Negligence

Definition Negligence Anyone who creates an unreasonable risk and carelessly injures another person or a person’s property should compensate the victim for that injury A person’s failure to exercise reasonable care, which results in injury to another

Elements to prove in negligence Duty of care Standard of care Foreseeability The reasonable person Causation Actual Loss

Duty of Care The obligation that is required to ensure that others are not harmed by one’s actions

Standard of Care The degree of caution expected of a reasonable person when carrying out an action that involves risk of harm to others

Foreseeability If the type of injury or loss suffered by the plaintiff could have reasonably been anticipated or expected to result from the defendant’s action, then it was foreseeable.

The Reasonable Person The standard used in determining whether a person’s conduct in a particular situation is negligent A person or company whose conduct falls below the reasonable standard of care expected is liable for the results of the negligence, even if the person was acting within the law. (i.e. excessive speed in snowstorm) Would a reasonable person in similar circumstances have foreseen the injury to the victim as a result of his/her action?

Causation The fact of being the cause of something that happened After standard of care is proven to have been breached, then the plaintiff must prove that the negligence did indeed cause the tort. An important principle in law of negligence

Actual Loss Plaintiff must prove he/she suffered some actual injury or loss as a result of the defendant’s negligence

Burden of Proof The burden of proof falls to the plaintiff to prove that the negligence of the defendant caused the injury or loss.

‘res ipsa loquitur’ the facts speak for themselves

More on Causation “Negligence is the biggest area of tort litigation.” It is said, “there must be a link of ‘causation’ between the negligent act and the harm or damage.” “Causation is an expression of the relationship that must be found to exist between the tortuous act of the wrongdoer and injury of the latter out of the pocket of the former.” (Snell v Farrell, Supreme Court of Canada, 1990).

Allen Linden in Canadian Tort Law (Butterworths Legal Publishers, 1993, p.99) explains: “The most commonly employed technique for determining causation-in-fact is the ‘but for’ test, sometimes called the sine qua test. It works like this: if the accident would not have occurred … but for the defendant’s negligence, this conduct is a cause of the injury. Put another way, if the accident would have occurred just the same, whether or not the defendant acted, this conduct is not a cause of the loss. Thus, the act of the defendant must have made a difference.” (http://wwlia.org/~wwlia/ca-caus.htm p1. Accessed 22 Feb 1998)

Defenses to Negligence The best defense is that negligence did not exist. Contributory negligence – here both the plaintiff and the defendant must accept blame and any damages awarded will be apportioned between them. Voluntary assumption of risk – defendant must prove that the plaintiff clearly know the possible risk of his/her actions and made a choice to assume the risk.

Children and Negligence Can children (minors) be sued? Yes and no. Each case is assessed on its own merits. A child, too young to understand the consequences of his/her action, is not likely to be held liable. A teenager engaged in adult activities may very well be held liable. Can parents be held liable for the actions of their child(ren)? Yes. As in the case of Floyd v Bowers, page 300 of the textbook, All About Law, this is an example of vicarious liability.

Motor Vehicle Negligence Motor vehicle accidents are the leading cause of death in Canada. Usually the Burden of Proof is on the plaintiff except here. After a plaintiff proves that he or she was struck by another vehicle, then the burden of proof shifts to the defendant to prove to the court that any loss or injury did not result from the defendant’s negligence.

Are drivers liable for passengers? Yes Vicarious liability – holding a blameless person responsible for the misconduct of another. Ex: Parents of minors who vandalize the neighbourhood Employers of employees who steal from the client Drivers who do not ensure that 15 year olds and under buckle up Drivers who loan their vehicle to someone who gets drunk and drives headlong into an accident.