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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.

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Presentation on theme: "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."— Presentation transcript:

1 Chapter 4 The Law of Negligence

2 Copyright © 2007 by Nelson, a division of Thomson Canada Limited 2 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

3 Copyright © 2007 by Nelson, a division of Thomson Canada Limited 3 Elements of Negligence  The elements of negligence are a duty of care owed by the defendanta duty of care owed by the defendant 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 breach and the plaintiff’s injuryproximate cause between the breach and the plaintiff’s injury

4 Copyright © 2007 by Nelson, a division of Thomson Canada Limited 4 Definition of Tort  An intentional or unintentional injury (other than a breach of contract) to the victim’s bodybody mindmind propertyproperty pocketbookpocketbook

5 Copyright © 2007 by Nelson, a division of Thomson Canada Limited 5 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?

6 Copyright © 2007 by Nelson, a division of Thomson Canada Limited 6 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.

7 Copyright © 2007 by Nelson, a division of Thomson Canada Limited 7 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

8 Copyright © 2007 by Nelson, a division of Thomson Canada Limited 8 Intentional Torts 2  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

9 Copyright © 2007 by Nelson, a division of Thomson Canada Limited 9 Defences to Intentional Torts  Consent  Self defence  Defence of property  Defence of a third person  Necessity  Legal authority  Lack of intention

10 Copyright © 2007 by Nelson, a division of Thomson Canada Limited 10 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.

11 Copyright © 2007 by Nelson, a division of Thomson Canada Limited 11 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.

12 Copyright © 2007 by Nelson, a division of Thomson Canada Limited 12 Res Ipsa Loquitur  means “The thing speaks for itself” Without negligence, injury would not normally have occurredWithout negligence, injury would not normally have occurred  The elements are injury caused by misadventure not normally occurring without negligenceinjury caused by misadventure not normally occurring without negligence the thing causing the injury was within the defendant’s controlthe thing causing the injury was within the defendant’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

13 Copyright © 2007 by Nelson, a division of Thomson Canada Limited 13 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.

14 Copyright © 2007 by Nelson, a division of Thomson Canada Limited 14 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.

15 Copyright © 2007 by Nelson, a division of Thomson Canada Limited 15 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 itthe plaintiff knew about the risk and understood it the plaintiff had a choice to avoid the risk but instead voluntarily assumed itthe 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 flowedthe defendant was not in breach of any statutory duty from which the injuries flowed

16 Copyright © 2007 by Nelson, a division of Thomson Canada Limited 16 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.

17 Copyright © 2007 by Nelson, a division of Thomson Canada Limited 17 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.

18 Copyright © 2007 by Nelson, a division of Thomson Canada Limited 18 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.

19 Copyright © 2007 by Nelson, a division of Thomson Canada Limited 19 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.

20 Copyright © 2007 by Nelson, a division of Thomson Canada Limited 20 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 statementtruth of the statement consent of the plaintiffconsent of the plaintiff absolute privilegeabsolute privilege qualified privilegequalified privilege fair commentfair comment

21 Copyright © 2007 by Nelson, a division of Thomson Canada Limited 21 Injurious Falsehood  Defaming a business, a product or a property rather than a person

22 Copyright © 2007 by Nelson, a division of Thomson Canada Limited 22 Nuisance  Interference with another person’s use and enjoyment of their land  Must be continuing and unreasonable

23 Copyright © 2007 by Nelson, a division of Thomson Canada Limited 23 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.

24 Copyright © 2007 by Nelson, a division of Thomson Canada Limited 24 Preventing Negligence Claims  Standard operating procedures  Staff training  Adherence to regulations  Record keeping  Use of waivers, disclaimers and releases  Insurance


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