Torts

Negligence
Introduction
• Both individuals and business entities can be
liable in tort
• Tort liability concerns the duties and
responsibilities that we do not voluntarily assume
– We have certain obligations we simply cannot avoid
– In this sense it is the opposite of contract liability,
which concerns duties we freely assume
– Does not depend on any preexisting relationship
• As discussed last week, also remember that the
same action can lead to both criminal and civil
liability
Introduction
• From the Latin tortus, that simply means “wrong”
• In modern application, it refers to a potentially
recoverable wrong
• In reality, not every wrong thing a person might
do is a tort
– For example, there is no cause of action from
“negligence in the air”
• Tort law has become very broad, and it is more
productive to focus on principles rather than try
to count and enumerate every possible tort
• Negligence, alone, probably comes in endless
varieties
Strict Liability Torts
• A very few activities are so inherently dangerous that
there is really no way to displace liability only
through appropriate care
• For example, if you keep something around that’s
inherently dangerous, like a wild animal, and it
harms someone
– Cowles v Balac (Ont. SCJ, 2005)
• Strict liability is often misunderstood by students,
and you must remember that it applies in few cases
• It is the exception to how tort law is intended to work
Intentional Torts
• Many forms of injury may be caused
intentionally
• Where there is no question as to the
defendant’s intention, there generally
remains only the question of causation and
damages
• The text spends a lot of time on intentional
torts, and you can safely skim it
Insurance
• Tort law is inevitably affected by considerations
of who can be held liable and whether they have
funds to access
• Liability insurance serves simultaneously to
protect individuals against law suits and also,
incidentally, to allow for deeper pockets in some
cases
• Insurers also become very skilled at defending
claims when they wish to
• May distort the deterrence function of tort
Vicarious Liability
• When a business is concerned, the
business can be liable for the acts of its
employees
• The test for this relies mainly on whether
the employee was acting in the course of
their employment or not
– See Bazley v Curry (S.C., 1999)
• Of course the employer may hold the
employee liable for any loss in turn
Damages
• The normal rule in damages for tort is whatever
is required to make the victim whole, or
compensatory damages
– That is, as though the tort had not happened
– Of course money is not adequate for many kinds of
injury, yet the court will find a way to tally the cost of
any kind of injury in financial terms
• Some damages are too remote and therefore are
not recoverable
– That is, the damages are too far away from the harm
that was done
Damages
• Once liability is established, and some
damages are found to be foreseeable, the
defendant is liable for all damages that result,
even those that may be unforeseeable
– The thin skull rule applies to victims who are more
vulnerable than they may appear, and clarifies
they are entitled to recover all damages they
suffer
– Even movement between “types” of damage
(mental / physical) is possible, when not
excessively remote
Mitigation
• Those who have been injured in tort have
an obligation to mitigate their damages
• That is, they must take reasonable actions
to limit their injury and loss
• If they do not take this action, they will only
recover for damages as though they had
limited
• This applies also to contract, and we will
cover it in more detail there
Other Damage Concepts
• Punitive damages may be awarded in cases
where the defendant’s conduct is especially
blame-worthy
– This is unusual in Canada
– More common in the United States
– Different understanding of the purpose of damages
• Nominal damages may be awarded simply to
recognize a wrong, even if it does not result in
actual harm
• The court may also order an injunction,
preventing some ongoing harm or activity
Alternative Compensation
• Some schemes displace tort law entirely, to
provide alternative schemes for compensation
– Workplace safety and compensation
– No fault auto insurance
• These schemes focus on different priorities
– Compensation rather than concern for fault
– Certainty of recovery but smaller awards
– Greater insurance for the defendant
– Efficiency
Negligence
• Negligence is in many ways the essential tort
• It covers all situations where one individual
injuries another without meaning to
• In order to find negligence, the following are
required
– Duty of care owed from the defendant to the plaintiff
– Failure to observe an appropriate standard of care
– That the injury in question is actually caused by the
action complained of
