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