4 Tort Law in Canada Part II: The Unintentional Torts
Learning Objectives
- Introduce the concept of unintentional torts.
- Explain the concept of negligence, including the elements of duty of care, breach of the standard of care, and causation.
- Understand the concept of occupiers liability and its application to property owners and occupiers.
- Explain the concept of strict liability and its application to certain activities or products that impose liability regardless of fault or negligence.
- Evaluate the defenses available in unintentional tort cases, including contributory negligence and assumption of risk.
The Unintentional Torts
Should we attach liability when someone does not intend to commit an act? Should we hold those who fail to act with care responsible for losses? If so, how do we determine the boundaries of what is fair when someone commits a careless act?
Imagine the following scenario. A driver, distracted by checking a text message on their phone, hits a pedestrian crossing the street. The pedestrian suffers severe injuries and decides to sue the driver for negligence. In this case, it is evident that the pedestrian has a strong case for holding the driver liable. The driver’s carelessness in checking the text message while driving directly caused the accident and resulted in harm to the pedestrian.
However, what about this scenario. After being injured in the accident, the pedestrian decides to sue not only the driver but also the person who sent the text message that distracted the driver. The pedestrian argues that the sender of the text should share the responsibility for the accident because their message caused the distraction. Is this fair? To what extent did the sender act carelessly and should they be responsible for the pedestrian’s injuries.
While it is understandable that the pedestrian may feel aggrieved and want to hold all involved parties accountable, it may be challenging to establish the sender’s legal liability. The sender likely did not have direct control over the driver’s actions and did not force them to check the text message while driving.
These types of considerations (and interesting debates) are the heart of what is called: the unintentional torts.
While intentional torts are those in which the person committing the tort had the intention to cause harm or injury, unintentional torts impose liability even where the tortfeasor did not intend to cause harm or injury. The major distinction is that intent is not required for unintentional torts.
In this chapter we will examine three unintentional torts: negligence, occupier’s liability, and strict liability.
The Law of Negligence
The law of negligence is based on the principle that people have a legal duty to take reasonable care to avoid causing foreseeable harm to others. If someone fails to meet this standard of care and someone else is injured or suffers a loss, the failure to take reasonable care may lead to liability.
Given that negligence is about careless acts or omissions, it is far and away the most commonly-sued for tort. We can almost always see examples of negligence claims throughout the news:
In each of these examples, there is an allegation of carelessness. It’s easy to see how there would be tensions in ensuring that negligence is not too easy nor too difficult of a standard to prove liability.
Legal Test for Negligence
In order to establish liability for negligence, the following four elements must be proven:
- Duty of Care – the defendant owed the plaintiff a duty to take reasonable care to avoid causing foreseeable harm.
- Breach of duty – the defendant breached their duty of care by acting or failing to act in a way that fell below the standard of care required in the circumstances.
- Causation – the defendant’s breach of duty caused the plaintiff’s injury or loss.
- Damages – the plaintiff’s suffered damage or loss
Dadswell v. Enterprise Auto & R.V. Ltd., 2020 BCCRT 428 at para. 20.
Another consideration will be whether the defendant can rely on any defences to completely remove or otherwise reduce its liability.
Each of the components in the negligence test are complex and merit a more fulsome explanation for when they will be established.
Step 1 – The Duty of Care
The ultimate question with the duty of care step is whether the defendant was under a legal obligation to act with care towards the plaintiff.
Where there is a duty of care imposed, it requires the defendant to take reasonable care to avoid causing harm to others. This means that individuals must act in a way that a reasonable person would in the same or similar circumstances. For example, a doctor owes a duty of care to their patient, and a driver owes a duty of care to other drivers and pedestrians on the road.
If there is not a duty of care established then, even if a plaintiff was injured, the defendant did not owe a legal duty to protect them in the first place. Even negligence has boundaries which state that individuals do not have to act with care towards every single other individual – to require that would be extremely broad. As such, the law recognizes that we cannot prevent all possible harms to everyone, so we must focus our responsibility on those who are most likely to be harmed.
How then does one determine whether you owe a legal duty of care to another? The original common law answer was found in the the seminal case of Donoghue v Stevenson [1932] AC 562 which established that the duty of care was found using the “neighbour principle”.
“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 reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.”
