Prepared by Douglas Peterson, Prepared by Douglas Peterson,

University of AlbertaUniversity of Alberta 5-5-11

Part 2 – The Law of TortsPart 2 – The Law of Torts

Chapter 5Chapter 5Negligence and Negligence and

Unintentional TortsUnintentional Torts

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OverviewOverview

Concept of Tort liabilityConcept of Tort liability Strict liabilityStrict liability Vicarious liabilityVicarious liability

NegligenceNegligence Proximate causeProximate cause Duty of careDuty of care ForseeabilityForseeability Res ipsa loquitorRes ipsa loquitor

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OverviewOverview

Occupiers liabilityOccupiers liability Manufacturers' liabilityManufacturers' liability NuisanceNuisance DefensesDefenses

Contributory negligenceContributory negligence Volenti non fit injuriaVolenti non fit injuria Act of godAct of god WaiverWaiver ReleaseRelease Statute of limitationsStatute of limitations

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OverviewOverview

RemediesRemedies CompensationCompensation Nominal damagesNominal damages Punitive damagesPunitive damages Court ordersCourt orders

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Tort LiabilityTort Liability

Concept – one should not intentionally cause injuries Concept – one should not intentionally cause injuries to anotherto another

Initially only deliberate direct injury was actionableInitially only deliberate direct injury was actionable Strict LiabilityStrict Liability

Responsibility for loss regardless of the circumstancesResponsibility for loss regardless of the circumstances Strict liability still exists but a move towards negligenceStrict liability still exists but a move towards negligence

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Vicarious LiabilityVicarious Liability

DefinitionDefinition The liability at law of one person for the acts of anotherThe liability at law of one person for the acts of another Employers (deep pockets theory)Employers (deep pockets theory) If done during the course of employmentIf done during the course of employment Reflected through insurance coverageReflected through insurance coverage

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Evolution of NegligenceEvolution of Negligence

NegligenceNegligence This type of liability enlarged as society changed and This type of liability enlarged as society changed and

became more civilizedbecame more civilized Proximate Cause (Causation)Proximate Cause (Causation)

A cause of injury directly related to an act of a A cause of injury directly related to an act of a defendantdefendant

Must be a connection between the defendant’s act and Must be a connection between the defendant’s act and the plaintiff’s injurythe plaintiff’s injury

Cannot be too remoteCannot be too remote

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Duty of CareDuty of Care

Duty not to injure another personDuty not to injure another person A right-duty relationshipA right-duty relationship Duty not to injure must be owed to the party suffers the Duty not to injure must be owed to the party suffers the

injuryinjury Foreseeability (the reasonable person)Foreseeability (the reasonable person)

A standard of care used to measure acts of negligenceA standard of care used to measure acts of negligence

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ForeseeabilityForeseeability

A reasonable person would foresee that their actions A reasonable person would foresee that their actions would cause harm to anotherwould cause harm to another If yes = liableIf yes = liable If no = not liableIf no = not liable A flexible conceptA flexible concept

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Determining NegligenceDetermining Negligence

Intentional – willfulIntentional – willful Unintentional – negligence or recklessnessUnintentional – negligence or recklessness

Usually an omission on the part of someoneUsually an omission on the part of someone Duty to refrain from acting negativelyDuty to refrain from acting negatively No duty to act a certain way (positive duty)No duty to act a certain way (positive duty)

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Negligence (Liability)Negligence (Liability)

3 Requirements3 Requirements1.1. Defendant owes the plaintiff a duty not to injureDefendant owes the plaintiff a duty not to injure

2.2. Defendant’s actions constitute a breach of that dutyDefendant’s actions constitute a breach of that duty

3.3. Plaintiff suffers some injury as a direct result Plaintiff suffers some injury as a direct result (causation) of the defendant’s actions(causation) of the defendant’s actions

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Nature of Duty of CareNature of Duty of Care

Varies based on:Varies based on: Nature of activityNature of activity Nature of personNature of person

Subject to test of foreseeability and the reasonable Subject to test of foreseeability and the reasonable personperson

Breach of duty is a factual questionBreach of duty is a factual question

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Res Ipsa LoquitorRes Ipsa Loquitor

““the thing speaks for itself”the thing speaks for itself” Plaintiff must prove:Plaintiff must prove:

1.1. Cause of injury is something in the exclusive care and Cause of injury is something in the exclusive care and control of the defendantcontrol of the defendant

2.2. Circumstances constitute events that would not Circumstances constitute events that would not normally occur if proper care had been taken by the normally occur if proper care had been taken by the defendantdefendant

Burden shifts to defendant if provenBurden shifts to defendant if proven

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Occupiers LiabilityOccupiers Liability

Concept (common law)Concept (common law) duty of care owned by occupier to those who come on duty of care owned by occupier to those who come on

their landtheir land Duty owned depends on kind of person entering Duty owned depends on kind of person entering

(ascending order of importance)(ascending order of importance)1.1. TrespassersTrespassers

2.2. LicenseesLicensees

3.3. inviteesinvitees

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Occupiers LiabilityOccupiers Liability

TrespassersTrespassers Lowest duty of care owedLowest duty of care owed Duty of common humanity, not deliberately injureDuty of common humanity, not deliberately injure Common law now superseded in some provinces by Common law now superseded in some provinces by

statute (Occupiers Liability acts)statute (Occupiers Liability acts)

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Occupiers LiabilityOccupiers Liability

LicenseesLicensees Enter land with express or implied permissionEnter land with express or implied permission Medium duty - duty to protect from concealed dangersMedium duty - duty to protect from concealed dangers

