Chapter 2 - Negligence, The ABC Rule (Common Law) Flashcards
What are the three elements of the ABC Rule?
A duty of care exists
Breach of that duty occurred
Causal relationship between the breach and damages is shown
Define prima facie
“on the face of it” or “at first glance”
How was the definition of negligence established?
In 1856 by Baron Alderson in the case of Blyth v. Birmingham Water Works
Define negligence
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
How is reasonable person defined?
Defined in Arland v. Taylor
He is a person of normal intelligence who makes prudence a guide to his conduct. He does nothing a prudent person would not do and does not omit to do anything that a prudent person would do…
Define duty of care
An obligation to conduct themselves with care toward an injured party who initiates a lawsuit
What is the duty to your neighbour principle?
Outlined in Donoghue v. Stevenson
Persons will only be held responsible for damage when it should have been reasonably contemplated that injury to another would occur during the conduct
Who is my neighbour?
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
What is the duty when preparing products?
If the absence of reasonable care resulted in injury to the consumer’s life or property
What is the standard of care?
Reasonable conduct depends on the standards of the multiple people within the same category
Who is an occupier?
The person who has immediate supervision and control of the premises with the power to admit or exclude entry of others
What is occupiers’ duty of care?
A responsibility to keep the premises safe for third parties who enter the premises
Which provinces rely on common law as opposed to the occupiers’ duty of care?
New Brunswick & Newfoundland
Saskatchewan outside of hunters and snowmobilers
What are the four categories of person under occupiers’ duty of care?
Trespasser, licensee, invitee & contractual entrant
Define trespasser
One who wrongfully enters without right or permission, they are subject to the lowest level of duty
The occupier must treat the trespasser with common humanity, meaning what?
As defined in Veinot v. Kerr-Addison Mines Ltd.
Factors that duty to trespasser has been breached:
Gravity of probable injury
Likelihood of probable injury
Character of intrusion/trespass
Nature of premises trespassed on
Knowledge the occupier had of likelihood of trespass
Cost to the occupier of prevent the harm
Are trespassers treated differently in they are children? If so, how?
Attractive nuisance or allurement applies to children. Greater steps must be taken to protect children and even if trespassing, they have the same rights as a licensee.
Define licensee
A person who enters with consent of the occupier. Must be protected from known concealed traps or dangers.
Define invitee
A person who enters with permission from the occupier when they have financial or material interest in the matter. The greatest duty of care is extended. Any unusual danger must be protected from.
Define contractual entrant
A person who enters under contract with the occupier. Contract may state the duty of care.
Is there any obligation to strangers not entering the land?
In some circumstances, yes. If the property influences a public area, then the occupier must keep the area free of danger. The negligence of the occupier must be proven.
Define strict liability
Established in Rylands v. Fletcher
Liability without the necessity to prove negligence, liability would be automatically assumed.
What must a plaintiff show to prove strict liability?
- 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
What is the Good Samaritan doctrine?
A legal principle that provides defense for attempted rescue by someone voluntarily helping a victim in distress. There is no duty to rescue.
How is occupier’s liability governed?
Most provinces have statue laws which take precedence over common law
When could the owner actually be held liable?
If the injury is due to lack of repair and the owner had contracted to maintain the premises in safe condition, the occupier could recover from the owner if they requested the repairs be done
What outlines the obligations of a landlord?
The landlord and tenants legislation in common law provinces
What happens if there is a conflict between a lease agreement and an act governing a tenancy situation?
The legislation within the act will prevail
How are hold-harmless and indemnity provisions utilized?
To transfer liability from where it would normally lie to someone else and to direct who shall pay any expenses
What is meant by liability assumed under contract?
Most liability policies will only cover this. Incidental and insured contracts are covered. Other contracts can be endorsed on if not covered.
Name a limitation imposed within the common law of contracts
A party is not allowed to contract out of their negligence
In what circumstances are parents responsible for the negligence of their children?
- 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 (ie. motor vehicle)
What is a bailor?
The owner of property who temporarily transfers the possession of property to another
What is a bailee?
The party who receives the property from a bailor for an agreed temporary period of time. They owe duty to the bailor to take care of the property.
During a bailment, who must prove negligence?
The onus is on the bailee to disprove any negligence
What were the conditions outlined in R. in Right of Canada v. Saskatchewan Wheat Pool in regards to breach of a statute?
- The statue must have been breached
- The conduct which was a breach of the statue must also have caused the damage for which compensation is sought
- The statue must have been intended to prevent the damage which occurred
- The person making the claim must be among the group which the statue was intended to protect
What is meant by foreseeability?
Whether a reasonable person could foresee that the act contemplated would likely result in harm to someone. What could be foreseen must coincide with the harm.
