Topic 6 - Unintentional Torts: Negligence & Occupiers' Liability

Question 1

What are the 2 broad classifications of torts?

Answer 1

Intentional and unintentional

Question 2

What are the 3 unintentional torts?

Answer 2

1. Negligence
2. professional liability
3. negligent misrepresentation

Question 3

What is negligence?

Answer 3

Careless conduct, falling below a standard which causes injury to another

Question 4

What is the standard of care?

Answer 4

That of a reasonable person, not perfection

Question 5

What case is a good example of negligence?

Answer 5

Crocker v. Sundance

Because Sundance owed the duty of care to Crocker (appellant) to take all reasonable steps to prevent him from participating in the sport while they were aware he was visibly intoxicated

Question 6

What are the 4 key ingredients of negligence? (all 4 must be established or the lawsuit will fail)

Answer 6

1. A duty of care exists
2. Breach of that duty (breach of “standard of care”)
3. Causation - the defendant’s conduct caused the injury
4. Damages - victim suffered an injury or loss

ABCD

Question 7

A: Duty of Care

What is a misfeasance?

Answer 7

a wrongdoing

Question 8

A: Duty of Care

What is a nonfeasance?

Answer 8

A failure to act

Question 9

Does a nonfeasance always attract liability?

Answer 9

No, a duty of care may not exist unless a particular relationship exists obligating the defendant to act (e.g. a lifeguard has a duty of care to rescue but bystanders do not)

Question 10

What are the 2 parts of the Duty of Care test?

Answer 10

1. Reasonable foreseeability test
2. Anns policy test

Question 11

What is the reasonable foreseeability test?

Answer 11

Is it reasonably foreseeable that the defendant’s conduct is likely to cause injury? If so, then a duty of care is owed.

Question 12

What is a landmark negligence case for duty of care?

Answer 12

Donoghue v. Stevenson

Mrs Donoghue sued a ginger beer manufacturing company after she fell ill from a snail in a bottle of their ginger beer. It was held that it was reasonably foreseeable that failure to ensure the product’s safety would lead to harm to consumers.

Question 13

What is the Anns Policy test?

Answer 13

If injury or loss is foreseeable, are there any policy grounds for NOT imposing duty of care?

Question 14

What are two relevant cases involving the Anns policy test?

Answer 14

Dobson v. Dobson: a pregnant women was sued for the injuries she caused to her fetus by getting into a car accident but was found that pregnant women do not owe duty of care to unborn fetuses in their womb

Childs v. Desormeaux: Social hosts of parties do not owe duty of care to members of the public who may be injured by an intoxicated guest’s conduct

Question 15

B: Breach of standard of care

Uses what test?

Answer 15

Reasonable person test: Did the defendant’s conduct fall below the standard of care of a reasonable person on the same circumstances?

Question 16

As _______ increases so does standard of care

Answer 16

risk

Question 17

Breach of Standard of Care

___________ does not result in the lowering of the standard

Answer 17

inexperience

(novice professionals must perform to the standard of the reasonable professional)

Question 18

Breach of Standard of Care

Are parents liable for the torts of their children?

Answer 18

No, they are not vicariously liable, however, they are liable if negligent themselves (e.g. failing to supervise a child where supervision is necessary and risk of injury/harm is foreseeable)

Question 19

People are liable in a civil case for their careless behavior if that behavior harms someone else. Regarding this area of law, which one of the following statements is TRUE?

(a) The result in the Donoghue v. Stevenson case, in which a woman purchased a tainted bottled soft drink for her friend, was that the manufacturer was not held liable.

(b) As long as one performs to the best of her ability, the person will not be held liable for negligence.

(c) Manufacturers and vendors of their products are liable only to parties who actually purchase those products.

(d) The courts employ the foreseeability test to determine if a duty of care is owed to the plaintiff, but policy considerations may also come into play.

Answer 19

(d) The courts employ the foreseeability test to determine if a duty of care is owed to the plaintiff, but policy considerations may also come into play.

Question 20

In the context of a negligence action, which of the following tests is used to determine if the defendant owed the plaintiff a “duty of care”?

(a) Would a reasonable person have foreseen that type or kind of injury?

(b) Would a reasonable person have acted like that in the circumstances?

(c) Was it reasonably foreseeable that the plaintiff could be injured by the defendant’s conduct?

(d) Would a careful person have acted like that in the circumstances?

Answer 20

(c) Was it reasonably foreseeable that the plaintiff could be injured by the defendant’s conduct?

Question 21

Harry, a troublesome 13 year old, got carried away with a prank and ended up setting fire to and destroying a neighbourhood bakery. The owner of the bakery consults you, asking whether he can sue and who to sue. The best advice would be:

a) An action cannot be brought against such a young teen because of his age. The baker cannot sue.

b) The baker can sue both Harry and his parents. The baker may try to prove that Harry was negligent and that the parents were negligent in failing to adequately supervise him.

c) The baker can sue Harry’s parents directly, for parents are directly liable for torts committed by their kids.

d) A negligence claim can be brought against Harry, despite his age. The parents are vicariously liable as well.

Answer 21

b) The baker can sue both Harry and his parents. The baker may try to prove that Harry was negligent and that the parents were negligent in failing to adequately supervise him

Question 22

C: Causation

What is causation?

Answer 22

one is only responsible for damage one actually causes

Question 23

What are the two parts to test Causation?

Answer 23

1. “But for” test
2. Remoteness test

Question 24

What is the “but for” test?

Answer 24

would the injury have occurred but for the defendant’s conduct? (if the injury would have happened anyway, the defendant did not cause it)

Question 25

What is the remoteness test?

Answer 25

Was the injury too remote to have been foreseen? (if unforeseeable the defendant is not liable)

Question 26

What was the case of Mustapha v. Culligan?

