{"id":95,"date":"2024-06-30T20:34:13","date_gmt":"2024-07-01T00:34:13","guid":{"rendered":"https:\/\/pressbooks.bccampus.ca\/businesslaw\/?post_type=chapter&p=95"},"modified":"2024-07-01T21:13:33","modified_gmt":"2024-07-02T01:13:33","slug":"tort-law-in-canada-part-ii-the-unintentional-torts","status":"publish","type":"chapter","link":"https:\/\/pressbooks.bccampus.ca\/businesslaw\/chapter\/tort-law-in-canada-part-ii-the-unintentional-torts\/","title":{"raw":"Tort Law in Canada Part II: The Unintentional Torts","rendered":"Tort Law in Canada Part II: The Unintentional Torts"},"content":{"raw":"
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Learning Objectives<\/p>\r\n\r\n<\/header>\r\n

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    \r\n \t
  1. Introduce the concept of unintentional torts.<\/li>\r\n \t
  2. Explain the concept of negligence, including the elements of duty of care, breach of the standard of care, and causation.<\/li>\r\n \t
  3. Understand the concept of occupiers liability and its application to property owners and occupiers.<\/li>\r\n \t
  4. Explain the concept of strict liability and its application to certain activities or products that impose liability regardless of fault or negligence.<\/li>\r\n \t
  5. Evaluate the defenses available in unintentional tort cases, including contributory negligence and assumption of risk.<\/li>\r\n<\/ol>\r\n<\/div>\r\n<\/div>\r\n

    The Unintentional Torts<\/h1>\r\nShould 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?\r\n\r\nImagine 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\u2019s carelessness in checking the text message while driving directly caused the accident and resulted in harm to the pedestrian.\r\n\r\n\"\"\r\n\r\nHowever, 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\u2019s injuries.\r\n\r\nWhile 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\u2019s legal liability. The sender likely did not have direct control over the driver\u2019s actions and did not force them to check the text message while driving.\r\nThese types of considerations (and interesting debates) are the heart of what is called: the unintentional torts.\r\n\r\nWhile 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.\r\n\r\nIn this chapter we will examine three unintentional torts: negligence, occupier\u2019s liability, and strict liability.\r\n

    The Law of Negligence<\/h1>\r\nThe 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.\r\n\r\nGiven 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:\r\n\r\n\"\"\r\n\r\n\"\"\r\n\r\nIn each of these examples, there is an allegation of carelessness. It\u2019s 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.\r\n
    \r\n

    Legal Test for Negligence<\/p>\r\n\r\n<\/header>\r\n

    \r\n\r\nIn order to establish liability for negligence, the following four elements must be proven:\r\n
      \r\n \t
    1. Duty of Care<\/strong> - the defendant owed the plaintiff a duty to take reasonable care to avoid causing foreseeable harm.<\/li>\r\n \t
    2. Breach of duty <\/strong>- 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.<\/li>\r\n \t
    3. Causation<\/strong> - the defendant\u2019s breach of duty caused the plaintiff\u2019s injury or loss.<\/li>\r\n \t
    4. Damages <\/strong>- the plaintiff's suffered damage or loss<\/li>\r\n<\/ol>\r\n

      Dadswell v. Enterprise Auto & R.V. Ltd.<\/em>, 2020 BCCRT 428 at para. 20.<\/p>\r\n\r\n<\/div>\r\n<\/div>\r\nAnother consideration will be whether the defendant can rely on any defences to completely remove or otherwise reduce its liability.\r\n\r\nEach of the components in the negligence test are complex and merit a more fulsome explanation for when they will be established.\r\n

      Step 1 - The Duty of Care<\/span><\/h2>\r\nThe ultimate question with the duty of care step is whether the defendant was under a legal obligation to act with care towards the plaintiff.\r\n\r\nWhere 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.\r\n\r\nIf 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 \u2013 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.\r\n\r\nHow 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 \u201cneighbour principle\u201d.\r\n
      \r\n\r\n\u201cWho, then, in law is my neighbour? The answer seems to be \u2013 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.\u201d\r\n