Donoghue v Stevenson, [1932] AC 562 at 580
The neighbour principle established a broad test for establishing a duty of care. It required individuals to consider the reasonably foreseeable consequences of their actions or omissions on others. It shifted the focus from specific categories of relationships to a more general principle of reasonable foreseeability and proximity.
Foundational Law – Donoghue v Stevenson, [1932] AC 562
Mrs. Donoghue consumed a bottle of ginger beer, which was manufactured by Stevenson. Unfortunately, the bottle contained a decomposed snail, and as a result, Mrs. Donoghue fell ill. She sued Stevenson for negligence, arguing that the company had a duty of care towards her as a consumer.
Lord Atkin, one of the judges in the House of Lords, introduced the concept of the “neighbour principle” in his judgment. He stated that a person should take reasonable care to avoid acts or omissions that could reasonably be foreseen as likely to cause harm to their “neighbours.”
Lord Atkin further explained that “neighbour” should not be confined to individuals in close physical proximity. Instead, it should encompass anyone who could be reasonably foreseen as being affected by one’s actions or omissions. This principle emphasized the idea of proximity, both physical and relational, in determining whether a duty of care existed in a particular situation.
The court held that Stevenson, as the manufacturer of the ginger beer, owed a duty of care to Mrs. Donoghue. They concluded that the manufacturer had a responsibility to ensure that the product they sold was safe for consumption and free from any potential hazards that could cause harm to consumers.
In modern law, the discussion of the neighbour principle has largely been done away with and what remains is a discussion of proximity and reasonable foreseeability.
Proximity refers to the relationship between the parties involved, which can include physical, social, or commercial proximity. This relationship must be such that it creates a reasonable expectation that care will be taken to avoid harm. For example, a doctor owes a duty of care to their patient due to the professional relationship between them.
Reasonable foreseeability, on the other hand, refers to whether harm was a foreseeable consequence of the defendant’s actions. It involves asking whether a reasonable person in the position of the defendant would have foreseen that their actions could cause harm to another person. For example, a driver who is texting while driving should be able to foresee that their actions could lead to an accident and cause harm to other drivers on the road. However, it may not have been reasonable for someone who sends a text message to a friend to foresee that the friend would read it and, while doing so, would crash through an intersection and injure a pedestrian. But what about if the sender of the text knows that their driving friend habitually drives while trying to look at their phone and read text messages? Is there not an argument that the sender could reasonably foresee a loss from their text message?
The difference between proximity and reasonable foreseeability lies in the level of connection required to establish a duty of care. Proximity focuses on the relationship between the parties, while reasonable foreseeability focuses on the potential for harm to occur. Proximity is often easier to establish when the relationship between the parties is clear, while reasonable foreseeability may require more analysis of the specific circumstances of the case.
Ultimately, the duty of care can be challenging as there are few clear answers in the application of reasonable foreseeability. However, the court always strives to navigate these ambiguous questions by reference back to the reasonable person in the hopes of finding objective answers.
Step 2 – Breach of the Standard of Care
The second element for negligence is that the defendant breached the standard of care. In order to prove a breach of the standard of care has occurred, it must be shown that there is a reasonable level of care (the standard) and that the defendant failed to meet that standard (the breach).
The standard of care refers to the level of care that a reasonable person is expected to provide in a given situation. It is a vital part of a negligence because it establishes a benchmark against which the defendant’s conduct is evaluated. If the defendant’s actions fell below the standard of care, then they may be held liable for damages resulting from their negligence. On the other hand, if their conduct met or exceeded the standard of care, they would not be held liable even if the plaintiff was injured.
Ultimately, the standard of care only gives us our comparison, the breach of the standard of care is what establishes liability. The breach arises when the defendant has fallen below the reasonable care threshold of their comparative reasonable person. For example, consider a case in which a driver hits a pedestrian while texting on their phone. If a reasonable person would have concluded that it was unsafe to text while driving (very likely), then the driver would be found to have breached the standard of care.
Foundational Law – Jacobsen v. Nike Canada Ltd., 1996 CanLII 3429
In September 1991, Michael Jacobsen, a 19-year-old warehouseman at Nike Canada Ltd., worked a 16-hour shift during which he and his co-workers consumed substantial amounts of beer provided by his employer, Nike. After work, he went to two clubs and continued drinking beer with a co-worker. The following morning, while driving home from his shift, Jacobsen veered off the highway, resulting in a car accident that left him quadriplegic.
