Tort Law

NEGLIGENCE
 Negligence

Negligence
Involves inadvertent (non-intentional), careless
conduct that causes injury or loss to another
Important area of tort liability for professionals-
lawyers, doctors,
accountants, architects and other professionals
another
 Elements of negligence: A,B,C & D

In order to be successful in a negligence claim, you

must prove 4 essential elements (conjunctive
requirements):
- A: A duty to exercise care
- B: Breach of the standard of care
- C: Causation - The act caused the injury
- D: Damages - Victim suffered a loss
 Is a Duty owed?

Is a Duty Owed?

To determine if Duty of care is owed to anyone, need to apply the reasonable
foreseeability test
- Duty of care owed to anyone we can reasonably foresee would be harmed by
our actions
Donoghue v. Stevenson established test to determine if duty of care is owed
- Anns v. Merton London Burough Council case led to a further refinement of the
test-Now a two-stage test
First part: Degree of proximity between parties

Second part: Any reasons to allow court to modify nature of duty?

Ex: Driving in heavy traffic on Hastings Street
Ex: Throwing remote up in the air in a crowded room
Ex: pot hole on the street-duty of municipality
 Donoghue v. Stevenson decision [1932] AC 562 (HL)

Donoghue v. Stevenson case

• On the 26 August, 1928, Donoghue and a friend were at a cafe in

Paisley, Scotland.
• Donoghue's friend ordered and paid for her drink- a ginger beer.
• The cafe they were at purchased the ginger beer from a distributor that
purchased it from a manufacturer called Stevenson.
• The ginger beer came in a dark bottle, and the contents were not
visible from the outside.
• Donoghue drank some of the contents and her friend lifted the bottle to
pour the remainder of the ginger beer into the glass.
• That is when they noticed, dropping out of the bottle and into the glass,
remains of a snail in a state of decomposition.
 Donoghue v. Stevenson continued

• Donoghue suffered a sever shock and later complained of

stomach pain and her doctor diagnosed her as having
gastroenteritis.
• Donoghue sued Stevenson, the manufacturer of the drink,
for negligence. She claimed 500 pounds in damages.
• Now, Donoghue could not sue Stevenson for breach of
contract, because her friend had purchased the drink for
her.
• Instead, her lawyers argued that Stevenson, the manufacturer, had
breached a duty of care to his consumers and had caused injury
through negligence.
 Donoghue v. Stevenson continued

• A claim in negligence, at the time, was largely untested.

• Stevenson's lawyers challenged Donoghue's action, on the basis
that no precedents existed for such a claim.
• They referred to an earlier action by Donoghue's lawyer, Mullen
v. AG Barr, where a dead mouse was found in a bottle of soft
drink; judges in this case dismissed it because of a lack of
precedent.
• Donoghue failed at trial and appealed the decision to the House
of Lords. Finally, her claim was successful.
• HL affirmed affirmed that negligence is a tort. Previously the plaintiff
had to demonstrate some contractual arrangement to successfully
advance a claim in negligence. Donoghue could not show any
contractual arrangement with Stevenson as she had not purchased the
drink.
 Donoghue v. Stevenson continued

• The HL, however, held that manufacturers owed duty of care to the
end consumers of their products.
• Lord Atkin's stated "a manufacturer of products, which he sells... to
reach the ultimate consumer in the form in which they left him... owes
a duty to the consumer to take reasonable care".
• Lord Atkin went on to establish what is known as the "neighbour
principle". "You must take reasonable care to avoid acts or omissions
which you can reasonably foresee would be likely to injure your
neighbour. Who, then, in law, is my neighbour? The answer seems to
be persons who are so closely and directly affected by my act that I
ought to have them in [mind] when I am [considering these] acts or
omissions.99—This is where the forseeability test comes into play
 Donoghue v. Stevenson continued

In summary:
• If a manufacturer is going to put its products in the channels of
commerce, then it owes a duty of care to all end consumers of its
product.
• End consumers are not always the purchasers. You mom, dad, brother
and sister may buy things that you end up consuming often.
• For example: Toyota recalled more than 10 million vehicles after receiving
claims that the vehicles were accelerating unexpectedly. Many incidents of
sudden acceleration occurred when floor mats were caught under accelerator
pedals. In others, the pedals themselves may have been defective. If you dad
bougt you one of those cars from a Toyota dealer and you got into an accident
because of the defect, you would likely be able to establish that Toyota owed
you- end cosumer- a duty of care.
Anns v. Merton London Burough Council
[1978] AC 728 (HL)

Anns Case- (Still under duty of care question)

50 years after Donoghue v. Stevenson, in 1978,the HL, in the case of Anns v.
Merton Burough case, established a broader test for establishing a duty of care.
Often it is said that Anns case established a two stage test for establish whether
duty of care exists.
In Anns, the plaintiffs were tenants in a block of flats under a 999year lease.
The flats suffered from structural defects due to inadequate foundations which
were 2ft 6in deep instead of 3ft deep as required by the bylaws of the Burough.
The defendant Merton Burough Council was responsible for inspecting the
foundations during the construction of the flats. Their inspector failed to
properly inspect and the Plaintiffs noticed cracks in the ceilings of the flat.
Developer was likely long gone and the plaintiffs pursued the Defendat
Merton Burough.
 Anns case-continued

• The HL held that the defendant did owe a duty of care to ensure the
foundations were of the correct depth.
• Lord Wilberforce introduced a two stage test for imposing a duty of
care:
1. Is there a sufficient degree of proximity/relationship between the parties -A and B- such
that, it is forseeable to A that carelessness on his part may likely cause
injury/damage to B? If yes then a duty of care arises.
2. Is there any (policy) reason why the court should modify (or reduce or limit) the
scope of that duty?

