Torts

NEGLIGENCE
 Negligence

 Inadvertent, careless conduct that causes injury to

another
 Important area of tort liability for professionals
 Negligence

 Essential Elements:
 A: A duty to exercise care
 B: Breach of the standard of care
 C: Causation – The act caused the injury
 D: Damages – Victim suffered a loss
 Reasonable person test

 Reasonable person is a prudent person, in

possession of all the facts, exercising care
 Not the average person
 Not the perfect person
 Is a duty owed?

 Reasonable Foreseeability Test

 If it would be apparent to a prudent person that
the conduct was likely to cause injury - duty is
owed.
 We owe a duty to anyone we can reasonably
anticipate might be harmed by our conduct
 Is there any reason to reduce or eliminate this
duty? (Anns case
 Case Summary

 Donoghue v Stevenson set several precedents in

the law of negligence
 The test to determine the existence of a duty
 Product liability - manufacturer owes a duty to customer
 Privity of contract will not defeat an action for negligence
in product liability cases
 A- Duty of Care

 Misfeasance
 An act that causes harm to another
 Court will provide remedy
 Nonfeasance
 A failure to prevent an injury
 Courts reluctant to provide remedy
 If a person attempts to help there is a duty to
exercise reasonable care
 Courts reluctant to provide remedy without
special relationship
 B- Breach of a Standard of Conduct

 What would a reasonable person have done in the

circumstances?
 Actions that fall below socially acceptable
standards create liability for damages
 Risk - The greater the risk of injury the higher the
standard
 Liability of children

 Children liable for their torts

 standard is that of a reasonable child of that age
 Parents not generally responsible for their
children’s torts
 except where there is obvious failure to control, instruct or
supervise or a statute imposed duty
 C-Causation

 The injury must be a direct result of the careless

conduct
 But for test - but for the conduct of the plaintiff no
injury would have resulted
 D- Damages

 Plaintiff must show injury to self or loss of

property as a result of defendant’s negligence –
Physical Causation
 Remoteness Test
 Whether the specific type of injury suffered was
reasonably foreseeable - Legal Causation
 Judicial remedies

 Courts will compensate for:

 Mental disorder, but not simply mental distress
 Economic loss
 Court attempts to restore victim to original
position
 Defences

 Contributory negligence
 Plaintiff partially responsible for own loss
 Last clear chance doctrine
 Negligence Act now allows court to apportion
responsibility
 Defences/2

 Voluntarily assuming the risk

 A person who volunteers to enter a
situation where the risk of injury is
obvious cannot recover damages
 Special situations

 An occupier of property owes a duty

to people who come onto the property
as
 licensees
 trespassers
 invitees
 The obligation is on the tenant not the landlord
 Special situations/2

 Duties of Innkeepers
 Safeguard property of guests
 Post appropriate section of Innkeepers
Act
 Prevent guests from becoming
intoxicated
 Legislation

 Statutes may impose obligations not found in

common law
 No-fault insurance
 Statutory thresholds for claims
 Duty of care to unborn child in Alberta
 Question for discussion

 Social Host Liability

 The courts have found both commercial
establishments and private hosts liable for injuries
sustained by their guests when they have
consumed alcohol on their premises.
 What is the standard of care expected of a social
host and do you think the courts have gone too far
in assessing this kind of liability?
 Negligent mistatement

 People who suffer economic loss because of a

professional’s negligent statements may recover
damages
 Whether a duty was owed is determined by
reasonable foreseeability test
 This test has been modified by the Anns case
 Case for discussion

 Haig v. Bamford
 This case established the legal principle that:
Liability is restricted to situations where the
plaintiff knew or should have known that the
information provided would be relied on by a
limited group.
 Is this restriction appropriate?
 Strict liability

 Liability when there is no fault

 When a dangerous situation is created by an
unusual use of property, the owner/occupier is
liable for all damages when it escapes
 E.g., water, animals
 Vicarious liability

 A form of strict liability—or liability without fault

 Imposed on employers when they are held liable for
torts committed by employees during the course of
their employment
 Product liability

 Manufacturers are liable for injuries caused by

defective products
 Plaintiff must establish that the manufacturer was
negligent
 Breach of manufacturer’s duty can be implied from
circumstances
 Manufacturers must warn of dangers associated
with product
 Liability of experts

 Professionals and experts held to a high standard

 Require skills and abilities expected of a professional in
that field
 Must exercise skill with degree of care expected from a
reasonable person in that profession
 Inexperience does not excuse incompetence
 Common practice that is dangerous or careless is not an
excuse.
 Professional liability

 Duty often set out in contract

 But tort liability requires adherence to a
reasonable standard of performance
 Courts may extend liability to parties
outside of the contract
 Negligence of professionals

 Standard of care expected of professionals

 Reasonable member of the profession
 Common practice may not measure up to
reasonable standard
 Courts will examine the circumstances to
determine if the conduct was reasonable
 Risk avoidance

 Professionals should be aware of the standard of

care expected of them
 Adapt practices to avoid risk
 Professionals owe a fiduciary duty to clients
 Must act with loyalty and good faith
 Must disclose pertinent information
 Must use extreme care with funds entrusted to them
 Professional insurance

 Often a condition of practice for professionals

 Protects against damages resulting from errors and
omissions
 Premiums can be a significant business expense
 May cover legal costs when professional is sued
 Professional disciplinary body

 Some exercise significant control over their

members
 With membership required
 With power to levy penalties and suspend
 Activities regulated by administrative law
 Charter rights may apply
 Compliance with human rights legislation required