Chapter 4
The Law of Negligence
Summary of Objectives
 To define tort law
 To identify elements of negligence
 To assess duty of care in the
hospitality industry
 To isolate factors that may reduce
liability for breach of duty of care
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Elements of Negligence
 The elements of negligence are
• a duty of care owed by the defendant
• a breach of the duty of care
• an injury to the plaintiff
• proximate cause between the breach
and the plaintiff’s injury
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Definition of Tort
 An intentional or unintentional injury
(other than a breach of contract) to
the victim’s
• body
• mind
• property
• pocketbook
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Duty of Care
 Everyone has a duty to take
reasonable care to avoid causing
injury to anyone to whom a duty is
owed.
 The Reasonable Person Test – what
would a careful, thoughtful person in
the same circumstances have done?
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Purposes of Tort Law
 Specifically, to restore the injured
party to the position he or she was in
before the injury
 In general, the primary purposes of
tort law are regulation, deterrence,
compensation, dispute resolution,
education and prevention.
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Intentional Torts
 Assault – the threat of serious unwanted
touching
 Battery – the act of serious unwanted
touching
 Trespass – unlawful entry upon property
 Conversion – a person without authority
wrongfully takes, retains or disposes of the
personal property of another
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Intentional Torts
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 False Imprisonment – confining or detaining
someone without lawful authority
 Intentional Infliction of Mental Suffering –
deliberately causing mental suffering
 Deceit – fraudulently misleading another
 Intentional Interference with a Contract –
urging someone to breach a binding
contract
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Defences to Intentional
Torts
 Consent
 Self defence
 Defence of property
 Defence of a third person
 Necessity
 Legal authority
 Lack of intention
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Causation and the Burden
of Proof
 A defendant will be liable for
reasonably foreseeable consequences
of his or her acts.
 If injury was a likely consequence of
an act, it is not necessary to know
exactly how such an injury would be
caused.
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Thin Skull Rule
 A tortfeasor who can reasonably
foresee some injury as a consequence
of his or her conduct may be liable for
more serious consequences than he or
she anticipated.
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Res Ipsa Loquitur
 means “The thing speaks for itself”
• Without negligence, injury would not normally have
occurred
 The elements are
• injury caused by misadventure not normally occurring
without negligence
• the thing causing the injury was within the defendant’s
control
• the plaintiff did nothing to provoke the accident
• the plaintiff had no prior knowledge of the danger
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Strict Liability
 Applies in the context of an unnatural
use of land or buildings, or hazardous
activities and products
 The defendant may be found strictly
liable if injury occurs even though
precautions were taken.
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Contributory Negligence
 If a plaintiff is partly or solely the
cause of his or her own injury, the
amount of compensation will be
reduced accordingly.
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Voluntary Assumption of
Risk
 A plaintiff who has participated in an activity
knowing that injury might result may be said to
have assumed the risk voluntarily.
The defendant must establish that
• the plaintiff knew about the risk and understood it
• the plaintiff had a choice to avoid the risk but instead
voluntarily assumed it
• the defendant was not in breach of any statutory duty
from which the injuries flowed
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Waivers and Disclaimers
 Waivers are separate contracts. One
party agrees not to try to impose
liability on the other if there is an
injury.
 Disclaimers are attempts by one party
to unilaterally impose on the other the
terms specified in the waiver.
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Vicarious Liability
 Employers are responsible for the torts
of employees which occur while they
are performing their duties.
 Failure to correct a problem such as
incompetence of an employee may
also result in vicarious liability.
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Negligent
Misrepresentation
 If someone relies on advice or
information negligently provided by a
specialist, and does so reasonably to
his or her detriment, a duty of care is
breached.
 Informed consent or an appropriate
disclaimer may relieve the specialist of
liability.
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Passing Off
 If a reasonable member of the public
would be misled into believing one
company’s goods or services are those
of another selling a similar product,
the victim may seek an injunction and
damages.
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Defamation
 The publication of a false statement about
someone either verbally or in writing which
damages their reputation
 Defences the defendant may raise are
• truth of the statement
• consent of the plaintiff
• absolute privilege
• qualified privilege
• fair comment
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Injurious Falsehood
 Defaming a business, a product or a
property rather than a person
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Nuisance
 Interference with another person’s use
and enjoyment of their land
 Must be continuing and unreasonable
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Occupiers Liability
Legislation
 Occupiers owe a duty of care to those
entering on, or in the vicinity of, their
premises.
 Depending on jurisdiction, there may
be a distinction between the duty
owed to an invitee and a licensee.
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Preventing Negligence
Claims
 Standard operating procedures
 Staff training
 Adherence to regulations
 Record keeping
 Use of waivers, disclaimers and releases
 Insurance
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