Negligence and Unintentional
Torts
What is a Tort?
• Damage to property or a personal injury
caused by another person is a civil wrong
called a tort
• Tort Law holds persons, private organizations,
and governments responsible for damages
and injuries
• Unintentional Torts – injuries that are the
result of an accident or an action that was not
intended to cause harm
Negligence
 The most common type of unintentional tort
 Occurs when you Cause injury to someone in a
situation where you should have known your actions
could cause harm
Negligence - factors
• Stage 1 – Duty of Care
– The obligation to avoid careless actions that could
cause harm to one or more persons.
– Neighbour principle
• The legal responsibility to owe a duty of care not to
harm one's neighbour by being careless or negligent
• Your neighbour is anyone who you can reasonably
foresee being injured by your actions
• Foresee ability – being aware that your actions could
cause injury to someone
Negligence – factors
 Stage 2 – Standard of Care
 if a duty of care is owed to a “neighbour”, to what
extent is that duty required?
 What would a reasonable person do in a similar
circumstances?
 A reasonable person is considered to be an ordinary person of
normal intelligence
 Professional liability – specialised standard of care
 People with specialised skills or training have a higher
standard of care with respect to their field of expertise
 A reasonable person with the same specialised training
 Medical negligence
 Patients much give voluntary , informed consent in normal
circumstances before a doctor can perform any medical
procedure or test
Negligence – factors
• Stage 2 – Standard of Care
– Children
• Special status under the law
• Children under the age of 6 are rarely found liable for their
actions as they are believed to be too young to foresee the
consequences
• Children over the age of 6 – courts consider their age,
intelligence, life experience and what another child of similar
age and intelligence would have done under similar
circumstances
• Adult activities – i.e. driving a motor vehicle – child is
responsible for the same standard of care as an adult
Negligence – factors
• Stage 2 – Standard of Care
– Parental Responsibility
• Parents are not automatically liable for their children’s
actions
• Can be held responsible if they fail to supervise or train their
children
• Certain provinces have laws that hold parents responsible
for torts committed by their children
– Parents may need to prove that they acted responsibly in order to
not have to pay damages
• Children can sue their parents if the parent acted
irresponsibly
Negligence – factors
• Stage 2 – Standard of Care
– Rescuers
Good Samaritan laws generally hold the standard of care
for rescuers to a lower standard than other situations
Person who was negligent in his/hers actions and caused
the situation owes a duty of care to both the victim and
the rescuer
Negligence – factors
• Stage 3 – Causation
– Cause-in-Fact
• “but for” test – i.e. the injury would not have occurred “but
for” the defendant’s actions
– Apportionment
• The division of fault among wrongdoers
– Remoteness of Damage
• Harm that could not have been foreseen due to a lack of
close connection between the wrong and the injury
– Intervening act
• An unforeseeable event that interrupts the chain of events
started by the defendant.
Negligence – factors
• Stage 3 – Causation
– Thin-Skull rule
• Defendant is liable for all damages caused by
negligence despite any pre-existing conditions that
make the plaintiff more prone to injury
Special Types of Liability
• Product Liability
– Manufacturers have to meet a higher standard of
care in order to prevent injury to consumers of
their products
• Product must be free of harmful defects
• Product is properly manufactured
• Consumer must be properly informed about how to use
the product safely
• Consumer must be warned about the risks associated
with using the product
Special Types of Liability
 Occupiers’ Liability
 People who own or occupy a property have a duty to
maintain their property so that no one entering the
premises is injured
 Standard of care is dependent on the kind of visitor
 Invitee (highest standard of care)
– Person invited onto the premises for a business purpose
 Licensee
– Social visitor such as a friend
Often the first two categories are combined
 Trespasser
– No legal right to be on your property
– Children who trespass are treated differently than adults
(allurement)
Special Types of Liability
• Hosts
– People who serve alcohol to their guests
• Commercial hosts have a statutory duty of care to their
patrons and anyone who may be injured by their
patrons’ negligent driving
• Social hosts law is developing
Special Types of Liability
• Vicarious Liability
– Legal responsibility for the negligence of another person
• Employer may be responsible for the actions of the employees
• Automobile Negligence
– Negligence as a result of the operation of a motor vehicle
– Usually covered by liability insurance
• Strict Liability
– Defendant is automatically liable for any injury caused by a
dangerous substance or activity
• Animal control laws
• Pollution
Defences to Negligence
 Did not owe a duty of care
 Met the standard of care
 Your actions did not cause the injury/damage
 Contributory Negligence
 Plaintiff contributed to the injury by displaying unreasonable
conduct
 Voluntary Assumption of Risk
 Plaintiff knowingly and willingly assumed the potential risks
normally associated with the activity
 May have to sign a waiver before being permitted to participate
 Signing a waiver does not automatically exempt the defendant from
liability
Defences to Negligence
• Other Defences
– Inevitable accident
• Accident was unavoidable due to an uncontrollable
event
– Act of God
– Accident caused buy an extraordinary, unexpected natural
event
– Explanation
• Accident occurred for a valid reason even though the
defendant took every precaution
Statute of Limitations
People must sue for damages within a reasonable time