Negligence and Unintentional Torts
Chapter 14
What happens to people who are injured through no fault of their own: a woman who breaks her arm
because a faulty binding on her ski comes off during a downhill race or a child who suffers brain damage
after being prescribed the wrong medication?
People usually assume they will be able to sue and get compensation for their injuries, loss of wages, or
damage to their property. Damage to property or a personal injury caused by another person is a civil
wrong called a tort. If the injury or damage was unintentional, then the wrong is called an unintentional
tort.
Negligence
The most common kind of unintentional tort is negligence. You are negligent if you unintentionally cause
injury to someone in a situation where you should have known your action could cause harm.
In order for a defendant to be found negligent, the plaintiff must prove three factors.First, the plaintiff must
prove that the defendant owed the plaintiff a duty of care. A duty of care is the obligation to avoid
careless actions that could cause harm to one or more persons. Second, the plaintiff must prove that the
defendant failed to provide the proper standard of care that a reasonable person would have provided in
a similar situation. The standard of care is a way of measuring how much care one persons owes another.
For some people the standard of care is higher than others. Doctors, for example, have a higher standard
of care toward others than the reasonable person. Third, the plaintiff must prove that the actions of the
defendant were the cause of the plaintiff==s injuries. Determining the cause, known as cause-in-fact, is
often done by applying the AAbut for@@ test. An injury would not have happened AAbut for@@ the defendant==s
actions. If a teacher takes a group of students on a canoe trip and fails to provide life jackets and one
student falls in and drowns, a court would likely say that the student would not have downed AAbut for@@ the
teacher==s failure to provide a life jacket. Therefore, this negligence was the cause-in-fact of the injury.
Children can be held responsible for damage they cause, but the court recognizes that children may not
have the experience and wisdom to foresee how something they do could cause injury. Therefore the
courts place a different standard of care on a child. If a child does something that injures someone, the
courts will consider the child==s age, life experience, and what a child of a similar age would have done
under similar circumstances. Children under the age of six are rarely found liable for their actions.
Parents are not automatically liable for damages caused by their children, but they can be held liable if
they fail to train their children or properly supervise their activities.A child who is injured because of a
parent==s negligence can sue that parent. Children usually sue because parents often have liability
insurance that would cover some or all of the medical expenses that would have to be paid due to the
child==s injuries.
Special Types of Liability Under the law of negligence there are several special types of liability and
some groups are held to a higher standard of care than the average person. For example, consumers can
sue a manufacturer of a product if the product is faulty or does not meet a required standard. The area of
law that deals with negligence on the part of manufacturers is called product liability. People who own or
occupy property have duty to maintain their property so that no one entering the property will be injured.
This legal responsibility is called occupiers== liability. Property owners must take particular care to protect
children who may be enticed onto their property by an item such as a swimming pool. Items that might
entice a child to enter someone==s property are known as allurements.
Hosts are people who serve alcohol to their guests and commercial hosts are people who serve alcohol to
patrons in a bar or restaurant. Commercial hosts have a statutory duty of care to their patrons and to
anyone who may be injured by their patron==s negligent driving. Sometimes the courts will find a person
liable for damages even though that person did not cause the plaintiff==s injuries. This kind of liability is
known as vicarious liability and it usually applies in the workplace where employers can be held
responsible for the actions of their employees. Strict liability is a special kind of liability that applies in
situations where an activity is so dangerous that the defendant is automatically liable in the case of injury.
In common law, strict liability applies in cases involving leaking toxic waste or harmful fumes or fires.
Today strict liability can be built into specific legislation such as environmental protection acts.
Defences to Negligence If you are sued for negligence, in your defence you can provide evidence to
show that you did not owe a duty of care to the plaintiff, that you met the standard of care, or that your
actions did not cause the damage. In addition, you may be able to prove that the plaintiff contributed to the
cause of the injury. This defence is known as contributory negligence.
A defendant could also use the defence of voluntary assumption of risk, which means that the plaintiff
knowingly and willingly assumed the potential risk normally associated with a particular activity. Contact
sports such as boxing or football carry a certain level of risk. Three other defences include inevitable
accident, Act of God, and explanation. An inevitable accident is caused by something the plaintiff had no
control over and could not have prevented with any amount of reasonable care. An act of God is similar
to an inevitable accident, but the event that caused the accident must be a natural event that is both
extraordinary and unexpected, such as a violent windstorm or torrential rains. In some situations a
defendant may argue that there is a valid explanation for an accident even though the defendant took
every precaution.
People are expected to sue for damages within a reasonable time and every province has a law known as
a statute of limitations, which specifies the period in which a person must sue for damages. The expiry
of that period of time is another defence in tort law.
Questions:
Worksheets:
p.368:1-2 (to be answered in class)
p.372:1-3
p.369:1-3 (to be answered in class)
p.370:1-3 (to be answered in class)
p.375:1-6,8,9,11
p.382:1-3 (to be answered in class)
p.384:1-2 (to be answered in class)
P.384:1-5
p.385:1-4,8
BLM 14-1
BLM 14-2
BLM 14-3
BLM 14-4
Assignments:
Study and analyse cases at end of chapter for extra practice.