on an occupier who brought dangerous things onto the premises that later escaped and damaged adjoining property
-many jurisdictions have a ‘Dog Owners’ Liability Act’, which imposes strict liability on pet owners for any injuries caused by their pets
-strict liability is a legal responsibility for the damages, even if the person is not at fault or negligent
-pollution liability and clean-up costs also fall under the doctrine of strict liability
-using ‘Rylands v. Fletcher’ to establish a case of strict liability, the plaintiff must show the following:
>the occupier used the land in a way that changed its natural form or use
>the occupier brought something onto the land that was likely to do mischief if it (a potentially dangerous thing) escaped
>the escape of the dangerous thing did occur
>the escape resulted in damage to the plaintiff
Duty of care Legislation
-most prov. and terr. have enacted statute laws that govern occupiers’ liability that establish or outline the duty of care owed in specific areas. These take precedent over the common law
-the rigid categories set out in the common law are superseded under these statutes by a single duty of reasonable care toward all visitor on the premises, however, a more limited duty applies in a situation where a visitor has willingly assumed the risk or is trespassing.
-In fact, evolving case law has been receptive to acknowledge the direction of statute law
-if a person enters premises and is injured, the occupier generally faces a greater liability risk than the owner. However if the owner knew about the conditions that gave rise to the damages and did not take the proper steps to notify or rectify the situation with the occupier, then the owner will likely also be found liable
-if the injury is caused by lack or repair and the owner had contracted to maintain the premises in a safe condition, the tenant could in all probability recover from the owner if he or she had requested that the repairs be done
Liability of a landlord
-the obligations of landlords to their tenants are the subject of the landlords and tenants legislation in the common law prov. and terr.
-for example, landlords have a duty to keep their premises in good repair
-in residential multiple-occupancy structures like apartment buildings, landlords are responsible for maintaining all the common areas for safe use
-common areas, those used by all tenants, can include entryways, hallways, elevators, walkways, driveways, parking lots, playgrounds and recreational areas
-in most situations today, landlords engage their tenants in a lease or rental agreement, which is a contract, and it is used to define the duties and responsibilities of both parties.
-invitees or clients of tenants, because they are not parties to the contract, cannot rely on obligations set out in the lease agreement. When there is a conflict between an act governing a tenancy situation and the lease, the legislation will prevail
Definition - “hold-harmless agreement”
-an agreement that allows one party to protect another party against any future losses or claims that may result from a particular activity. Also known as an indemnity agreement
Definition - “indemnity agreement”
-a written contract entered into between indemnitor and surety in which the indemnitor secures surety against loss the surety may sustain as a result of having issued a bond for a third party (usually a company owned by the indemnitor) or for the indemnitor
Contractual Duty
-a contract usually contains clauses outlining who will be liable for injury to third parties, the contract should be reviewed to determine who is to bear the financial burden for losses
-it is often the party with the most bargaining power who is able to request and obtain an advantageous shift of liability
-hold-harmless agreements and indemnity agreements are used together to transfer liability from where it would normally lie to someone else and to direct who shall pay for expenses related to defending an action or satisfying a judgement
-there is no standard form or uniform practice used to accomplish this
-most liability insurance policies only cover ‘liability assumed under contract’ for certain categories of contracts
-wording used in policies has changed from identifying covered contracts as “incidental” contracts to “insured” contracts
-a policy can be endorsed to cover a contract that is otherwise not covered
-liability assumed by an insured under contract has often been limited to refer to liability incurred when someone promises to hold harmless and indemnify another and does not refer to liability that results from a fundamental breach of contract > for example, the principal purpose of a lease agreement is to specify rental charges and define the terms of occupancy. The liability insurance policy does not pay for rental charges should a tenant not pay the rent and therefore be in breach of contract.
-As a secondary contractual obligation though, liability arising out of certain possible future occurrences can be transferred
-the lease may contain an undertaking to maintain the premises - normal wear and tear excepted
-a fire on the premises may trigger the tenant’s legal liability to pay for damages to the rented property
-hold-harmless and indemnity agreements are often included in leases; construction contracts; contracts between custodians or property and owners; sales contracts; and supply, service, railroad side track, elevator rental, and maintenance agreements
-the provisions are likely to be specifically designed for the contract in question
-for example, a landscape contractor may agree to pay for restoring any structural damage caused by employees or machinery while landscaping or excavating
-other examples include winter maintenance contractors who assume liability for injuries from slip and falls and property managers who assume liability of the property owners for the management or maintenance of the premises
-in general, any party to a contract has the right to agree to pay or indemnify a second party for described losses arising out of the activities under the contract
-there are some limitations imposed within the common law or contracts and within the statutes of some jurisdictions regarding a party’s right to impose such terms on a second party
-the court have held, for example, that parties should not be allowed to contract out of their negligence.
-If, for example, a party to a contract fails to carry out a duty, it is a breach of contract and this failure can be held as a ‘prima facie’ finding of liability against the failing party
