1. Chapter 4 The Law of Negligence

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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
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3. Elements of Negligence
The elements of negligence are
a duty of care owed by the defendant
a breach of the duty of care
an injury to the plaintiff
proximate cause between the breach and the plaintiff’s injury
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Definition of Tort
An intentional or unintentional injury (other than a breach of contract) to the victim’s
body
mind
property
pocketbook
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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?
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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.
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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
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Intentional Torts
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
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9. Defences to Intentional Torts
Consent
Self defence
Defence of property
Defence of a third person
Necessity
Legal authority
Lack of intention
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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.
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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.
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Res Ipsa Loquitur
means “The thing speaks for itself”
Without negligence, injury would not normally have occurred
The elements are
injury caused by misadventure not normally occurring without negligence
the thing causing the injury was within the defendant’s control
the plaintiff did nothing to provoke the accident
the plaintiff had no prior knowledge of the danger
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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.
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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.
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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 it
the 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 flowed
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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.
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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.
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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.
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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.
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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 statement
consent of the plaintiff
absolute privilege
qualified privilege
fair comment
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Injurious Falsehood
Defaming a business, a product or a property rather than a person
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Nuisance
Interference with another person’s use and enjoyment of their land
Must be continuing and unreasonable
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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.
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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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