1. Unintentional Torts

2. Negligence
conduct falling below what would be expected of a reasonable person in the same circumstances
a reasonable person is one who is accepted by society

3. 4 Elements of Negligence
Plaintiff has suffered actual damages
Proximate Cause (Causation) – the defendant actually caused the damage
Lack of Reasonable Duty of Care (Standard of Care)
Foreseeability – the danger could have been foreseen (predicted) by the defendant
Example: someone pulling a fire alarm as a joke
Causation- ie failing to shovel, causing an accident
Lack of Reasonable duty - Your actions cause harm to others
Foreseeability - Knew that they could cause harm
Fire alarm- people stampede out, others get trampled and injured

4. McDonald's case
Explain how each element of Negligence is present in this case.
Plaintiff has suffered actual damages
3rd degree burns from the coffee
Causation
Served coffee
Lack of Reasonable Duty of Care
Served coffee at scolding temperature
Foreseeability
Someone could spill on themselves (500 previous cases)

5. Motor Vehicle Negligence:
a large percentage of tort actions are as a result of vehicle accidents (most common tort)
falls under the Ontario Highway Traffic Act or the Criminal Code (federal)
Ontario Road Safety Annual
Report (2009)

6. Liability

7. 1. Car Owner:
 liable for negligence of any driver of his/her car, when the car is being used with the owner’s permission (parents, workplace)
holding a “blameless person” responsible (liable) for the misconduct of another is called Vicarious Liability
Example: - lending your car an employer may be found liable for all acts committed by an employee acting in the course of employment
Vicarious Liability – when a person is responsible for another’s tort
Vehicle owner have a Duty of Care to lend their vehicles to competent driver  if stolen there is no liability
Supreme Court of Canada brings clarity to vicarious liability of churches in Canada

8. 2. Passengers
may take civil action against the wrongdoer (more than 1 driver)
may contribute to your own damages (contributory negligence) → may lessen your compensation
Example: not wearing your seatbelt (up to a 25% reduction in damages)

9. 3. Driver
If the driver collides with a pedestrian (or property), it is up to the driver to prove that he/she was not negligent (they stepped out into traffic)
reverse onus (usually you’re innocent until proven guilty)
What happens if you are injured by a person with no insurance and no personal resources? or
a victim of a hit and run?
Ontario government has established “motor vehicle Accident Claims Fund” (MVACF)  considered to be a “payer of last resort”

10. * Motor Vehicle Accident Claims Fund (pays for bodily injury) - in criminal court, perhaps the convicted can be forced to pay restitution (garnish wages, payment plan, seize assets) If civil action is taken and is successful one can apply to this fund for compensation The driver must repay in part or in full before a driver’s license and owner’s permit is returned

11. Manufacturer’s Liability (company)
most important case in this area of tort law – Donoghue vs. Stevenson (1932)
established that a manufacturer has a “duty of care” to the buyer of goods, or anyone else harmed by the goods
took every reasonable precaution in production and inspection of the goods
Vicarious Liability – found liable even though directly not at fault (blameless)
Read Case – Donoghue v. Stevenson p.396
Read Case – Mustapha v. Culligan of Canada Ltd. P. 365
Walford v. Jacuzzi Canada Inc. p. 399

12. Occupier’s Liability Act
a reasonable person should foresee that certain harm might come to people entering their property
Examples:
Handrails on a porch are secure
Store owner – floors are dry and free of obstructions.

13. 1. Invitees
a higher standard of care is owed to visitors who you invite for financial benefit (business visitors)
business visitor is not a social visit (ex. students at school, delivery person)
* must take reasonable care to protect from unusual dangers that the owner “ought to know” about – this applies to business or social visitors

14. 2. Licensees
 enters by permission of the occupier (ex. social visit – no financial benefit)
used to be a lower standard of care necessary but now the same standard of care is owed as to an invitee
must warn guest of any unusual dangers

15. 3. Trespassers
a minimal degree of respect is owed to a person who enters another person’s property without permission (cannot act illegally though)
Example:
Burglar
Burglar suing for negligent shooting:
Burglar suing for negligent shooting:

16. Occupier’s Liability Act
abolition of distinction between 1 and 2 ( a higher duty of care owed to both Invitees and Licensees in some provinces including Ontario)
Example: Invite a business colleague to dinner - it is both business & social
Case: Driving incident

17. Liability for Children

18. Allurement
something that is inviting or luring to young children that might be dangerous
Ex. swimming pools, construction sites, steep hills
the land owner must be able to show that all reasonable precautions have been taken to prevent accidents (fences, signs)
“extra” duty of care when children are involved

20. Parental Liability
parents are not automatically legally responsible for the torts of their children unless it can be shown that the parents themselves have also been negligent (standard of care)
Example: Floyd et al v. Bowers et al
p. 300 (old text)

21. Ontario, Manitoba, and BC have passed the Parental Responsibility Act which makes parents of those under 18 responsible if the victim proves
that the child caused the property damage or loss
that the defendant(s) are the child’s parents
the amount of the damage

22. The parents are liable unless:
they can prove that the damage was not done on purpose or
the parents must prove that they supervised the child and reasonably tried to prevent the damage.
So far very few cases have been tried under this legislation.

23. Medical Malpractice
Negligence – The more specialized the doctor, the higher the standard of care. Comparison is to others with the same qualifications to determine if they were negligent
Example:
If they don’t inform a patient of the risks
Must consent to treatment

24. Informed Consent – Doctor performed an action that led to damage without fully explaining or the defendant fully understanding ALL of the potential risks.
Example
Doctor’s ignorance of a particular risk is not a defence (example: side effects of a drug)

26. Defences to Negligence (Defendant)

27. 1. Voluntary Assumption of Risk
 one willingly or voluntarily assumes a risk, a person causing damage will not be held liable.
Examples:
a fan hit by a puck at a hockey game, skydiving, bungee jumping
Assumes individual understands the risks involved in various activities
A plaintiff who voluntarily gets into a car with a drunk driver assumes risk

28. 2. Act of God
an inevitable accident may be described as one that is unavoidable no matter what precautions the reasonable person has taken
Example: lightning strikes a car causing it to collide with oncoming traffic

29. 3. Contributory Negligence
both plaintiff and defendant are in some way negligent and cause an accident
damages will be split between them or more than 1 defendant blamed
Example: not wearing a seatbelt and being involved in an accident – plaintiff is partly negligent for his/her own injury

30. 4. Participation in Illegal Activities
usually the wrongdoer (illegal activity) cannot sue for damages
Example: John thinks he is buying marijuana (illegal substance) from Bob, however, he actually bought grass weeds. John wants to sue Bob.