Du Plessis CBL5e Instructor PPT Ch11

The Tort of Negligence

Chapter 11

Copyright © 2014 by Nelson Education Ltd. 1

The Tort of NegligenceLEARNING OBJECTIVESUnderstand the conduct that the law of negligence addressesUnderstand the principles of the law of negligenceUnderstand the defences in a negligence actionUnderstand the common kinds of negligence actions that businesses faceUnderstand the difference between negligence and strict liability


Negligence – Common Tort Action in Business

Very common tort because it covers a broad range of harmful conduct

Plaintiff need not show that the defendant intended to cause the damage

Instead, the tort of negligence makes the defendant liable for failing to act reasonably – for driving too fast, for giving unprofessional advice, or for not taking proper care of furniture entrusted to it.


Examples of Negligence Lawsuits

For example, a negligence action can be brought by someone

who has been injured by the dangerous driving of a delivery truck driver

who has suffered loss by relying on poor advice provided by an accountant, lawyer, architect, or engineer

whose furniture has been damaged in transit by a moving company


Overview of the Tort of Negligence

Arises where one party (defendant) has a duty to exercise care in regard to someone else (plaintiff)andcommits a careless act that causes harm to another by failing to show reasonable careandcauses losses due to the plaintiff that are not too remote


Step 1: Proving Duty of Care

1. DOES THE DEFENDANT OWE THE PLAINTIFF A DUTY OF CARE?DUTY OF CARE – The responsibility owed

to avoid carelessness that causes harm to othersNeighbour Principle

A duty of care is owed to anyone who might reasonably be affected by another’s conduct.


Proving Duty of Care (cont’d)

COURTS MUST CONSIDERIs the harm that occurred a reasonably

foreseeable consequence of the defendant’s act?Example: If the defendant is driving too fast, it is foreseeable that other drivers and pedestrians could be harmed – therefore, a duty of care exists.

Is there a relationship of sufficient proximity between the parties such that it would not be unjust or unfair to impose a duty of care on the defendant?



In many cases the courts have established by precedent that a duty of care exists in certain situations.Examples:Businesses in commercial relationships

have been held to owe a duty of care to their customers.

Bars have been found to owe a duty of care to other users of the road who might be harmed by a drunken patron who drives after leaving the premises.



If no precedent exists?The court will consider :if it was reasonably foreseeable that

someone in the plaintiff’s position could be harmed by the defendant

and whether there are any policy reasons

to deny a duty of care.



Example:The courts have found that while it is

foreseeable that a pregnant woman might harm her unborn child by not looking after her health, the courts have denied a duty of care because of policy considerations, including a woman’s right to sovereignty over her own body.


Step 2: Was There a Breach of the Standard of

Care?2. DID THE DEFENDANT BREACH THE

STANDARD OF CARE?REASONABLE PERSON – The standard used to judge whether a person’s conduct in a particular situation is negligentREASONABLE STANDARD OF CARE – The standards of behaviour that would be observed by a reasonable person in society


Was There a Breach of the Standard of Care? (cont’d)

If the defendant is a professional, he or she will be held to a higher standard than the average person and will be expected to meet the standard of his or her profession.

A lower standard may exist where the defendant is not an adult or in emergency situations.


Step 3:Causation of Damages

3. DID THE DEFENDANT’S CARELESS ACT OR OMISSION CAUSE THE PLAINTIFF’S DAMAGE?CAUSATION

The relationship that exists between the defendant’s conduct and the plaintiff’s lossThe plaintiff must show that the harm would not have occurred but for the defendant’s actions.If there are no damages, then the negligence lawsuit will fail.


Step 4: Was the Damage Too Remote?

4. WAS THE DAMAGE SUFFERED BY THE PLAINTIFF TOO REMOTE?REMOTENESS OF DAMAGE – The absence of a sufficiently close relationship between the defendant’s actions and the plaintiff’s lossThin Skull Rule Defendant is liable for the full extent of the

plaintiff’s loss, even where a prior vulnerability makes the harm more serious than it otherwise might be


Was the Damage Too Remote? (cont’d)

PURE ECONOMIC LOSS Financial loss that results from a

negligent act where there has been no accompanying property or personal injury damage to the person claiming the loss

Usually not compensable


Kauffman v Toronto Transit Commission [1960] SCR 251The Legal Question: Did the TTC cause Kauffman’s loss?Critical Analysis: Do you agree with the court’s analysis? Should not a business be liable whenever one of its customers is hurt?


Defences to Negligence:Contributory Negligence Unreasonable conduct by the plaintiff

that contributed to, or partially caused, the injuries suffered

The court will reduce the plaintiff’s award by their own percentage of fault.


Defences to Negligence:Voluntary Assumption of RiskNo liability exists, as the plaintiff agreed

to accept the risks inherent in the activity.

The defendant must show the plaintiff accepted the physical and legal risks of the activity.


Business’ Liability in Contract and Tort for the Consequences

of Online HackingIn 2011, Sony Corporation reported an outage of its online gaming service and five days later announced that their servers had been hacked and user data may have been accessed.Critical Analysis: What will the plaintiffs have to show to succeed in a tort action against Sony?


Negligent Misstatement Sometimes negligence takes the form of

work, such as where an incorrect statement is made carelessly.


Negligent Misstatement Most likely when someone is engaged

as a professional.PROFESSIONAL – Someone

engaged in an occupation requiring the exercise of specialized knowledge, education, and skill

Liability might even extend to non-client if their reliance on the advice was reasonable under the circumstances


Product LiabilityLiability relating to the design,

manufacture, or sale of the productProduct liability cases often involve

contract law as well but may also involve negligence.


Commercial Servers of Alcohol

Commercial establishments owe a duty of care to impaired patrons.

Can be liable to members of the public who are injured by the conduct of one of their drunken customers

Liability may be imposed on employers in the context of office parties based on the employers’ larger duty to provide a safe working environment.


Negligence Compared to Strict Liability

STRICT LIABILITY – The principle that liability will be imposed irrespective of proof of negligence

Largely confined to liability for fires, dangerous animals, and the escape of dangerous substances

Liability in contract and vicarious liability can also arise even if there is no fault or carelessness of the defendant.


Strict Liability – The International PerspectiveSome countries impose strict liability on

manufacturers for defective products.A manufacturer can be sued regardless

of fault under EU (European Union) law.


Negligence RevisitedNegligence law is an inherently flexible,

growing legal area.The four steps to a negligence action

describe general standards or markers that help a court assess whether the defendant in any given case has been negligent.

One of the most common defences to a negligence claim is that of contributory negligence.

Product liability involves both negligence law and the law of contract.


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Du Plessis CBL5e Instructor PPT Ch11