Jacobsen sought damages from Nike, claiming that the company had a duty of care towards him and that this duty was breached when they supplied him with alcohol during working hours and failed to prevent him from driving.
Nike acknowledged that it owed a duty of care to Jacobsen but denied breaching that duty by not taking action to prevent him from driving. They argued that, based on the circumstances, they neither knew nor had reason to believe that Jacobsen was impaired when he left work.
The court determined that Nike failed to live up to the standard of a reasonable employer. Nike provided alcohol in the workplace and did not monitor the plaintiff’s alcohol consumption and took no measures to ensure that he did not drive while impaired. This was a breach of the standard of care. Further, Nike required its employees to bring their cars to work, being fully aware that they would be driving home. Essentially, Nike made drinking and driving a part of the working conditions on that particular day. The company effectively encouraged the crew to consume alcohol without any limitations by freely providing large quantities of beer at the worksite.
Nike’s duty for his Jacobsen’s safety demanded that they avoid introducing conditions in the workplace that could reasonably put him at risk. Accordingly, Nike breached its standard of care and Jacobsen was awarded damages in the amount of $2,719,213.48.
Step 3 – Causation
The third element of negligence, causation, refers to the relationship between the defendant’s actions or inactions and the plaintiff’s loss.
To establish causation, the plaintiff must prove that the defendant’s conduct was a cause in fact of their injuries, and that the harm suffered was a foreseeable consequence of the defendant’s conduct.
There are two types of causation in negligence law: actual cause and proximate cause.
For example, if a person is injured in a car accident and sues the driver of the other car for damages, the plaintiff must prove that the driver’s actions were the cause of the plaintiff’s injuries. The plaintiff must show that “but for” the driver’s actions, the accident and the plaintiff’s injuries would not have occurred. If it can be shown that the accident would have happened even if the driver had not been involved, then the driver’s actions are not considered to be the cause of the plaintiff’s injuries.
On the other hand, proximate cause, focuses on the foreseeability of harm caused by the defendant’s conduct. Proximate cause asks whether the defendant’s conduct was a foreseeable cause of the plaintiff’s harm, or whether there were intervening factors that broke the causal chain between the defendant’s conduct and the plaintiff’s injuries.
For example, suppose that a driver negligently runs a red light and collides with another vehicle, causing the driver to sustain a broken arm. In this scenario, the driver’s negligent conduct is the actual cause of the plaintiff’s injuries because the accident would not have occurred but for the driver’s failure to stop at the red light. Proximate cause is also established because it was foreseeable that running a red light could cause an accident resulting in bodily harm. On other hand, what if a driver runs a red light and collides with another car, injuring the driver, but that driver is then struck by lightning. The driver who ran the red light may not be held liable for the damages as the lightning strike was not a reasonably foreseeable event; the driver was not the proximate cause of the plaintiff’s injuries.
Without causation, the plaintiff cannot establish liability, and the defendant cannot be held responsible for the plaintiff’s harm. Therefore, causation plays an essential role in determining fault and awarding damages in negligence cases.
Step 4 – Damages
The final element in negligence is damages. Damages refer to the actual harm or loss suffered by the plaintiff as a result of the defendant’s breach of duty. It can include physical injuries, emotional distress, financial losses, and any other negative consequences caused by the defendant’s actions.
To succeed in a negligence claim, the plaintiff must demonstrate that they have suffered compensable damages.
Specific Forms of Negligence
Professional Negligence
What happens when the negligent act is committed by someone with some form of professional experience or expertise? For example, plumbers, accountants, carpenters, lawyers, doctors, etc? How does the law adjust to this circumstance?
Professional negligence cases involve a careless act committed by an individual with specialized skill or expertise. Professional negligence can occur in a wide range of professions, including the legal, medical, accounting, architectural, or engineering professions.
In order for a claim of professional negligence to be successful, the plaintiff must still show that the professional owed them a duty of care, that the standard of care was breached, and that the breach caused them to suffer some form of loss or damage. In many cases, it is not difficult to prove a duty of care is owed and the true debate falls to whether or not the professional breached the standard of care.
