Negligence and other Torts - Civil Law - Lecture Slides, Slides of Civil Law

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Negligence and Other Torts

What is Negligence?

• Someone who commits a careless act that creates harm to another person is negligent.
• Over the past several years, negligence has become the most common area of tort law.
• Negligence has 3 key characteristics:
  • The action is not intentional.
  • The action is also not planned.
  • Some type of injury is created.

Duty of Care

• In a negligence lawsuit, the plaintiff must demonstrate the defendant owed him or her a duty of care —a specific legal obligation to not harm others or their property.
• Duty of care can be highly specific or apply more generally to the public.
• Example: each motorist owes everyone a duty of care while driving.
• If the court decides the defendant did not meet his or her duty of care , the defendant can be found in “ breach of duty of care .”

The Reasonable Person

• When determining if a defendant is in breach of duty of care , the court uses the “reasonable person test” to determine the level or standard of care that should be expected.
• A reasonable person is defined as an “ordinary adult” without any disabilities.
• Although this person does not actually exist, the reasonable person is thought to be careful and considerate.
• The definition of a reasonable person may also depend on location. For example, what is considered reasonable in a rural area may not be so in an urban area and vice versa.

Foreseeability & Causation

• Part of the reasonable person test involves foreseeability —a person’s ability to anticipate the specific result of an action.
• If a court decides that a reasonable person should have been able to predict, or foresee , the injury created, the defendant can be found liable, or in breach of his or her duty of care.
• Causation occurs when the defendant was in breach and the defendant’s actions directly led to the plaintiff’s injuries or loss.

Proving Harm or Loss

• For a negligence suit to be successful, plaintiffs must prove they suffered real injury or economic loss.
• The following questions are asked to prove negligence and harm:

1. Does the defendant owe the plaintiff a duty of care?
2. Did the defendant breach the standard of care?
3. Did the defendant’s actions cause the plaintiff’s injury or loss?
4. Was there a direct connection between the defendant’s actions and the plaintiff’s injury or loss ( causation )? Furthermore, was it foreseeable?
5. Did the plaintiff actually suffer harm or loss?

Defences for Negligence

• There are three common defences to negligence:

1. Contributory negligence
2. Voluntary assumption of risk
3. Inevitable accident

***The best possible defence to negligence is to

argue that no negligent action occurred at all.

Contributory Negligence

• If both the plaintiff and defendant are found to be negligent, any damages or blame will be divided between them.
• Contributory negligence occurs when the alleged victim created at least part of the harm that he or she ended up suffering.
• This defence is often used in lawsuits involving motor vehicle accidents. For example, if one driver was speeding and another ran a stop sign, both drivers are negligent.
• Courts use actual percentages to determine responsibility in contributory negligence cases.

Inevitable Accident

• Also referred to as “act of God,” this defence is used to argue that although an accident occurred, it was not anyone’s fault.
• Example: If an accident occurs after a vehicle or plane is struck by lightning, it is difficult to assign blame or argue that the resulting harm was foreseeable.
• Inevitable accident means that the harm could not have been reasonably prevented.

Motor Vehicle Negligence

• There are several possible negligent acts that involve motor vehicles.
• Violating any section of a provincial Highway Traffic Act can be seen as negligence.
• In motor vehicle accidents , the burden of proof can be shifted to the defendant. For example, once the plaintiff has proven that he or she was hit by a car, it is then up to the defendant to argue why the defendant is not liable.
• If contributory negligence exists, any damages awarded to the plaintiff will be reduced.

Occupiers’ Liability

• An occupier is a person who controls and supervises an establishment or property.
• A duty of care is owed by an occupier to any guests who may enter or visit the property.
• A licensee is someone who visits a property for social reasons (e.g. dinner, a party).
• An invitee is someone who visits a property for more formal reasons (e.g. work, school, to shop).
• Licensees and invitees have permission to enter a property and as a result are owed a duty of care by the occupier.
• Most provinces have Occupiers’ Liability Acts.

Commercial Hosts

• In tort law, there are two types of hosts: commercial and social.
• A commercial host usually operates a hospitality business, such as a bar or restaurant.
• Commercial hosts have a specific duty of care to monitor intoxicated customers.
• If a customer appears to be drunk, the host becomes responsible for protecting that customer’s safety (e.g. not letting him or her drive, cutting him or her off from further liquor service).

Social Hosts

• A social host has many of the same liabilities as a commercial host, but does not receive any financial benefit.
• Example: If a couple throws a party at their house, they are social hosts who are responsible for their guests in the same way that commercial hosts are responsible for their paying customers.
• Similar precautions must be taken regarding the guests’ safety.

Medical Malpractice

• Malpractice occurs when someone receives improper or negligent professional treatment.
• The most common type is medical malpractice , which occurs when a health care professional fails to provide appropriate treatment.
• It may also occur if the patient has not agreed to a particular treatment or action. This is known as informed consent. A patient must completely understand the risks involved.
• The only exception is a life-threatening emergency.