      Donoghue v Stevenson,<\/em> [1932] AC 562 at 580<\/p>\r\n\r\n<\/div>\r\nThe 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.\r\n

      \r\n

      Foundational Law - Donoghue v Stevenson, [1932] AC 562<\/p>\r\n\r\n<\/header>\r\n

      \r\n\r\nMrs. 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.\r\n\r\nLord Atkin, one of the judges in the House of Lords, introduced the concept of the \u201cneighbour principle\u201d 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 \u201cneighbours.\u201d\r\n\r\nLord Atkin further explained that \u201cneighbour\u201d 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\u2019s 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.\r\n\r\nThe 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.\r\n\r\n<\/div>\r\n<\/div>\r\nIn 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.\r\n\r\nProximity 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.\r\n\r\nReasonable foreseeability, on the other hand, refers to whether harm was a foreseeable consequence of the defendant\u2019s 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?\r\n\r\nThe 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.\r\n\r\nUltimately, 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.\r\n

      Step 2 - Breach of the Standard of Care<\/span><\/h2>\r\nThe 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).\r\n\r\nThe 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\u2019s conduct is evaluated. If the defendant\u2019s 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.\r\n\r\nUltimately, 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.\r\n
      \r\n

      Foundational Law - Jacobsen v. Nike Canada Ltd., 1996 CanLII 3429<\/p>\r\n\r\n<\/header>\r\n

      \r\n\r\nIn 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.\r\n\r\nJacobsen 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.\r\n\r\nNike 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.\r\n\r\nThe 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\u2019s 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.\r\n\r\nNike\u2019s duty for his Jacobsen\u2019s 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.\r\n\r\n<\/div>\r\n<\/div>\r\n

      Step 3 - Causation<\/span><\/h2>\r\n
      \r\n\r\nThe third element of negligence, causation, refers to the relationship between the defendant\u2019s actions or inactions and the plaintiff\u2019s loss.\r\n\r\nTo establish causation, the plaintiff must prove that the defendant\u2019s conduct was a cause in fact of their injuries, and that the harm suffered was a foreseeable consequence of the defendant\u2019s conduct.\r\n\r\nThere are two types of causation in negligence law: actual cause and proximate cause.\r\n\r\nFor 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\u2019s actions were the cause of the plaintiff\u2019s injuries. The plaintiff must show that \u201cbut for\u201d the driver\u2019s actions, the accident and the plaintiff\u2019s 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\u2019s actions are not considered to be the cause of the plaintiff\u2019s injuries.\r\n\r\nOn the other hand, proximate cause, focuses on the foreseeability of harm caused by the defendant\u2019s conduct. Proximate cause asks whether the defendant\u2019s conduct was a foreseeable cause of the plaintiff\u2019s harm, or whether there were intervening factors that broke the causal chain between the defendant\u2019s conduct and the plaintiff\u2019s injuries.\r\n\r\nFor 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\u2019s negligent conduct is the actual cause of the plaintiff\u2019s injuries because the accident would not have occurred but for the driver\u2019s 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\u2019s injuries.\r\n\r\nWithout causation, the plaintiff cannot establish liability, and the defendant cannot be held responsible for the plaintiff\u2019s harm. Therefore, causation plays an essential role in determining fault and awarding damages in negligence cases.\r\n\r\n<\/div>\r\n
      \r\n
      Foundational Law -- Mustapha v. Culligan of Canada Ltd., 2008 SCC 27<\/div>\r\n<\/header>\r\n
      \r\n
      Mustapha sued Culligan, a water supplier, for psychiatric injury he claimed to have suffered after discovering dead flies in a bottle of water he received from the company. Mustapha became obsessed with the incident and developed a major depressive disorder, along with phobia and anxiety. The trial judge ruled in favor of Mustapha, awarding him damages totaling $341,774.58. However, the case was appealed and the issue before the SCC was whether Mustapha had established causation.<\/div>\r\n
      <\/div>\r\n
      According the SCC, the law distinguishes between psychological disturbance that qualifies as personal injury and mere psychological upset. Personal injury must be serious, prolonged, and surpass ordinary annoyances, anxieties, and fears. In Mustapha's case, the medical evidence actually supported that he suffered psychiatric illness which constituted personal injury.<\/div>\r\n
      <\/div>\r\n
      The next issue though was whether the defendant\u2019s breach of duty caused the Mustapha's damage or if it was too remote to warrant recovery. The principle of remoteness examines whether the harm is too unrelated to the wrongful conduct to hold the defendant liable. In order to establish that the damage suffered was not too remote, Mustapha needed to show that it was foreseeable for a person of ordinary fortitude to suffer serious injury from seeing the flies in the water bottle. However, the evidence presented only described Mustapha\u2019s individual and highly unusual reactions. There was no evidence that a person of ordinary fortitude would have suffered injury from the same situation.<\/div>\r\n
      <\/div>\r\n
      Based on these considerations, the SCC concluded that Mustapha\u2019s loss was too remote to be reasonably foreseen, and therefore he could not recover damages from Culligan.<\/div>\r\n<\/div>\r\n<\/div>\r\n