Notably, for professional negligence cases, the defendant professional is compared to that of a reasonably competent professional in the same field. The comparison drawn is between the conduct of the alleged negligent party and what a reasonable professional in the same field would have done in similar circumstances.
For example, imagine a case of medical malpractice. A doctor may be accused of breaching the standard of care by failing to diagnose or treat a patient’s condition appropriately. In such a case, the standard of care is determined by looking at what a reasonable doctor (not person) with similar training and experience would have done under the same circumstances.
Product’s Liability
Products liability is a body of law that imposes liability on manufacturers, distributors, and sellers of products for injuries or damages caused by defects in the products that they sell/make. This law allows an individual who is injured by a defective product to bring a legal claim for damages against the party responsible for the defect.
Products liability in Canada differs dramatically from that in the United States. The main difference lies in the legal standards used to establish a product defect and the level of liability required to hold manufacturers and sellers responsible for injuries resulting from the use of their products.
In the United States, products liability law is based on the doctrine of strict liability, which means that manufacturers are held strictly liable for any injuries caused by their products, regardless of whether they were negligent or not. This means that the plaintiff does not have to prove that the manufacturer was negligent or intended to harm them, but only that the product was defective and caused the injury. This legal standard places a heavy burden on manufacturers to ensure that their products are safe and free from defects.
On the other hand, in Canada, products liability law is based on the doctrine of negligence. Manufacturers and sellers are liable for injuries caused by their products only if they were negligent in designing, manufacturing, or selling the product. This means that the plaintiff must prove that the manufacturer or seller was negligent in some way and that their negligence caused the injury.
On the Canadian front, there are several different types of defects that can give rise to a products liability claim, including design defects, manufacturing defects, and warning defects. Design defects occur when the product is inherently dangerous or unsafe because of the way it was designed. Manufacturing defects occur when the product is safe when it is designed, but something goes wrong during the manufacturing process that makes it unsafe. Warning defects occur when the product is safe when used as intended, but the manufacturer fails to warn the user of potential dangers associated with the product.
Thin Skull Rule
What happens if the person you injure has an unexpected reaction? For example, I injure the arm of a pedestrian and they then contract an infection while being treated at the hospital. Should I be responsible for the losses arising from the infection? The thin skull rule is a legal principle that imposes liability on a defendant for any unusual or abnormal vulnerabilities that the plaintiff had at the time of the injury, even if that unusual condition or reaction was not foreseeable.
A defendant must take their victim as they find them, meaning that the defendant is responsible for any additional harm caused to the plaintiff due to the plaintiff’s pre-existing vulnerabilities. If a person with a thin skull is struck on the head and suffers a brain injury, the defendant may be held liable for any additional harm that was caused by the plaintiff’s thin skull, even if the defendant did not know about the plaintiff’s condition at the time of the injury. The rule is intended to protect plaintiffs who are more vulnerable or susceptible to harm due to factors beyond their control.
Foundational Law – Smith v Leech Brain & Co [1962] 2 QB 405
The case involved Smith, a worker employed by Leech Brain & Co., who suffered a burn on his lip while working with molten metal. Smith had a pre-existing condition known as “keratoacanthoma,” which is a benign skin condition. As a result of the burn, the condition worsened and developed into a malignant carcinoma, a form of skin cancer. Smith argued that his employer was responsible for the development of the cancer because the burn triggered its progression.
The central issue in the case was whether Leech Brain & Co. should be held liable for the full extent of Smith’s injury, including the unforeseeable consequences resulting from his pre-existing condition.
The court upheld the application of the “thin skull” rule in this case. It found that Leech Brain & Co. was liable for the entire extent of Smith’s injury, including the development of cancer. The court reasoned that the burn was a direct consequence of the defendant’s negligence, and the unforeseeable progression of the condition did not absolve them of liability.
The case stands as a clear example of the “thin skull” rule’s and that defendant’s will be held to take their victims as they are, including their pre-existing conditions.
Defences to Negligence
As with the intentional torts, a defendant to a negligence action has a variety of defences which they can use to eliminate or reduce their liability.
