Chapter 4 The Law of Negligence. Copyright © 2007 by Nelson, a division of Thomson Canada Limited 2 Summary of Objectives To define tort law To identify

Chapter 4 The Law of Negligence

Copyright © 2007 by Nelson, a division of TCopyright © 2007 by Nelson, a division of Thomson Canada Limitedhomson Canada Limited

22

Summary of Objectives

To define tort lawTo define tort law

To identify elements of negligenceTo identify elements of negligence

To assess duty of care in the To assess duty of care in the hospitality industryhospitality industry

To isolate factors that may reduce To isolate factors that may reduce liability for breach of duty of careliability for breach of duty of care


33

Elements of Negligence The elements of negligence areThe elements of negligence are

• a duty of care owed by the a duty of care owed by the defendantdefendant

• a breach of the duty of carea breach of the duty of care

• an injury to the plaintiffan injury to the plaintiff

• proximate cause between the proximate cause between the breach and the plaintiff’s injurybreach and the plaintiff’s injury


44

Definition of Tort

An intentional or unintentional An intentional or unintentional injury (other than a breach of injury (other than a breach of contract) to the victim’scontract) to the victim’s

• bodybody

• mindmind

• propertyproperty

• pocketbookpocketbook


55

Duty of Care

Everyone has a duty to take Everyone has a duty to take reasonable care to avoid causing reasonable care to avoid causing injury to anyone to whom a duty is injury to anyone to whom a duty is owed.owed.

The Reasonable Person Test – The Reasonable Person Test – what would a careful, thoughtful what would a careful, thoughtful person in the same circumstances person in the same circumstances have done?have done?


66

Purposes of Tort Law

Specifically, to restore the injured Specifically, to restore the injured party to the position he or she was party to the position he or she was in before the injuryin before the injury

In general, the primary purposes In general, the primary purposes of tort law are regulation, of tort law are regulation, deterrence, compensation, dispute deterrence, compensation, dispute resolution, education and resolution, education and prevention.prevention.


77

Intentional Torts

Assault – the threat of serious Assault – the threat of serious unwanted touchingunwanted touching

Battery – the act of serious unwanted Battery – the act of serious unwanted touchingtouching

Trespass – unlawful entry upon Trespass – unlawful entry upon propertyproperty

Conversion – a person without authority Conversion – a person without authority wrongfully takes, retains or disposes of wrongfully takes, retains or disposes of the personal property of anotherthe personal property of another


88

Intentional Torts 2 False Imprisonment – confining or False Imprisonment – confining or

detaining someone without lawful detaining someone without lawful authorityauthority

Intentional Infliction of Mental Suffering – Intentional Infliction of Mental Suffering – deliberately causing mental sufferingdeliberately causing mental suffering

Deceit – fraudulently misleading anotherDeceit – fraudulently misleading another

Intentional Interference with a Contract – Intentional Interference with a Contract – urging someone to breach a binding urging someone to breach a binding contractcontract


99

Defences to Intentional Torts ConsentConsent

Self defenceSelf defence

Defence of propertyDefence of property

Defence of a third personDefence of a third person

NecessityNecessity

Legal authorityLegal authority

Lack of intentionLack of intention


1010

Causation and the Burden of Proof A defendant will be liable for A defendant will be liable for

reasonably foreseeable reasonably foreseeable consequences of his or her acts.consequences of his or her acts.

If injury was a likely consequence If injury was a likely consequence of an act, it is not necessary to of an act, it is not necessary to know exactly how such an injury know exactly how such an injury would be caused.would be caused.


1111

Thin Skull Rule

A tortfeasor who can reasonably A tortfeasor who can reasonably foresee some injury as a foresee some injury as a consequence of his or her consequence of his or her conduct may be liable for more conduct may be liable for more serious consequences than he or serious consequences than he or she anticipated.she anticipated.


1212

Res Ipsa Loquitur

means “The thing speaks for itself”means “The thing speaks for itself”

• Without negligence, injury would not normally Without negligence, injury would not normally have occurredhave occurred

The elements areThe elements are

• injury caused by misadventure not normally injury caused by misadventure not normally occurring without negligenceoccurring without negligence

• the thing causing the injury was within the the thing causing the injury was within the defendant’s controldefendant’s control

• the plaintiff did nothing to provoke the accidentthe plaintiff did nothing to provoke the accident

• the plaintiff had no prior knowledge of the dangerthe plaintiff had no prior knowledge of the danger


1313

Strict Liability

Applies in the context of an Applies in the context of an unnatural use of land or buildings, unnatural use of land or buildings, or hazardous activities and or hazardous activities and productsproducts

The defendant may be found The defendant may be found strictly liable if injury occurs even strictly liable if injury occurs even though precautions were taken.though precautions were taken.