InviteesInvitees A person who enters upon the lands of another by A person who enters upon the lands of another by

invitation, usually or the benefit of the person in invitation, usually or the benefit of the person in possession of the landpossession of the land Retail storesRetail stores Owed the highest duty of careOwed the highest duty of care Duty Duty

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Occupiers LiabilityOccupiers Liability

Contractual Entrant Contractual Entrant A person who enters on the premises with a colour of A person who enters on the premises with a colour of

right stemming from a contract with the occupierright stemming from a contract with the occupier Hockey game, movie theater, opera, night clubHockey game, movie theater, opera, night club

Duty to warn or protect from any unusual dangers or Duty to warn or protect from any unusual dangers or hazards of which the occupier is aware or ought to be hazards of which the occupier is aware or ought to be awareaware

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Occupiers Liability (Statute)Occupiers Liability (Statute)

Codified in 1957 in UKCodified in 1957 in UK Abolished distinction between invitees and licenseesAbolished distinction between invitees and licensees Both referred to as visitorsBoth referred to as visitors Standard of care owed is that owed to invitee under Standard of care owed is that owed to invitee under

common lawcommon law Some provinces have Occupiers Liability legislation Some provinces have Occupiers Liability legislation

which now establishes a statutory standard which now establishes a statutory standard

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Manufacturers’ LiabilityManufacturers’ Liability

TraditionallyTraditionally Duty of care owed only to the purchaser of goods not Duty of care owed only to the purchaser of goods not

the userthe user Manufacturer’s now owe a duty of care to any Manufacturer’s now owe a duty of care to any

foreseeable users of their products if:foreseeable users of their products if: They were negligent in their manufactureThey were negligent in their manufacture They were aware of dangers associated with the goods They were aware of dangers associated with the goods

and failed to warnand failed to warn

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NuisanceNuisance

Wide applicationWide application Interference with the enjoyment of real property or, in Interference with the enjoyment of real property or, in

some cases, material interference with a person’s some cases, material interference with a person’s physical comfortphysical comfort

Balance the reasonable use of land by one with the Balance the reasonable use of land by one with the decrease in enjoyment by anotherdecrease in enjoyment by another

RequiresRequires Serious decrease in enjoyment of landSerious decrease in enjoyment of land Specific damage to the landSpecific damage to the land

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NuisanceNuisance

RemediesRemedies InjunctionInjunction

Equitable remedy order the person to refrain from doing Equitable remedy order the person to refrain from doing certain actscertain acts

Environmental nuisanceEnvironmental nuisance Covered through legislationCovered through legislation

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DefensesDefenses

Contributory NegligenceContributory Negligence Actions of the injured party contributed to their injuries Actions of the injured party contributed to their injuries

(plaintiff’s carelessness)(plaintiff’s carelessness) Injured party is the author (partially or wholly) of their Injured party is the author (partially or wholly) of their

own misfortuneown misfortune Responsibility is apportionedResponsibility is apportioned

Voluntary Assumption of RiskVoluntary Assumption of Risk Volenti non fit injuria Volenti non fit injuria

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DefensesDefenses

Act of GodAct of God Unanticipated event that prevents the performance of a Unanticipated event that prevents the performance of a

contract or causes damages to propertycontract or causes damages to property WaiverWaiver

An express or implied renunciation of a right or claimAn express or implied renunciation of a right or claim Usually must be written and cover the injury contemplated Usually must be written and cover the injury contemplated

by the parties at the timeby the parties at the time

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DefensesDefenses

ReleaseRelease Promise not to sue or press a claim, or a discharge of a Promise not to sue or press a claim, or a discharge of a

person form any further responsibility to actperson form any further responsibility to act Statute of LimitationsStatute of Limitations

Legislation sets forth time periods within one must bring Legislation sets forth time periods within one must bring an actionan action

Most provinces it is 2 years from the date the injury Most provinces it is 2 years from the date the injury occurred occurred

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RemediesRemedies

Compensatory DamagesCompensatory Damages Money damagesMoney damages Purpose is to restore the injured party to a whole state Purpose is to restore the injured party to a whole state

(undo the harm done)(undo the harm done)1.1. Special damages: covers specific losses or costs Special damages: covers specific losses or costs

(actual amounts)(actual amounts)2.2. General damages: compensation for pain and General damages: compensation for pain and

suffering, future health issues, permanent incapacity suffering, future health issues, permanent incapacity (estimated by court)(estimated by court)

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RemediesRemedies

Nominal DamagesNominal Damages Tort does not result in a monetary lossTort does not result in a monetary loss Award nominal damages i.e.) $1Award nominal damages i.e.) $1 No actual damagesNo actual damages

Punitive DamagesPunitive Damages Damages awarded to “set an example” to deter similar Damages awarded to “set an example” to deter similar

behavior by othersbehavior by others Court OrdersCourt Orders

Order by a court to a person to stop doing something or Order by a court to a person to stop doing something or to do somethingto do something

Contempt of Court – refusal to obey a court orderContempt of Court – refusal to obey a court order

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SummarySummary

Duty of CareDuty of Care if owed then a breach of that duty is a tortif owed then a breach of that duty is a tort Foreseeability test – determined by the reasonable Foreseeability test – determined by the reasonable

person testperson test Defendant’s actions must be the cause of the injuries Defendant’s actions must be the cause of the injuries

(can’t be too remote)(can’t be too remote) DefensesDefenses

Can be used by the defendantCan be used by the defendant Some are absolute defenses others are notSome are absolute defenses others are not