Some of the specific defenses to a negligence claim are:
- Contributory Negligence – means the plaintiff’s own negligence contributed to the harm that they suffered. If the plaintiff was also negligent, the defendant may be able to reduce or eliminate their liability. For example, if a plaintiff pedestrian was distracted by her phone and not paying attention to her surroundings, the defendant cyclist could argue that her actions contributed to the accident. In this case, the plaintiff’s damages would be reduced by the percentage of her fault.
- Assumption of Risk – this defense is available when the plaintiff willingly and voluntarily assumed the risk of harm by engaging in a dangerous activity. For example, what if the plaintiff pedestrian was volunteering in a cycling event and had signed a waiver form indicating that they were not permitted to walk through the course and assumed all risks that they might be injured if they did so. The voluntary assumption of such risks could mean that the cyclist who strikes the pedestrian is completely absolved of liability.
- Statutory Immunity – certain defendants may be immune from liability because of a statutory provision that grants such immunity. For example, if the cyclist was a police officer who was responding to an emergency and struck the pedestrian, the defendant may be immune from liability.
- Illegality – “ex turpi causa non oritur actio” is a Latin legal maxim that translates to “from a dishonorable cause an action does not arise.” It is a principle that states a person cannot bring a legal action to claim a remedy or compensation if their claim arises from an illegal or immoral act that they themselves were involved in. The principle is rooted in the idea that the law should not aid someone who seeks to benefit from their own wrongdoing. For example, if a person gets injured while attempting to rob someone’s house, they would not be able to sue the homeowner for negligence. The principle would apply because the person’s injury resulted from their own illegal act. Similarly, if a person is injured while participating in an illegal street race, they would not be able to hold other participants or organizers liable for any resulting harm.
- Good Samaritan Laws – if the defendant was acting as a Good Samaritan, providing medical assistance or help in an emergency, they may be protected from liability by Good Samaritan laws. For example, if the cyclist was attempting to perform first aid on the pedestrian, but accidentally caused an additional cut. As a Good Samaritan, the cyclist should be immune from liability.
Occupiers’ Liability
One of the long-standing traditions in law is respect for land-owners and their blanket discretion to do as they please on their land. This respect has often translated into a restricted immunity against claims brought by the visitors to that land. Over time however, this immunity has been chipped away at such that visitors to a property can seek compensation for injuries they suffer.
Occupiers’ liability refers to the legal responsibility that an occupier of a property (such as a business owner, homeowner, or landlord) has to ensure that their property is safe for visitors and other lawful occupants. Occupiers’ liability is based on the premise that the occupier of a property has a duty of care towards anyone who is on the property, whether they are invited guests, paying customers, or members of the public.
What can often be challenging is discerning the precise scope of the legal duty that is owed to visitors. This question can be examined through two evolutions in law: the traditional common law rules versus the statutory rules.
Whether you are bound by the traditional common rules, negligence, or statute depends on where the incident occurred. Some provinces/territories have passed occupiers liability statutes which would apply to the injury, while other provinces/territories have retained the traditional common law principles.
Therefore, there are numerous types of duties of care which may owed by an occupier and that duty depends on where the occupier is. An organization called OHS Insider* has created a handy reference chart to understand which type of law applies in which province and territory:
Traditional Common Law of Occupiers’ Liability
“The Canadian common law of occupiers’ liability, which is concerned with tort responsibility of those who control land to those who enter onto their land, is a mess. In this area, perhaps more than in any other part of tort law, rigid rules and formal categories have spawned confusion and injustice.”
Justice Linden, Canadian Tort Law (4th ed., 1988) at page 599
As the above quote from Justice Linden suggests, the common law on occupiers’ liability was largely confused on the precise duty owed by an occupier to a visitor; that answer was a “mess”.
The traditional common determined the duty of care depending on the particular reason for the visitor’s visit. Once the precise reason for the visit was determined, the traditional common law would then assign a particular duty that was required to be met by the occupier. If the occupier failed to live up to that duty then they would be responsible for any damages which flowed from that failure.
While the traditional common law still required that an occupier act with a certain duty of care to their visitors, the law varied on what that duty should look like. By examining a visitor’s purpose of visit to determine the duty owed, there emerged numerous different duties of care that could be applied to an occupier.
- Invitee – An invitee is a person who is invited onto the property for the occupier’s financial benefit (e.g. a customer at a retail store). The occupier has a duty to warn of any unusual dangers of which the occupier knew, or ought to have known about.
