NEGLIGENCE. The elements of negligence: (Unintentional Torts) Pay attention the last slide is a three-question test!

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1 NEGLIGENCE (Unintentional Torts) Pay attention the last slide is a three-question test! hahahahaha The elements of negligence: * Duty of Care * Breach of that Duty * Damage, Loss or Injury * Causation : cause-in-fact / remoteness of damage foreseeability, reasonable person 1

2 TYPES OF LIABILITY li a bil i ty (lī'ə-bĭl'ĭ-tē) n. pl. li a bil i ties The state of being liable. li a ble adjective Bound or obliged in law; responsible; chargeable; answerable; compellable to make satisfaction, compensation, or restitution. Product Liability Donoghue v. Stevenson -deals with negligence on the part of manufacturers Manufacturers must make sure: - design free of harmful defects; product is properly manufactured - consumer told how to use product safely, warned of any risks using the product Occupier s Liability Responsibility of ownersor renters to ensure that no one entering their premises is injured. Invitees(invited on your property for a business purpose) and licensees (a person with implied permission to visit) are owed a standard of care. Trespassersare owed no standard of care, but cannot purposely be injured. Children are treated differently- allurement something that attracts children and might result in harm (also known as an attractive nuisance) 2

3 Hosts Someone who serves alcohol to guests or paying customers (commercial or social hosts) It has been established that commercial hosts have a statutory duty of care to their patrons and others. The recent ruling of the Supreme Court in Childs v. Desormeauxwas that the social hosts were not responsible. However, the possibility of social host liability was not totally ruled out. Vicarious Liability Legal responsibility for the negligence of another person. Employers can be held responsible for the actions of their employees, and parents for the actions of their children. Car owners are liable for damages that result from the negligent behaviourof anyone who drives the owner s car. Liability (continued) Motor Vehicle Negligence Professional / Medical Negligence Res ipsa loquitur 3

4 Strict Liability Defendant is automatically liable for an injury caused by a dangerous substance or activity even if the defendant was not negligent. fires, vicious animals, toxic wastes or fumes Children & Negligence Children (or their parents/guardians) can be held liable for their actions (each case judged on its own facts -no clear laws) Children must show a duty and standard of care expected from reasonable children of a similar age. Children & Negligence Parents are not automatically liable for their children s torts; it must be shown that the proper standard of care was not present. Vicarious liability (the responsibility of one person for another person s action) states that parents are liable for accidents caused by children driving the family car, snowmobile, etc. Parents may also be found liable if it can be shown that they were not properly supervising their children (e.g. cases involving fire and guns). Parental Responsibility Act 4

5 Defences to Negligence To defend against a claim of negligence, show that: a) Negligence did not exist b) The defendant did not owe plaintiff any duty of care c) No breach of the duty d) No direct causation (too remote) (Mustapha v. Culligan) Commonly used true defences Contributory Negligence In the past if the plaintiff was found to be in any way at fault for an accident, their right to claim damages was denied. Presently, damages are apportioned between the defendant and plaintiff if both are in some way at fault. The onusis on the defendant to prove that the plaintiff was in some way responsible Voluntary Assumption of Risk The defendant must prove that the plaintiff knew the possible risk involved in their actions. Sports events -the spectator assumes the risk merely by observing the event. Also used in cases where passengers were injured by impaired drivers. The onus is on the defendant to prove the plaintiff was aware of the risk. 5

6 Inevitable Accident When an accident is a result of unavoidable situations -No matter what precautions the reasonable person would have taken, the accident would have occurred. Cannot foresee the accident happening. Act of God Explanation Participation in Illegal Activities Injuries related to participation in illegal activities are not eligible for compensation, even if the wrongdoer was negligent. e.g. A gas station has a leaking pop machine that has created a large, dangerous, slippery puddle on the floor. The manager leaves the problem unsolved, and during the night, a thief breaks into the station, slips, and breaks his arm. Statute of Limitations A law that specifies the time within which legal action must be taken. Expiry of the time period is a defence in tort law. Limitation periods differ depending on law of province and the type of defendant. Be very careful if your defendant is a level of government! 6

7 Quick! Name the four elements of negligence: You re the defendant, what s your position? Name the defences to negligence (4 +1): 7

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