Chapter 2

Question 1

What three elements are required to be established to the satisfaction of the court for a plaintiff to establish a cause of action in negligence against a wrongdoer?

Answer 1

A duty of care exists

Breach of that duty occurred

Causal relationship between the breach and damages is shown

Question 2

What case furnished the common law world with the definition of negligence?

Answer 2

Blyth v. Birmingham Water Works (1856)

Question 3

Define Negligence

Answer 3

The omission to do something which a reasonable (person), guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable (person) would not do.

Question 4

Prima Facie

Answer 4

“On the face of it” or “at first glance.”

On first examination, a matter appears to be self-evident from the facts presented.

Question 5

What is the common law duty of care?

Answer 5

Used in tort law to consider whether defendants owe an obligation to conduct themselves with care towards the injured party who initiates the lawsuit.

Question 6

How has reasonable person been defined in Canada?

Answer 6

He is not an extraordinary or unusual creature

He is not superhuman

He is not required to display the highest skill of which anyone is capable

He is not a genius who can perform unusual feats

He is not possessed of unusual powers of foresight

He does nothing a prudent person would not do and does not omit to do anything that a prudent person would do.

Question 7

How was neighbour defined in Donoghue v. Stevenson?

Answer 7

Persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

Question 8

The Duty to Your Neighbour Principle

Answer 8

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.

Question 9

Standard of Care

Answer 9

Considered for the particular circumstances.

What is reasonable conduct depends on standards applied to persons within the same category.

e.g. A brain surgeon would be expected to perform on a professional level in a similar way as other brain surgeons with similar experience and training.

Question 10

In law, who is an occupier?

Answer 10

The person who has the immediate supervision and control of the premises and the power to admit and exclude the entry of others.

Question 11

In common law, what duty is owed to strangers who do not enter a premises or land?

Answer 11

An occupier of property has a duty to keep the property free from any danger to anyone immediately next to their property (such as those on a highway).

Question 12

In common law, what duty is owed to owners and occupiers of adjoining properties?

Answer 12

They must not bring dangerous items onto their property that might escape and damage adjoining property (see strict liability).

Question 13

What four categories of persons in common law might enter premises?

Answer 13

A. Trespasser

B. Licensee

C. Invitee

D. Contractual Entrant

Question 14

Trespasser

Answer 14

One who wrongfully enters onto someone else’s land with neither the right nor permission to be there.

Question 15

What duty of care is owed to the trespasser?

Answer 15

Common humanity

Question 16

List the factors considered in Veinot v. Kerr-Anderson Mines Ltd to determine whether occupier’s duty to a trespasser has been breached.

Answer 16

A. Gravity of the probable injury

B. Likelihood of the probable injury

C. Character of the intrusion or trespass

D. Nature of the premises trespassed upon

E. Knowledge the occupier had
- or ought to have had of the likelihood of a trespasser’s presence

F. Cost to the occupier of preventing the harm

Question 17

How does allurement relate to an occupier’s duty of care?

Answer 17

AKA: attractive nuisance

Property or premises that would tempt children to trespass by the nature of their properties required occupiers to take greater steps to safeguard them.

Duty is raised to that of a licensee.

Question 18

Licensee

Answer 18

A person who enters upon land with the consent of the occupier.

Question 19

What duty is owed to a licensee according to the common law?

Answer 19

An occupier has a duty to protect a licensee from known concealed traps or dangers.

Question 20

Invitee

Answer 20

A person who enters onto the premises with permission when the occupier has some financial or other material interest in the matter.

Question 21

What duty of care is owed to the invitee by the occupier under the common law?

Answer 21

To exercise reasonable care to prevent injury to such a person from unusual danger of which the occupier knows or ought to have known.

Question 22

Contractual Entrant

Answer 22

A person who enters onto premises under a contract with the occupier; for example, a hotel guest or theatre-goer.

Question 23

What duty is owed to the contractual entrant?

Answer 23

If the contract states the obligations relating to the entrant’s safety, the contract governs.

If not, the contract is said to have an implied 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.

Question 24

Strict Liability

Answer 24

Permits a tort action to succeed against an occupier without having to prove negligence for unintended harm as long as the plaintiff can prove the surrounding circumstances whereby a dangerous thing was kept on the defendant’s land and it escaped causing damage.

Question 25

What must the plaintiff show to establish a case of strict liability?

Answer 25

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.

Question 26

Good Samaritan Doctrine

Answer 26

A legal principle that provides a defence against torts for an attempted rescue by someone who voluntarily helps a victim in distress.

