Unintentional Torts

Question 1

Negligence

Answer 1

Is the careless causing of harm to a person or property of another

Question 2

Negligence 4 Part Test

Answer 2

1. The defendant owed the plaintiff a duty of care
2. The defendant breached that duty of care by falling below the standard of care
3. Damages/ injury are caused
4. The defendant’s actions caused the damages/injury

Question 3

Duty of Care

Answer 3

• the legal duty imposed on every one to take reasonable care to avoid injury to others
• the injury must be foreseeable
• the duty is not all encompassing (owe a duty to the other person)

Question 4

Test for Duty of Care

Answer 4

1. Is there a sufficiently close relationship between the parties
   - So that, in the reasonable contemplation of the [defendant], carelessness on its part might cause damage to that person (reasonably foreseeable)
   Ex – doctor-patient, lawyer- client
2. Are there considerations which ought to be negative or limit
   - The scope of the duty
   - The class of persons whom it is owed
   - The damages to which a breach of it may give rise

Question 5

Standard of Care

Answer 5

• After you have confirmed and proved that they owed a duty of care, did they breach the standard of care?
• Objectively as a third party, would a reasonable person have done that given the circumstances (has to be contextual

Question 6

What is a reasonable ordinary person?

Answer 6

To find this there should be standards (health and safety), regulations, following practices, finding experts to explain how things are done (academic or practical experts)

Question 7

Special Standard of Care

Answer 7

• The reasonable and competent person in a specific profession, where someone requires a specialized skill and knowledge
• The professional standard of care
• Children – the standard of a reasonable child of the same age, unless engaging in an adult activity

Question 8

Other factors when considering the standard of care (not a part of negligence test)

Answer 8

• Degree of the likelihood that harm will occur
  Ex - ice cream scooper vs doctor
• The potential severity of the harm
• The social utility of the action involved
  Do not want to set the standard too high and scare employees off, Ex – nurse vs doctor
• The feasibility of eliminating risk

Question 9

Causation

Answer 9

• Only entitled to the damages where there was a breach in the standard of care (not the ones prior to the incident)
• If there is no harm/ loss there is no negligence
• But for test
• The defendant does not need to be the sole cause of the harm, it is sufficient for the plaintiff to show that the defendant’s conduct was a cause of the harm/loss

Question 10

But for test

Answer 10

• Would the injury have occured “but for” the conduct of the defendent? If test, then this is the cause of the loss/harm
• Ex – texting and driving and hit black ice, breached the standard fo care by texting and driving, but even if you were paying attention it would be likely that you would have hit the car

Question 11

Remoteness

Answer 11

• The conduct of the defendant cannot be too removed/ remote from the harm caused
• Element of foreseeability is required – the fact that harm could occur (but not necessarily the specific damages) had to be foreseeable at the time of the tort

Question 12

Damages

Answer 12

• There must be damages to sue
• What damages did they suffer?
• Have to prove the damages – have receipts, and all the evidence

Question 13

Types of Damages

Answer 13

1. Special (pecuniary)
2. General
3. Punitive

Question 14

Special (pecuniary)

Answer 14

• quantifiable (sales losses)

Question 15

General

Answer 15

• non-quantifiable, courts do their best to compensate

Question 16

Punitive

Answer 16

• rare
• punishment for egregious conduct
• ex – out of pocket losses, for a car accident it would be hospital bills, PT, lost wages)

Question 17

Professional Negligence

Answer 17

• Professionals (lawyers, doctors, accountants) may be held to a higher standard and must avoid conflicts of interest
• What would a reasonable professional done in that situation
• Specialists within fields of expertise are held to a higher standars than generalists
• Ex – heart surgeon has a higher standard of care than a family doctor when completing heart surgery

Question 18

Product Liability

Answer 18

1. Negligent Design
2. Negligent Manufacture
3. Failure to warn

Question 19

Negligent Design

Answer 19

• The product that was made
• Ex – the car itself

Question 20

Negligent Manufacture

Answer 20

• The manufacturing plant

Question 21

Ongoing Duty to Warm

Answer 21

• Dangerous products
• Products that are discovered to be defective
• Scientific and technological advancements

Question 22

Prove Product Liability

Answer 22

The plaintiff must prove that the product, as designed, manufactured, or labelled, fell short of reasonable standards which failure caused the products to be dangerous and harmful

Question 23

Occupier’s Liability Act

Answer 23

• owes a duty of care for people who come onto their land
• Ex – need to shovel the driveway when it snowns

Question 24

Occupier

Answer 24

person who has control over the property

Question 25

Occupier's Liability Act to Trespassers

Answer 25

- Still owe a duty of general humanity - Ex - Occupier cannot set traps – cannot cause deliberate harm

Question 26

Where the use of land is to encourage activity

Answer 26

- user of premises willingly assumes all risk - Ex – people who own a lot of land up north and allow people to cross country ski. We want to encourage landowners to allow the public to use it

Question 27

Where the use of land is to encourage activity

Answer 27

- user of premises willingly assumes all risk - Ex – people who own a lot of land up north and allow people to cross country ski. We want to encourage landowners to allow the public to use it

Question 28

Defences to Negligence

Answer 28

1. Contributory Negligence 2. Voluntary Assumption of Risk

Question 29

Contributory Negligence

Answer 29

- Plaintiff contributed to their own injury (in part) and therefore should be partially liable for their own injuries Occurs in three ways 1. Plantiff can contribute to the incident that caused the injury 2. The plantiff can expose themselves to a risk of injury 3. The plantiff can fail to take reasonable steps to minimize the injury after it has occured (mitigation) Partial defence – the court will apportion damages to the degree of fault or negligence on the part of the defendant

Question 30

Voluntary Assumption of Risk

Answer 30

- The plaintiff is engaged in an inherently risky activity - The plaintiff knew of the risks and voluntarily assumed the risk Complete defence – Took on the risk and knew all the possible risks This is the equivalent of consent

Question 31

Failure to Warn

Answer 31

learn something later, it is the company's duty to warn the customers