1414

Contributory Negligence If a plaintiff is partly or solely the If a plaintiff is partly or solely the

cause of his or her own injury, the cause of his or her own injury, the amount of compensation will be amount of compensation will be reduced accordingly.reduced accordingly.


1515

Voluntary Assumption of Risk A plaintiff who has participated in an activity A plaintiff who has participated in an activity

knowing that injury might result may be said knowing that injury might result may be said to have assumed the risk voluntarily.to have assumed the risk voluntarily.

The defendant must establish that The defendant must establish that

• the plaintiff knew about the risk and understood the plaintiff knew about the risk and understood itit

• the plaintiff had a choice to avoid the risk but the plaintiff had a choice to avoid the risk but instead voluntarily assumed itinstead voluntarily assumed it

• the defendant was not in breach of any statutory the defendant was not in breach of any statutory duty from which the injuries flowedduty from which the injuries flowed


1616

Waivers and Disclaimers Waivers are separate contracts. Waivers are separate contracts.

One party agrees not to try to One party agrees not to try to impose liability on the other if impose liability on the other if there is an injury.there is an injury.

Disclaimers are attempts by one Disclaimers are attempts by one party to unilaterally impose on the party to unilaterally impose on the other the terms specified in the other the terms specified in the waiver.waiver.


1717

Vicarious Liability

Employers are responsible for the Employers are responsible for the torts of employees which occur torts of employees which occur while they are performing their while they are performing their duties.duties.

Failure to correct a problem such Failure to correct a problem such as incompetence of an employee as incompetence of an employee may also result in vicarious may also result in vicarious liability.liability.


1818

Negligent Misrepresentation If someone relies on advice or If someone relies on advice or

information negligently provided information negligently provided by a specialist, and does so by a specialist, and does so reasonably to his or her detriment, reasonably to his or her detriment, a duty of care is breached.a duty of care is breached.

Informed consent or an Informed consent or an appropriate disclaimer may relieve appropriate disclaimer may relieve the specialist of liability.the specialist of liability.


1919

Passing Off

If a reasonable member of the If a reasonable member of the public would be misled into public would be misled into believing one company’s goods or believing one company’s goods or services are those of another services are those of another selling a similar product, the selling a similar product, the victim may seek an injunction victim may seek an injunction and damages.and damages.


2020

Defamation

The publication of a false statement about The publication of a false statement about someone either verbally or in writing which someone either verbally or in writing which damages their reputationdamages their reputation

Defences the defendant may raise areDefences the defendant may raise are

• truth of the statementtruth of the statement

• consent of the plaintiffconsent of the plaintiff

• absolute privilegeabsolute privilege

• qualified privilegequalified privilege

• fair commentfair comment


2121

Injurious Falsehood

Defaming a business, a product Defaming a business, a product or a property rather than a or a property rather than a personperson


2222

Nuisance

Interference with another Interference with another person’s use and enjoyment of person’s use and enjoyment of their landtheir land

Must be continuing and Must be continuing and unreasonableunreasonable


2323

Occupiers Liability Legislation Occupiers owe a duty of care to Occupiers owe a duty of care to

those entering on, or in the those entering on, or in the vicinity of, their premises.vicinity of, their premises.

Depending on jurisdiction, there Depending on jurisdiction, there may be a distinction between the may be a distinction between the duty owed to an invitee and a duty owed to an invitee and a licensee.licensee.


2424

Preventing Negligence Claims Standard operating proceduresStandard operating procedures

Staff trainingStaff training

Adherence to regulationsAdherence to regulations

Record keepingRecord keeping

Use of waivers, disclaimers and releasesUse of waivers, disclaimers and releases

Insurance Insurance

Documents

Chapter 4 The Law of Negligence. Copyright © 2007 by Nelson, a division of Thomson Canada Limited 2 Summary of Objectives To define tort law To identify