- Licensee – A person who is allowed to enter the property with the occupier’s permission for their own benefit (e.g. a social guest). The duty owned by an occupier to a licensee is only to protect the licensee against hidden dangers of which the occupier is aware.
- Trespasser – A person who enters the property without the occupier’s permission (i.e. a burglar). The occupier owes a duty to not cause injury to the trespasser intentionally or recklessly.
Over time, a fourth classification of visitor was developed: the contractual entrant. Contractual entrants enter the land through a contract and therefore, are distinct from invitees. The duty owed to contractual entrants was to take due care that the premises are reasonably safe and act with reasonable care. One of the unique features of this category was that the occupier was required to supervise the activities conducted on the premises to ensure safety of the visitors.
As you can see, applying potentially, four separate standards of care is complex and cumbersome. Accordingly, many provinces have seen fit to statutorily override the traditional common law classifications.
Statutory Rules of Occupiers’ Liability
As mentioned above, many provinces have chosen to do away with the confusion and rigidity arises from the traditional common law categories. In so doing, they have brought well-needed clarity to occupiers and visitors about when liability will be established.
“At common law, persons entering an occupier’s premises were traditionally defined as invitees, licensees or trespassers, and the duty of care owed by the occupier to such persons was determined on this basis. [However] the legislature enacted the Occupiers’ Liability Act … with the intention of replacing, refining and harmonizing the duty of care owed by occupiers to visitors on their premises.”
Schneider v. St. Clair Region Conservation Authority,
2009 ONCA 640 at para. 22.
While this text cannot canvass all of the provincial occupiers’ liability statutes, attention is paid to the British Columbia version. It should be noted that certain provisions of the BC statute (including, the duty of care) are similar as to provisions in other provincial occupiers legislation.
British Columbia Occupiers Liability Act, R.S.B.C. 1996, c. 337
Broadly speaking, the BC Occupiers Liability Act (OLA) codifies the legal duties and responsibilities of “occupiers” with respect to the safety of people who are on their “premises”.
The OLA begins by defining an “occupier” and “premises” in a broad and liberal sense:
“occupier” means a person who
(a) is in physical possession of premises, or
(b) has responsibility for, and control over, the condition of premises, the activities conducted on those premises and the persons allowed to enter those premises,
and, for this Act, there may be more than one occupier of the same premises;“premises” includes
(a) land and structures or either of them, excepting portable structures and equipment other than those described in paragraph (c),
(b) ships and vessels,
(c) trailers and portable structures designed or used for a residence, business or shelter, and
(d) railway locomotives, railway cars, vehicles and aircraft while not in operation;
Based on this definition, liability can extend to individuals owning homes, renting units, controlling property or undertaking construction and substantial renovations.
Just because someone constitutes an occupier of premises does not mean they will be liable for injuries suffered by visitors; that answer is based on whether the occupier failed to meet the statutory duty owed.
The major thrust of the legal duty owed by occupiers is found in section 3(1) of the OLA which states:
An occupier of premises owes a duty to take that care that in all the circumstances of the case is reasonable to see that a person, and the person’s property, on the premises, and property on the premises of a person, whether or not that person personally enters on the premises, will be reasonably safe in using the premises.
Under section 3(1), an occupier of a property has a duty to take “reasonable care” to ensure the safety of people who are on the property. This duty of reasonable care applies to all individuals who are on the premises, whether they are invited guests, customers, or trespassers (again, the common law categories were expressly done away with). The duty of care also applies to all aspects of the premises, including the condition of the property itself, as well as any activities or hazards on the property that could potentially cause harm.
Given that the threshold is one of “reasonable care”, whether or not a breach has occurred can be very case-by-case specific. Generally though, in order to fulfill this duty of care, an occupier must take reasonable steps to prevent or correct any hazards on the premises. This may include regular inspections of the property, providing appropriate warnings or safety measures, and ensuring that any dangerous conditions are promptly addressed.