- For example: Potholes case-countless potholes, forseeable to municipalities that

potholes may cause injury to drivers and damage to drivers' cars. Inefficient and
not practical to hold municipalities liable for each pothole as impossible to repair
all-budget constraints-manpower constraints-will bankrupt all including the richest
municipalities.
 A Duty To Exercise Care Must Exist

• It is important also to make a distinction between:

• Misfeasance
- An act that causes harm to another (wrongdoing)
- Court will provide remedy
• Nonfeasance
- A failure to prevent an injury
- Courts reluctant to provide remedy
Nonfeasance will lead to liability only where you can show that a
party had a special relationship with the victim where a duty of
care arose and the tortfeasor failed to act:
e.g. Michael Jackson's doctor-paid on a retainer, failed to act; paramedic on duty
fails to act; life guard on duty fails to act.
Good Samaritan Act, RSBC [1996] c. 172

No liability for emergency aid unless gross negligence

1. A person who renders emergency medical services or aid to an ill,
injured or unconscious person, at the immediate scene of an accident or
emergency that has caused the illness, injury or unconsciousness, is not
liable for damages for injury to or death of that person caused by the
person's act or omission in rendering the medical services or aid unless
that person is grossly negligent.
Exceptions
2 Section 1 does not apply if the person rendering the medical services or aid
(a) is employed expressly for that purpose, or
(b) does so with a view to gain.
 Standard of Care

• Circumstantial evidence may lead to finding of negligence-

-Donoghue and Stevenson case was one such case. No witnesses to
snail getting in the bottle but circumstantial evidence used. Had to
have happened at the bottling facility. Care should have been used
there.

Special standards may be set by statute

- Occupiers' liability acts-s.3 of the Act sets out stat duty of care occupier
(not owner) owes to invitees, licensees and lesser duty to trespassers

• Insurance to avoid risks of tort liability

- ICBC insurance
- Malpractice insurance
- Directors' errors and omissions insurance
 B: Breach of the Standard of Care

• Once duty of care established and there is no policy reason why it

should be limited or not enforced, next look at the 2nd element:
Was there a breach of the duty/the standard of care?

• Ask question: What would a "reasonable person" have done in the

circumstances?
 "Reasonable person" is a prudent/careful person, in possession of all the
relevant facts, exercising care

- Reasonable person is: Not the average person; Not the perfect
person; Does not exist in reality
-E.g. Reasonable person would not have been texting while driving;
not throw remote in the audience as that sort of conduct falls
below socially acceptable standards and breaches duty of care.
B: Breach of the Standard of Care…
continued

• The greater the risk of injury the higher the standard of

care under this second element.
Ex: Case: of Jon Orders- In April 2012, Mr. Orders, a 51 year old British
Columbia hang-glider pilot, failed to connect a 28-year-old woman, Lenami
Godinez-Avila, to the aircraft during a tandem flight across BC's Fraser valley, and
caused her to fall from the hand glider 300 metres to her death. Orders didn't hook
Godinez-Avila to the glider and also failed to conduct a required safety check before
launching. After he landed, he swallowed a memory card containing video of the
incident.

• Here the risk of injury was great and therefore a correspondingly higher standard of
care.
• He actually plead guilty in criminal court for negligence causing death and was
sentenced to 5 months in prison
Parent of the victim may also sue him in a civil action. I am sure he had insurance that
covered his defence.
 B. Breach of the Standard of care-Professionals-continued

• What is the standard of conduct expected of a

professional?
- Professionals are required to have degress of
expertise of a reasonable professional in that field:
• Reasonable doctor
• Reasonable lawyer
• Reasonable hand gliding pilot;
• Reasonable accountant
• Reasonable bus driver etc
 B. Breach of the Standard of care-Professionals-continued

• Inexperience is no defence-not a different standard for a

junior lawyer, doctor, dentist, architect.

• Standard practice of the profession may not be enough-

taking short cuts because that is what other lawyers/doctors/dentists do.
Prudent professional test not average professional.

