Tort Law – Tort Law – Unintentional TortsUnintentional Torts

NegligenceNegligence

Action was unintentionalAction was unintentionalIt is plannedIt is plannedInjury occursInjury occursanyone who anyone who carelesslycarelessly injures another injures another should compensate victimshould compensate victim

ElementsElements A Car A Car A Store A Store A Hospital A Hospital A Law OfficeA Law Office

Plaintiff is Plaintiff is owed a owed a duty of careduty of care

Duty to avoid Duty to avoid accidents accidents

Duty to Duty to ensure store ensure store is safe is safe

Duty to Duty to provide provide competent competent treatment treatment

Duty to Duty to provide provide competent competent

legal advicelegal advice

Defendant Defendant breachedbreached

duty of careduty of care

Drove Drove unsafely; unsafely; went through went through

a red lighta red light

Failed to Failed to clean up clean up water spilled water spilled

on flooron floor

Amputated Amputated the wrong the wrong limb limb

Gave faulty Gave faulty legal advice; legal advice; client lost client lost

right to sueright to sue Plaintiff Plaintiff suffered suffered resulting resulting harm or harm or lossloss

Plaintiff Plaintiff and/or and/or plaintiff’s car plaintiff’s car suffered suffered damage damage

Plaintiff Plaintiff slipped on slipped on mess and mess and broke his hip broke his hip

Plaintiff Plaintiff endured endured unnecessary unnecessary pain and pain and suffering suffering

Plaintiff lost Plaintiff lost money money arising from arising from potentially potentially successful successful lawsuit lawsuit

Duty of Care – plaintiff must show defendant Duty of Care – plaintiff must show defendant owed a duty of careowed a duty of care• Once D of C has been establishedOnce D of C has been established

Must determine what Must determine what Standard of CareStandard of Care is is expectedexpected

• Based on Based on Reasonable Person:Reasonable Person: image of someone who has neither physical or image of someone who has neither physical or

psychological defects and who people agree is psychological defects and who people agree is careful, thoughtful and considerate of otherscareful, thoughtful and considerate of others

this person is different depending of region – this person is different depending of region – Prince George, Langley, DESPrince George, Langley, DES

ForeseeabilityForeseeability• would the “reasonable person”, put in the would the “reasonable person”, put in the

same circumstance have been able to foresee same circumstance have been able to foresee the injury/consequence?the injury/consequence?

CausationCausation• defendants actions/acts defendants actions/acts causedcaused the plaintiffs injury the plaintiffs injury• how direct the action was a cause of the injury would how direct the action was a cause of the injury would

determine the level of negligence and therefore determine the level of negligence and therefore compensationcompensation

Burden of ProofBurden of Proof• on the plaintiffon the plaintiff

Defenses Defenses – burden is on the defendant to prove– burden is on the defendant to prove• Contributory NegligenceContributory Negligence

Both parties are liable/negligent to some degreeBoth parties are liable/negligent to some degree Burden switches to defendantBurden switches to defendant

Voluntary Assumption of RiskVoluntary Assumption of Risk• Defendant must prove the plaintiff clearly knew the Defendant must prove the plaintiff clearly knew the

risk and therefore assumes liabilityrisk and therefore assumes liability Watching/playing in Hockey games, baseball gamesWatching/playing in Hockey games, baseball games Must be ordinary risk of gameMust be ordinary risk of game

Special Types of NegligenceSpecial Types of NegligenceOccupier’s LiabilityOccupier’s Liability

• Enter property of anotherEnter property of another Occupier (owner) must keep it safeOccupier (owner) must keep it safe Keep sidewalks/stairs free of snow/ice (neighbour principle)Keep sidewalks/stairs free of snow/ice (neighbour principle) Floors dry/free of obstaclesFloors dry/free of obstacles

• InviteesInvitees People are on property for a purpose other than a social visit – People are on property for a purpose other than a social visit –

highest standard of carehighest standard of care School students, customers, delivery person, service personSchool students, customers, delivery person, service person

• LicenseeLicensee Have implied permission to enterHave implied permission to enter

• friend for dinner and there for social reasons and not businessfriend for dinner and there for social reasons and not business• TresspasserTresspasser

Without person or without legal right to be thereWithout person or without legal right to be there Cannot set traps or cause deliberate harm to themCannot set traps or cause deliberate harm to them Only use as much force as necessary to remove themOnly use as much force as necessary to remove them

**commercial and social hosts – bar, restaurant, private **commercial and social hosts – bar, restaurant, private parties – hosts are becoming liable for drunkenness and parties – hosts are becoming liable for drunkenness and actions of intoxicated people**actions of intoxicated people**

Motor VehicleMotor Vehicle• Driver is liable for passengersDriver is liable for passengers

Passengers who willingly get in car with driver who is intoxicated Passengers who willingly get in car with driver who is intoxicated are said to be voluntarily assuming risk and therefore have no are said to be voluntarily assuming risk and therefore have no grounds for claimgrounds for claim

Seatbelts – precedent has been set = “contributory negligence” if Seatbelts – precedent has been set = “contributory negligence” if you do not buckle upyou do not buckle up

Vicarious LiabilityVicarious Liability• Substitute LiabilitySubstitute Liability

Based on the assumption that owners of vehicles have a duty of Based on the assumption that owners of vehicles have a duty of care to society to lend their vehicles only to individuals who are care to society to lend their vehicles only to individuals who are competent to drive them safelycompetent to drive them safely

• Owners to be careful when lending vehiclesOwners to be careful when lending vehicles• Provincial statutes place liability on driver and owner = owner is liable Provincial statutes place liability on driver and owner = owner is liable

for negligence of the driver when permission is given for use of carfor negligence of the driver when permission is given for use of car professional negligenceprofessional negligence medical negligencemedical negligence

• need informed consentneed informed consent doctors need to fully inform patient of risksdoctors need to fully inform patient of risks

Statute of Limitations: must make a claim within 2 years of Statute of Limitations: must make a claim within 2 years of original injuryoriginal injury