Question 27

Which law takes precedence when statute law and common law are both involved.

Answer 27

Statute law that governs occupier’s liability.

Question 28

Would an occupier or an owner be liable if a person enters premises and is injured?

Answer 28

The occupier is usually liable.

The exception is if the injury is caused by a lack of repair, which the tenant had requested be repaired by the owner, and the owner had contracted to maintain the premises in a safe condition. The tenant could then probably recover from the owner.

Question 29

What duty do landlords have to their tenants?

Answer 29

• To keep their premises in good repair.
• To maintain all the common areas for safe use which includes the structure generally.
• Lease or rental agreement can also define the duties and responsibilities of both parties; however, invitees or clients of the tenant are not bound to those agreements.

If there is a conflict between an act governing a tenancy situation and the lease, the legislation will prevail.

Question 30

What is the purpose of hold-harmless and indemnity provisions in a contract?

Answer 30

They 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 judgment.

Question 31

Liability Assumed Under Contract

Answer 31

Liability incurred when one promises to hold harmless and indemnify another, and does not refer to liability that results from a fundamental breach of contract.

Question 32

Under what three circumstances will parents be responsible for the negligent actions of their children?

Answer 32

• Child was acting on the parents’ express instructions, or under their authority.
• Child was employed by the parent and acting within the scope of the employment.
• Damage was caused by a dangerous thing or animal which parents allowed the child to control, such as a motor vehicle.

Question 33

Bailor

Answer 33

The owner of property who temporarily transfers the possession of property to another.

Question 34

Bailee

Answer 34

The party who receives the property for an agreed temporary period of time.

Question 35

Why must bailees exercise a high standard of care with property entrusted to them?

Answer 35

When a bailment occurs, the onus shifts to the bailee to disprove negligence.

The basis upon which the property changed hands affects the level of the duty of care.

Question 36

What rules were developed to prove negligence in R. in Right of Canada v. Saskatchewan Wheat Pool?

Answer 36

a. The statue must have been breached.
b. The conduct which was a breach of the statute must also have caused the damage for which compensation is sought.
c. The statute must have been intended to prevent the damage which occurred.
d. The person making the claim must be among the group which the statute was intended to protect.

Question 37

How did the case of Polemis and Furness Wilthy & Co Ltd explain foreseeability and consequences?

Answer 37

When damage resulted from a negligent act, the negligent party would be held responsible, even though a reasonable person could not have foreseen such dire consequences.

Question 38

How did foreseeability develop in the Wagon Mound case?

Answer 38

It was not reasonably foreseeable that such circumstances would arise and, therefore, despite their negligence, the defendants were not liable.

Question 39

What concept similar to foreseeability is used as a defence against liability?

Answer 39

Remoteness of damage

Question 40

What is proximate cause?

Answer 40

The immediate and effective cause.

An uninterrupted unfolding of events from the initial act to the conclusion, without the intervention of another main cause.

i.e. a breach of a duty of care causes the damages being claimed.

Question 41

What are compensatory damages?

Answer 41

Refer to money that will reimburse the plaintiff for the injury or loss actually suffered.

Question 42

What are the two main categories of damages?

Answer 42

i. Special damages

ii. General damages

Question 43

Special Damages

Answer 43

Awarded for out-of-pocket expenses such as doctor bills, damaged clothing and salary already lost.

Question 44

General Damages

Answer 44

Compensate the victim for non-monetary, hard to quantify aspects of a claim.

E.g. pain and suffering, loss of enjoyment of life, future expenses and future loss of salary, and permanent disability

Question 45

What factor is traditionally necessary for loss of profit to be recoverable?

Answer 45

Physical injury to person or property.

However, a professional who renders a service to protect or advance someone’s economic interests would be liable for any pure economic loss caused by the professional’s negligence.

Question 46

Pure Economic Loss

Answer 46

Losses that are purely financial without any physical injury.

Consequential economic loss would involve lost income due to physical injury to person or property.

Question 47

Nominal Damages

Answer 47

Awarded when the plaintiff has a right of action but has suffered no real loss (libel, slander, or false arrest cases).

Question 48

Punitive or Exemplary Damages

Answer 48

Generally awarded, in addition to other damages, as punishment to the defendant where reckless or wilful behaviour is a factor.

Question 49

How are claims involving loss of production often valued?

Answer 49

Consequential economic loss - the money that would have been made on the product had the loss not occurred.