• Professionals [exercising special skills may also owe a

duty of care for pure economic loss suffered by a third-
party [someone they have no contractual relationship with- SCC
decision in Haig v. Bamford case-over the page- supports this
proposition]
Haig v. Bamford: professional may owe a duty of care
to third-parties

• In Haig v. Bamford, an accounting firm negligently prepared financial statements for a

company, knowing that the statements would be used to encourage investors to invest in
the co.
• Haig, relying on the incorrect financial statements purchased a number of shares , but
found the co was considerably less profitable than the incorrect financial statements had
led him to believe. As a result he suffered a financial loss and sued the accounting co.
• Ct. found that there was a duty of care owed by the accounting firm to Haig even though
there was no direct contractual relationship between Haig and the accounting firm,
Bamford. The contractual relationship was between the Co and Bamford only.
• Here the court did not adopt the reasonable forseeability test developed in Donoghue v.
Stevenson as that was too broad in such cases. Instead the court ruled that liability will
extend in such cases where when the person making the misleading statement actually
knew it was to be used/or relied on by an individual or a class of people. Here Bamford
was aware that potential investors would rely on it. They owed a duty of care to this
class of people (investors).
 C and D: Causation and Damage

• After showing breach of the duty of care, next must show that the breach
caused of injury or damages- have to show causation.

• Proving causation involves two steps- have to show physical causation and
legal causation.

• Physical causation involves :

 "But for" test - "but for" the conduct of the defendant, no injury would have resulted
(Physical causation)—If answer yes- then you have established physical causation.

• Legal Causation involves the Remoteness test - Whether the specific type of
injury suffered was reasonably foreseeable (Legal causation)
 Mustapha case-over the page

• Thin skull rule. Take victims as they are found

 C and D: Causation and Damages: Mustapha and Culligan
Water case (Remoteness)

• Mr. and Mrs. Mustapha were always both concerned about their
hygiene and health, keeping their house clean at all times. They heard
that Culligan water provided health benefits over city water. They
installed Culligan water dispensers in both the salons and their
home. For 15 years they were loyal customers of the brand.

• In November, 2001, while Mustapha and his wife were replacing the
water dispenser at home, they spotted a dead fly and part of another
inside the new, sealed Culligan water bottle.

• At the sight of the fly, Mrs. Mustapha vomited immediately. Mr.

Mustapha became nauseous and suffered of abdominal pains. From
seeing the fly in the water, he said he developed major depressive
disorder, phobia, and anxiety.
C and D: Causation and Damages: Mustapha and Culligan continued

• He said the fly in the water ruined his life, even wrecking his sex life. He said for
months he could not drink coffee made with water, and feared letting the shower water
hit his face directly. His regular nightmares involved flies flying on top of feces.

• Mr. Mustapha demanded financial compensation for his psychiatric injury caused by
Culligan's negligence in allowing the fly into the water bottle.

• At trial, the Ontario Divisional Court found Culligan liable in negligence, and awarded
Mr. Mustapha with $80,000 in general damages, $24,174.58 in special damages, and
$237,600 for loss of business.

• Culligan was concerned about the precedent of having to pay major financial
compensation for relatively minor lapses such as this. Other customers might make
similar claims for extraordinary compensation on the basis of a fly in the water, or even
less.
• Culligan appealed successfully to the Ontario Court of Appeal, which overturned the trial decision
on the basis that Mr. Mustapha's reaction to the dead fly was not reasonably foreseeable, and hence
did not give him a right to compensation. Appeal to SCC by Mustapha was unsucessful as SCC
agreed there should be no compensation paid by Culligan to Mr. Mustapha.
 D: Damages

• Unlike intentional torts, which may be

actionable without specific damage,
negligence requires a loss to person or
property
- "No pain, no gain"
 Defences to Negligence

• Contributory negligence
- If plaintiff contributed to own loss, he/she must bear
some responsibility [e.g. Did not wear a seatbelt in the
accident]

- Most jurisdictions have a Negligence Act

that allows courts to assign proportional liability among plaintiff and
defendants
Negligence Act (BC)
Apportionment of liability for damages
1 (1) If by the fault of 2 or more persons damage or loss is caused to one or more of them, the
liability to make good the damage or loss is in proportion to the degree to which each person
was at fault
 Defences to Negligence (Continued)

• Voluntary assumption of risk also known as Volenti

non fit injuria. Persons who volunteer to enter a
situation where the risk of injury is obvious; and
accept the legal risk that they are waiving their claim
for damages may not recover damages
e.g. sky diving, frequently people hurt their ankles on landing.
Likely a disclaimer clause in contract as well;
Defences to Negligence (continued)

• Remoteness [already discussed]

- Mustapha case
- Must determine whether a particular injury was reasonably
foreseeable

- If connection between the conduct and injury was too indirect or

unexpected, no liability will be imposed

- If legal causal connection is found, victims must be fully

compensated, even if more vulnerable to loss than usual- [Thin skull
rule; "you take your victim as you find him"- In the MVA, "Too bad
pregnant woman who was constitutionally more vulnerable than a
huge weightlifter
 Products Liability

• Must show defendant failed to live up to standard of reasonable

manufacturer
• May use prima facie case of negligence (circumstantial evidence) [Snail
could only have gotten in at the bottling plant as the decomposed state
would suggest that this would not have happened when the bottle was
opened at the cafe]
• In some jurisdictions, manufacturer has increased liability through
statute NEED TO ESTABLISH ALL 4 ELEMENTS: A,B,C & D before
you will successfully be able to advance a claim. Conjunctive
requirements. If you miss one element, you will not succeed