Study 2: Negligence: The ABC Rule (Common Law) - Summary Flashcards
Negligence: The ABC Rule (Common Law)
- Typical liability policies have most often responded to lawsuits alleging negligence against the insured (i.e. the defendant in a lawsuit)
- For a plaintiff to establish a cause of action in negligence against a wrongdoer, several elements must be present. According to the ABC rule, a plaintiff is entitled to succeed if three rules are followed to the satisfaction of the court:
- A) A duty of care exists
- B) Breach of that duty occurred
- C) Causal relationship between the breach and damages is shown
Describe negligence and the reasonable person
Negligence requires an understanding of what is meant by the resonable person.
- In Arland v. Taylor, 1955 CanLII 145 (ON CA), the reasonable person is described as a mythical creature of the law whose conduct is the standard by which the courts measure the conduct of all other persons and find it to be proper or improper in particular circumstances as they may exist from time to time.
- The reasonable person is a person of normal intelligence who makes prudence a guide to his or her conduct. He or she does nothing a prudent person would not do and does not omit to do anything that a prudent person would do.
Duty of care and how it arises under common law
- Duty of care: Concept used in tort law to consider whether defendants are obligated to conduct themselves with care toward the injured party who initiates the lawsuit
- Likelihood that duty of care will be established tends to increase in relation to the seriousness of the threat of harm
- Courts tend to interpret this requirement to ensure that innocent parties are protected from the acts of others
Duty to Your Neighbor Principle
- A person must compensate another for the reasonably foreseeable results of his or her negligent 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.
- Donoghue v. Stevenson - outlined “Duty to your Neighbor” as a general concept of relationships giving rise to duty of care
Occupiers’ Duty of Care
Occupiers have a responsibility to keep premises safe for third parties entering the premises. The occupier owes varying levels of care according to the category of entrant: trespasser, licensee, invitee, contractual entrant
The four entrants owed a duty of care
- Trespasser (lowest duty of care, “common humanity”, cannot set traps or deliberately harm)
- Licensee (someone who is there for his/her own enjoyment or purpose, duty of care higher than a trespasser, duty to protect from known concealed traps or dangers)
- Invitee (someone expressly or implied to be invited for a purpose, such as a customer of a store, owed greatest duty of care, occupier must protect from damage or injury from unusual danger)
- Contractual entrant (enters premises under contract with the occupier, such as a hotel guest, duty of care specified in the contract)
Strict Liability for Occupiers
- Permits a tort action to succeed against an occupier without having to prove negligence for unintended harm.
- Strict liability is legal responsibility for 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.
- Rylands v. Fletcher - strict liability was imposed on an occupier who brought dangerous things onto the premises that later escaped and damaged adjoining property.
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 provinces and territories have enacted statute laws that govern occupiers’ liability.
- The rigid categories set out in common law are superseded under these statutes by a single duty of reasonable care toward all visitors on the premises.
- If a person enters premises and is injured, the occupier and not the owner is usually liable. 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.
Liability of a Landlord
- Landlords have a duty to keep their premises in good repair. Must ensure all common areas are safe for use.
- Landlords today engage tenants in a rental agreement, which sets out the duties and responsibilities of both parties
Contractual Duty
A contract usually contains clauses outlining who will be liable for injury to third parties. Most liability 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.
Parents’ Liability
Parents are not generally responsible for the negligence of their children unless
- the child was acting on the parents’ express instructions or under their authority;
- the child was employed by the parent and acting within the scope of the employment; or
- damage was caused by a dangerous thing or animal that the parents allowed the child to control, such as a motor vehicle.
Bailees’ Duty of Care
A bailor is the owner of property who temporarily transfers the possession of property to another. The bailee is the party who receives the property for an agreed temporary period of time. A bailee owes a duty to the bailor to take care of such property. The basis on which the property changed hands affects the level of the duty of care.
Proving Negligence Based on Breach of Statute
The Supreme Court of Canada set out the rules to follow in order to prove a negligence claim based on the breach of a statute in Right of Canada v. Saskatchewan Wheat Pool:
- The statute must have been breached.
- The conduct that was a breach of the statute must also have caused the damage for which compensation is sought.
- The statute must have been intended to prevent the damage that occurred.
- The person making the claim must be among the group the statute was intended to protect
Causal Relationship Between Breach and Damages
For a victim to collect damages from a tortfeasor, he or she must be able to show the court that it was in fact the breach of duty by the defendant that caused the damages being claimed.
- In this regard, the proximate cause rule is applied. The damages must be expressed in monetary terms. Damages fall into two categories: special damages and general damages. Other types of damages that may be awarded in negligence cases include nominal damages and punitive damages.
- Most liability policies only agree to cover compensatory damages. Punitive or exemplary damages do not fall within the definition of compensatory damages under the policy and therefore are not covered.