What is the test of foresight?
Used by the courts to establish whether or not it was reasonable to foresee a certain action arising out of consequence.
What is proximate cause?
An uninterrupted unfolding of events without the intervention of another main cause from the initial act to conclusion
What are the two traditional types of compensatory damages?
Special damages and general damages
What are special damages?
Out-of-pocket expenses such as doctor bills, damaged clothing and salary already lost
What are general damages?
Non-monetary aspects such as pain and suffering, loss of enjoyment of life, future expenses and future losses of salary and permanent disability
What is meant by pure economic loss and how does the law respond?
Pure economic losses are purely financial and have no physical injury associated with the loss.
The law is more restrictive in attempting to recover through negligence.
What are nominal damages?
Right of action but has suffered no real loss. Examples include libel, slander of false arrest.
What are punitive or exemplary damages?
Usually in addition to other damages, it is punishment for reckless or wilful behaviour.
Are punitive damages covered under a liability policy?
Not under most liability policies.
What are the exceptions to the harm expected or intended restriction?
Circumstances where an insured is compelled to use force or reasonable force used to protect person or property
Liability policies only cover fortuitous events, what is meant by this?
It is not a certainty and is an accidental event.
What are two situations in which coverage under a liability policy may be brought in front of a court to determine?
1) Whether the insurer must indemnify the policyholder for the damages awarded
2) Whether the insurer owes the policyholder a defense under the policy
Summarize the ABC Rule.
Anyone who causes damages to someone else, where the act or inaction would foreseeably cause damages and where the extent of the damages was also foreseeable, will be held liable, as long as the act or inaction was the direct or proximate cause of the loss.
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?
A duty of care exists
Breach of that duty occurred
Causal relationship between the breach and damages is shown
What case furnished the common law world with the definition of negligence?
Blyth v. Birmingham Water Works in 1856
Define negligence
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
What is the common law duty of care?
An obligation to conduct yourself with care towards the injured party
How was neighbour defined in Donoghue v. Stevenson?
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.
Give an example of standard of care.
[any example]
ie. Brain surgeon performs with similar professional skillset as another.
What duty is owed to a licensee according to the common law?
Duty to protect a licensee from known concealed traps or dangers.
Give an example of a contractual entrant.
Hotel guest.
[other examples also suitable]
What duty do landlords have to their tenants?
Keep their premises in good repair
How did the case of Polemis and Furness Withy & Co. Ltd. explain foreseeability and its consequences?
A wooden plank was negligently dropped into the hold of a ship which caused a spark to ignite gas vapour and destroy the ship. They were held liability despite the premise that the fall of the plank could not have been expected to destroy the ship.
How did foreseeability develop in the Wagon Mound case?
Overseas Tankship (U.K.) Ltd. v. Morts Dock and Engineering Co.
The Polemis decision was overruled in this 1961 case. A freak incident led to fuel being ignited and causing damage. Expert opinions believed this was highly unlikely. Despite the negligence, it was not reasonably foreseeable that this could occur and the defendants were found not liable.
What concept similar to foreseeability is used as a defence against liability?
Remoteness of damage
What factor is traditionally necessary for loss of profit to be recoverable?
Physical injury to person or property
The duty to your neighbour principle which gave rise to a duty of care arose in this leading case.
Donoghue v. Stevenson
Under common law, occupiers and owners of premises owe entrants a certain level of care depending on the circumstances in which they enter. Who is granted the highest duty of care?
Invitee
The Supreme Court set out a list of factors to consider when assessing an occupier’s duty to a trespasser. This ruling was made in which legal case?
Veinot v. Kerr-Addison Mines Ltd.
Before George took part in a white water rafting excursion, he and his friends had to sign the rafting company’s contract. In the contract was a clause that would relieve the rafting company of liability in case someone was injured. What kind of provision does this transfer of liability clause represent?
Hold-harmless provision
Which case defined a contractual entrant?
Cariss v. Buxton
Which case defined strict liability?
Rylands v. Fletcher
Which case defined a reasonable person?
Arland v. Taylor
Which case defined proximate cause?
Scott v. Shepherd
Outline the definition of a reasonable person as outlined in Arland v. Taylor
- Mythical creature of the law
- Whose conduct is standard by which courts measure all other persons
- Courts judge conduct proper or improper
A reasonable person is NOT:
Extraordinary, unusual, superhuman, required to display highest skill, a genius, one who has unusual powers of foresight
A reasonable person IS:
Of normal intelligence, makes prudence a guide to conduct, one who does what a prudent person would do or nothing a prudent person would not do, does not omit to do anything a prudent person would do, guided by considerations that ordinarily regulate the conduct of human affairs, standard of conduct adopted in community by people or ordinary intelligence and prudence