The OLA also sets out a number of defenses that an occupier may raise if they are sued for failing to meet their duty of care. These defenses include the defense of voluntary assumption of risk, where the injured person knew of the danger and chose to assume the risk of injury anyway. This specific defense is found in section 3(3) and section 3(3.1) of the statute which states:
3(3) … an occupier has no duty of care to a person in respect of risks willingly assumed by that person other than a duty not to
(a) create a danger with intent to do harm to the person or damage to the person’s property, or
(b) act with reckless disregard to the safety of the person or the integrity of the person’s property.”3(3.1) A person who is trespassing on premises while committing, or with the intention of committing, a criminal act is deemed to have willingly assumed all risks …
Under 3(3) no duty of care would be owed where the injured visitor voluntarily assumed the risks of injury. For example, if a person visits a resort in British Columbia and decides to participate in out of bounds skiing or snowboarding, they may be found to have voluntarily assumed the risks associated with these activities. Skiing and snowboarding are known to be inherently risky activities that can result in injuries.
As to section 3(3.1), it operates to alleviate concerns that an occupier could somehow owe damages to an individual committing a criminal on the occupiers’ premises. According to the provision, a person who unlawfully enters a property with the intention of committing a crime is considered to have voluntarily accepted all associated risks. For instance, if someone breaks into a building to steal equipment and falls from a height while trying to escape, they assume liability for any injuries sustained from the fall due to their illegal actions.
Ultimately, even though an individual may be injured, it does not always mean the occupier breached its standard of care. One such example, is Slater v. Courtenay (City), 2021 BCSC 1678 discussed below.
Foundational Law – Slater v. Courtenay (City), 2021 BCSC 1678
The plaintiff, Slater, was involved in an accident which resulted in serious injury to his finger.
One evening, Slater consumed several drinks at a bar. After leaving the bar, he walked towards a set of stairs leading to a parking lot; the stairs had a metal railing on both sides which Slater decided he wanted to try to slide down:
As Slater slid down the railing, he felt a sudden tug and experienced instant pain. Upon reaching the bottom, he discovered that his finger was missing. He was promptly taken to the hospital, where it was determined that his index finger had been amputated just above the first knuckle and it could not be re-attached.
In determining if the City of Courtenay (as the occupier) was liable, the court affirmed the duty owed under the OLA: “to take that care that is reasonable in all of the circumstances of the case to see that a person on the premises will be reasonably safe in using the premises”.
The court ruled that the handrail was safe if used as intended, as a support for people walking up and down the stairs. It was unreasonable to expect the City to have foreseen abnormal use of the railing, such as someone sliding down the railing and gripping the handrail in a manner that would lead to injury. Holding the defendant accountable for such unforeseen actions would require a standard of perfection, which is not legally required. Ultimately, the City did not breach its duty under the OLA and Slater’s claim was dismissed.
The Rule in Rylands v. Fletcher
While the law of negligence and occupiers liability rely on an assertion of carelessness, strict liability can be imposed even where a loss does not carelessly arise or is intentional. Instead, strict liability applies when an activity simply causes a loss.
Typical strict liability situations involve ultra-hazardous activities, where the risk of harm is high and the activity is considered particularly dangerous. For example, activities such as handling explosives, operating a nuclear power plant, or owning a wild animal could all be instances where strict liability may apply. The idea is that if an individual wants to use their property in a dangerous way, they accept it may cause harm.
The origins of strict liability in tort are found in the case of Rylands v. Fletcher, (1868) LR 3 HL 330. The case involved a mill owner, Rylands, who built a reservoir on his property to store water for his mill. The reservoir was built in such a way that it was not watertight, and water leaked out and flooded a coal mine owned by Fletcher, causing damage. Fletcher sued Rylands for the damages.
In the case, the English court held that Rylands was strictly liable for the damages caused by the leak, even though he had not intended for the leak to occur and had taken precautions to prevent it. The court reasoned that Rylands had brought something onto his property that was likely to be dangerous if not properly contained, and that he was therefore responsible for any damages that resulted from the escape of that dangerous thing.
Legal Test for Rylands v. Fletcher
To be successful in suing in Rylands v. Fletcher, the plaintiff must establish the following:
- the non-natural use of the land by the defendant, and
- an escape from the land of something likely to do mischief
- the plaintiff suffered damage as a direct result of the escape.
Smith v. Inco, 2010 ONSC 3790 at para. 45.
The rule in “Rylands v Fletcher” has since been adopted by Canadian courts and allows for damages to be awarded even absent intent or negligence because of a dangerous thing that the tortfeasor brought onto their property.
