Negligence and Duty of Care

Negligence

• Negligence is inadvertent or unintentional careless conduct that causes injury or damage to another person or their property
• To succeed in a negligence action, establishment of all four required elements is needed: a duty of care, breach of duty, causation, and damage.

Duty of Care

• A duty is owed to anyone that is reasonably anticipated might be harmed by conduct
• The proximity of the parties creates an obligation to exercise caution or care
• The "reasonable foreseeability test" establishes a duty of care if a prudent person would find the conduct likely to cause injury
• The "Anns case" created a two-stage test for determining the existence of a duty of care based on foreseeable injury and proximity, and policy exceptions
• The "Donoghue v. Stevenson" case is very important in determining duty of care

Misfeasance and Nonfeasance

• "Misfeasance" is an act that causes harm to another with court providing remedy
• "Nonfeasance" is a failure to prevent an injury, where courts are reluctant to provide remedy

Breach of Standard of Care

• Once a duty is established, whether the defendant demonstrated sufficient care becomes the key issue
• The "reasonable person test" asks what a reasonably prudent person, with all the facts, would have done
• Reasonable care, not perfection, is the standard, varying with circumstances and risk of injury
• Conduct falls below socially acceptable standards, it creates liability for damages
• The expertise of the person being sued, and expectations for children, affect reasonable conduct

Causation and Damages

• To prove negligence, a loss to person or property must occurred to make a claim
• An injury needs to have occurred to prove negligence
• Courts now recognize economic and mental injury, past requiring physical damage

Physical Causation

• Damage must be a direct result of the careless conduct
• The "but for" test of physical causation determines whether the injury would have resulted "but for" the defendant's conduct

Legal Causation

• The remoteness test of legal causation determines whether the specific injury type was reasonably foreseeable, referencing "Mustapha v. Culligan of Canada (2008)"
• Remoteness factors in both proximity of the parties (duty of care) and causation
• The "thin skull rule" holds one liable for the full extent of injuries suffered, taking victims "as we find them"

Defences to Negligence

• Voluntary assumption of risk (Volenti non fit injuria)
  • The law will not assist those who volunteer to bear risk
  • The defendant must show that the plaintiff assumed the physical and legal risk
  • Successful claims of volenti is rare today
• Contributory negligence
  • Courts will apportion the loss between the parties
  • Last clear chance doctrine is now less commonly used
  • Provincial statutes now allow courts to apportion responsibility
• Illegality (ex turpi causa)
  • Courts will not hear lawsuits brought by those engaged in unlawful activity
  • Illegal conduct must cause loss to the plaintiff
  • This is to preserve the integrity of the legal system
  • It is rarely successful

Occupier's Liability

• Refers to the legal duty of care owed by an occupier of land, someone in physical possession and control, to individuals on the property
• Visitors categorize into invitees, licensees, and trespassers
• "Addie v. Dumbreck (1929)" states no duty of care, but "British Railways Board v. Herrington (1972)" declares duty of care to trespassers
• "Mitchell v. Canadian National Railway Co. (1974)" also addresses duty of care, SCC case
• Liability is established for commercial establishments and businesses supplying liquor
• "Childs v. Desormeaux (2006)" deals with social hosts, SCC case

Strict Liability

• Liability when there is no fault
• Vicarious liability is a form of strict liability where an employer is held responsible for an employee's wrongful acts

Product Liability

• Concerns liability for injuries caused by defective products due to inherent defects or their nature
• Manufacturers are liable for injuries caused by defective products, requiring proof of a duty of care and failure to meet it
• A plaintiff must establish the manufacturer was negligent
• Intermediate inspection by a third party may absolve the manufacturer from liability
• Warnings by the manufacturer must be sufficiently adequate

Liability of Professionals

• Liability is often set out in contract
• Liability is often set out in contract
• Can be liable with third parties

Breach of Standard of Care (Professionals)

• Require skills and abilities expected of a reasonable professional in that field
• Common practice that is dangerous or careless is not a excuse

Insurance

• Reduces the cost of loss by spreading the risk
• Transfers the risk from the insured to the insurer
• Premiums increase with the amount of risk

Professional Insurance

• Often a condition of practice for professionals and protects against damages from errors and omissions
• Premiums can be a significant expense, rising due to claims
• May cover legal costs, but not fraud or breach of trust

Liability Insurance

• Covers damages caused by negligence of self or employee but does not cover willful acts

Property Insurance

• Covers losses to buildings and their contents from fire or other named perils
• Comprehensive insurance covers everything except the items that are specifically excluded
• Coverage should correspond to actual value of the property

Business Interruption Insurance

• Covers an unforeseen event that causes a business to cease operation
• Covers lost profits and expenses of bringing business back into operation
• Puts insured in same financial position had a loss not occurred

Life and Health Insurance

• Life insurance provides for dependants and/or Business associates ("key person") due to passing
• Health insurance covers health care expenses for the medical and provides for disability income for disabled worker