      Step 4 - Damages<\/span><\/h2>\r\nThe final element in negligence is damages. Damages refer to the actual harm or loss suffered by the plaintiff as a result of the defendant\u2019s breach of duty. It can include physical injuries, emotional distress, financial losses, and any other negative consequences caused by the defendant\u2019s actions.\r\n\r\nTo succeed in a negligence claim, the plaintiff must demonstrate that they have suffered compensable damages.\r\n

      Specific Forms of Negligence<\/h1>\r\n

      Professional Negligence<\/span><\/h2>\r\n
      \r\n\r\nWhat 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?\r\n\r\nProfessional 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.\r\n\r\nIn 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.\r\n\r\nNotably, 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.\r\n\r\nFor 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\u2019s 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.\r\n

      Product's Liability<\/span><\/h2>\r\nProducts 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.\r\n\r\nProducts 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.\r\n\r\nIn 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.\r\n\r\nOn 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.\r\n\r\nOn 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.\r\n

      Thin Skull Rule<\/span><\/h2>\r\n
      \r\n\r\nWhat 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.\r\n\r\nA 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\u2019s 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\u2019s thin skull, even if the defendant did not know about the plaintiff\u2019s 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.\r\n\r\n<\/div>\r\n<\/div>\r\n
      <\/div>\r\n
      \r\n
      \r\n

      Foundational Law - Smith v Leech Brain & Co [1962] 2 QB 405<\/p>\r\n\r\n<\/header>\r\n

      \r\n
      \r\n\r\nThe 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 \u201ckeratoacanthoma,\u201d 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.\r\n\r\nThe central issue in the case was whether Leech Brain & Co. should be held liable for the full extent of Smith\u2019s injury, including the unforeseeable consequences resulting from his pre-existing condition.\r\n\r\nThe court upheld the application of the \u201cthin skull\u201d rule in this case. It found that Leech Brain & Co. was liable for the entire extent of Smith\u2019s injury, including the development of cancer. The court reasoned that the burn was a direct consequence of the defendant\u2019s negligence, and the unforeseeable progression of the condition did not absolve them of liability.\r\n\r\nThe case stands as a clear example of the \u201cthin skull\u201d rule\u2019s and that defendant\u2019s will be held to take their victims as they are, including their pre-existing conditions.\r\n\r\n<\/div>\r\n<\/div>\r\n<\/div>\r\n

      Defences to Negligence<\/h1>\r\nAs 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.\r\n\r\nSome of the specific defenses to a negligence claim are:\r\n