Answer 26

A customer sued a bottled water company for psychiatric injury after seeing flies in his water and claiming that this caused him depressive disorder, phobia and anxiety. The court ruled that the basis of this injury was not foreseeable and hence did not give rise to cause of action (causation).

Question 27

What is the thin skull rule?

Answer 27

if a victim is particularly frail then that is taken into account in the case (victims are taken as they are found)

Question 28

If the ________ ___ ____ ________ (but not the ________) is foreseeable, causation is still established

Answer 28

nature of the injury, but not the extent

Question 29

What are the 3 key points of Damages?

Answer 29

1. must be an actual loss or injury suffered by the plaintiff
2. look to precedents to see what types of injuries the courts have deemed compensable
3. damages may include compensation for future loss of earnings

Question 30

In a negligence action, the plaintiff must prove (among other things) that the defendant’s conduct fell below an acceptable standard. What is the standard that the defendant must meet to avoid liability?

a) that the defendant acted flawlessly.

b) that the defendant acted to the best of his/her ability.

c) that the defendant acted with sincerity and goodwill.

d) that the defendant acted as a reasonable person would in the circumstance.

Answer 30

d)

Question 31

Melissa suffers from osteoporosis. She was recently injured in a motor vehicle collision. The driver of the other vehicle was at fault, being intoxicated at the time. Which of the following statements concerning the applicable law is FALSE?

(a) The thin skull rule dictates that if a victim suffers from a special weakness that makes her more susceptible to injury, the wrongdoer will still have to compensate the victim for the full extent of her injuries.

(b) The plaintiff has the burden of establishing that the defendant was at fault.

(c) To ascertain if the defendant was sufficiently careful, the courts apply the “but for” test.

(d) The courts will compensate Melissa for her bodily injury, for the damage to her car, and also for less visible forms of injury such as nervous shock.

Answer 31

(c) To ascertain if the defendant was sufficiently careful, the courts apply the “but for” test.

The “but for” test is used to test causation not standard of care

Question 32

The __________ has the burden of establishing that the ___________ was at fault

Answer 32

The PLAINTIFF has the burden of establishing that the DEFENDANT was at fault

Question 33

What are 2 defenses to negligence?

Answer 33

1. Contributory Negligence
2. Voluntary assumption of risk

Question 34

What is Contributory Negligence/The Contributory Negligence Act?

Answer 34

When the plaintiff contributed to their own injury (partially caused the injury or did something to make it worse)

Question 35

What happens with liability if the plaintiff is found Contributory Negligent?

Answer 35

Liability is apportioned by % (damages apportioned by %), the court is directed to apportion blame and liability

Question 36

What is voluntary assumption of risk?

Answer 36

defendant is not liable if the plaintiff assumed risk

BUT

1. Did the plaintiff know the risk? (physical risk)
2. Did the plaintiff waive his right to sue? (legal risk)
3. Must be an “informed” consent. If waiver signed, plaintiff must have read and understood what he signed.

Question 37

Who does the term “occupier” refer to in occupiers’ liability

Answer 37

an occupier is anyone who has control of the property; can be either an owner or tenant

Question 38

Under Occupier’s Liability: Common law

How are Visitors (Invitees and Licensees) treated?

Answer 38

visitors are owed a duty of care and occupiers must take reasonable steps to ensure they are reasonably safe

Question 39

Under Occupier’s Liability: Common law

How are Trespassers treated?

Answer 39

Owed a minimal duty of care: no deliberate traps or ways to cause injury

UNLESS the trespasser is a minor

Question 40

Under Occupier’s Liability: Common law

If a trespasser is a minor, how are they treated?

Answer 40

the law will treat them almost like a visitor

Question 41

Under the OCCUPIER’S LIABILITY ACT who is considered to be a visitor?

Answer 41

anyone there lawfully as well as anyone whose presence has become unlawful but who is leaving.

Question 42

Under the OCCUPIER’S LIABILITY ACT what other responsibilities apply to the occupier?

Answer 42

one is responsible not only for the condition of the premises….one is also responsible for the activities and the conduct of third parties on the premises

Question 43

Under the Occupiers Liability Act what are the 3 sections that may reduce one’s potential liability

Answer 43

s.7- Have the visitor “voluntarily assume” the risk (But you may have to show that he understood that risk and chose to voluntarily assume both the physical and legal risk.

s.8- Put up a sign…or have the visitor sign a waiver. (But the sign or the terms of the agreement will only assist you if you can show that these terms were brought to the visitor’s attention! (waiver read and understood).

s.9 – A warning only protects the occupier if “a warning is enough to enable the visitor to be safe”.

Question 44

Under the Occupiers Liability Act what duty does one owe to trespassers that are minors?

Answer 44

(a)IF the occupier knows or should suspect that children are trespassing ……AND

(b) IF danger exists....THEN the occupier will be liable for any injuries UNLESS he can show he took reasonable steps to ensure reasonable safety

Question 45

What section of the Occupiers Liability Act covers the liability of occupiers to minor trespassers?

Answer 45

Section 13

Question 46

Under section 13 of the Occupiers Liability Act

In determining whether the occupier has acted reasonably, the Court considers what 3 factors?

Answer 46

(a) the age of the child,

(b) the ability of the child to appreciate the danger, and

(c) the burden on the occupier of eliminating the danger or protecting the child from the danger as compared to the risk of the danger to the child.

Question 47

According to Alberta’s Occupiers’ Liability Act, the following is a trespasser:

a) anyone there lawfully.

b) anyone whose presence has become unlawful but who is leaving.

c) anyone who is present with the consent of the occupier.

d) anyone who refuses to leave after being asked to leave.

Answer 47

d) anyone who refuses to leave after being asked to leave.