Negligence: Duty of Care
• The classic case regarding general duty of care,
is Donoghue v. Stevenson (H.L., 1932)
• “You must take reasonable care to avoid acts or
omissions which you can reasonably foresee
would be likely to injure your neighbour.” – Lord
Atkin
– The Neighbour Principle
• Who is a neighbour?
• Just about anyone who might be foreseen, and is
sufficiently proximate (close) up to and including
(in some cases) trespassers
Negligence: Duty of Care
• There is a prima facie duty if the harm was
reasonably foreseeable and if the parties are
sufficiently proximate
– The specific harm (or something of that nature) must
be foreseeable
– The parties must be “sufficiently” proximate – a very
subjective test that again goes to foreseeability
• May refer to physical proximity
• May refer to relational proximity
• May incorporate other factors
Negligence: Duty of Care
• Must current (Canadian) articulation of duty of care
is the Anns-Cooper test
– Cooper v. Hobart (S.C., 2001)
• The Anns-Cooper test adds a further critical question
• Is there a reason, founded in public policy, which
would negate or limit this prima facie duty?
– The danger of unlimited liability
– Does the law already provide a remedy?
– Other?
• Policy considerations may compete with a desire to
see all injured parties able to recover
Negligence: Standard of Care
• The essential standard of care is that of a
“reasonable person”
– This is not the same thing as the “average person”
– In English conception, “the man on the Clapham
omnibus”
– Includes the expectation of reasonable prudence,
caution, and care
• Therefore, the standard of care is in most ways
objective, and set against a fixed standard,
though an abstract one
Negligence: Standard of Care
• Objectivity of standards is long-established
• Vaughan v. Menlove (U.K., 1837)
– Farmer kept his hay in a dangerous condition
– Ignored warnings from his neighbours
– Hay combusted and caused damage
– Claimed stupidity as a defense
• Subjective consideration is only available in
specific, limited cases
– The law recognizes the “reasonable child”
– A physically disabled person is required to be
reasonable and cautious in context of limitations
– Mental and psychological limitations tend not to be
recognized
Negligence: Standard of Care
• In finding the appropriate standard of care,
a court is likely to consider the following
– How likely is it that harm may result from the
activity at issue?
– How severe might the harm be?
– How possible and/or costly, would it be to
minimize the risk?
– What is the social utility of the activity?
Negligence: Standard of Care
• The Wagon Mound, No. 2 (P.C., 1967)
– Ship at habour discharges a volume of oil into
the water
– After a bizarre series of flukes, the oil catches
fire and causes considerable damage
– Although the risk of damage was very slight,
the social utility (nil) and cost of avoidance
(nil) suggest a responsibility to avoid the risk
– Defendant found liable
Negligence: Standard of Care
• Evidence of standard industrial practice is very
strong evidence of appropriate standards of care,
but not definitive
• The T.J. Hooper (U.S. 2nd Cir. 1932)
– A tug does not have a radio installed and suffers an
accident it could have avoided
– Radios in tugs (at this time) are neither common nor
required by any regulation
– Regardless, the low cost and importance of having a
radio establish a negligent practice
Negligence: Causation
• Essential standard of causation is the “but
for” test
• If the injury sustained by the plaintiff would
not have occurred but for the actions of the
defendant
• The standard of proof is on a civil standard,
that is on balance of probabilities
Defenses
• Even where negligence has occurred, a
defendant may have a defense to lessen liability
– The plaintiff may have contributed to their own harm
– Damages may be apportioned amongst the parties,
including the plaintiff
– This also applies when multiple parties are negligent
• Voluntary assumption of risk may also apply,
which negates liability entirely
– This is a very narrow rule, however
• If the plaintiff was acting illegally, it is also a full
defense
Negligence: The Basic Questions

• Is there a duty of care owed by the party

who caused the injury to the party who
sustained the injury?
– Neighbour principle (quite broad)
– Are there public policy considerations to
negate, such as unlimited liability?
• Was the standard of care breached?
– Standard is that of a reasonable person
– In professional contexts, standard is that of a
competent professional
Negligence: The Basic Questions

• Did the defendant’s conduct actually cause

the injury complained of?
– “But for” test
– Is this complicated in any way by other
contributing parties or causes?
• What are the actual damages that flow
from the negligent acts?
Next Week
• Midterm Test