Introduction to Torts and Negligence

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Introduction to Torts and Negligence

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TortsA tort is a "civil wrong." In other words, it's a private party injuringanother physically, financially or economically because of theirwrongful action."Crimes" are social wrongs that affect society. It's possible for the sameaction to be both a crime and a tort."Breach of Contract" happens when there is a contractual relationshipbetween parties. Torts don't require a contractual relationship.

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Intentional and Unintentional TortsTorts that are done intentionally. Assault, battery, stealing, trespass,etc. are all intentional acts.Negligence is failing to be careful and causing injury to others as aresult. This is an "unintentional tort."Even though someone was unintentionally hurt, there was still anelement of wrongdoing.

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Objective (reasonable person) andSubjective Tests

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The Reasonable PersonWe will spend a lot of time discussing what is "reasonable" or what a"reasonable person" would have done."Reasonable" has a specific legal meaning. The "Reasonable Person"test is what an impartial, unbiased, objective person of ordinaryintelligence would know or consider.This is also known as an "objective test."

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Subjective testA "subjective test" determines what the actual person involved did orknows given the circumstances. This is an uncommon test.For example - the law is not concerned with whether you personallythink it's safe to text and drive (subjective test). It's concerned withwhat you should know or do (objective test): would our reasonableperson of ordinary intelligence and caution think it's safe to text anddrive?

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ExampleLuke decides to disconnect from society. He goes out in the wildernessfor two months without telling anyone. While Luke is away, BC Hydro(the electric utility company in BC) sends a letter to Luke saying his billis overdue and he must pay soon or get his electricity disconnected.When Luke returns home, he finds his electricity disconnected. He latergoes to Small Claims Court over the re-connection fee and says that heshould not have to pay the fee because he was not aware of theoriginal warning letter BC Hydro sent.Explain what the outcome of the case would be if the court followed ana) subjective test and b) a reasonable person test.

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ExampleA "reasonable person" would know that they will receive mail regardingtheir utilities. Therefore, the judge makes Luke pay in the objective test.In the "subjective test", the judge will say that Luke did not in fact knowabout the disconnection fees, so shouldn't pay.In the majority of cases, we will use the objective test.

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Misfeasance vs. NonfeasanceA misfeasance is a positive act that causes harm to someone else(intentionally or not). Examples include:• A paramedic misapplying treatment.• An accountant making mistakes on someone's tax return.A nonfeasance is a failure to act entirely.• Failing to help someone bleeding at the side of the road.• Failing to call the police when you identify a drunk driver.

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Misfeasance vs. NonfeasanceIt is dramatically easier to find liability when someone engages in apositive wrongful act (a misfeasance).Courts value individual autonomy and hate forcing someone to take apositive action absent a good reason. Finding someone liable whenthey committed a nonfeasance requires establishing a legal relationshipbetween those two people. That relationship is called a "duty of care."

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NegligenceNegligence is an unintentional tort. Negligence occurs when you have alegal obligation to be careful to someone else, you weren't careful, andthis caused them to get hurt.The fundamental moral wrongdoing in negligence is the creation of adangerous situation or unnecessary risk. Examples:• Texting and driving• Not salting your sidewalk in front of your business

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Misfeasances and NonfeasancesRecall the default state of the law: you do not generally owe obligationsto strangers to act in their best interests. You're allowed to walk past adrowning person (assuming no relationship with them)Negligence is the law that says if you have a relationship (a "duty ofcare") with a person you must be careful towards them.Examples:• People driving cars owe an obligation to pedestrians.• Lifeguards owe an obligation to people swimming in their pool.

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Misfeasances and NonfeasancesThat duty of care is much easier to establish in the case of misfeasancesthan nonfeasances. It is easy to establish a relationship when anaccountant makes a mistake on your taxes or a doctor applies thewrong treatment. It is hard to establish a relationship when a teacherfails to report a school bully and the bully hurts someone else.

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Elements of Negligencea)A duty of carei)Reasonable foreseeabilityii)Proximityiii)Public policyb)Breach of the dutyReasonable person testc)Causation"But for" testd)DamagesActual damages

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Duty of CareA duty of care is a special relationship. It is the obligation to be carefulto someone else.You do not need to know the person, have any relationship, or knowthey even exist. But you still have an obligation towards them to becareful.Analyzing whether a duty of care exists can be difficult.

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Established Duty of CareA lot of court cases have already been decided about when arelationship exists. If previous courts have already established anobligation exists, you no longer need to do a "duty of care" analysis.Some duties of care are obvious. Examples include:• Elementary school teachers have a duty towards their students.• Manufacturers of a car have a duty towards car users.In this course we will focus on non-obvious duties of care.

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Donoghue v Stevenson, [1932] AC562This case was the foundational case establishing negligence law. It alsooriginally established the formulation of the duty of care, which is stillinfluential today.Donoghue's friend wanted to treat her, so they went to a cafe together. Atthe cafe the friend purchased a bottle of ginger beer. Donoghue drank thebottle only to find a decomposing snail near the bottom. She became ill.Donoghue couldn't sue in contract, and so negligence law was developed inresponse. Lord Atkin said the following about the duty of care:

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Donoghue v Stevenson562, [1932] AC"The rule that you are to love your neighbour becomes in law you mustnot injure your neighbour; and the lawyer’s question 'Who is myneighbour?' receives a restricted reply. You must take reasonable careto avoid acts or omissions, which you can reasonably foresee would belikely to injure your neighbour.""Who, then, in law, is my neighbour? The answer seems to be - personswho are so closely and directly affected by my act that I oughtreasonably to have them in contemplation as being so affected when Iam directing my mind to the acts or omissions which are called inquestion."

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A memorial to the case at the former site of the cafe.Lairich Righe "snail in the bottle" case, Wikimedia Commons, Accessed Jan 28, 2023,https://commons.wikimedia.org/wiki/File:The_%22snail_in_the_bottle%22_case_(geograph_3492515).jpg

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Duty of Care TestI.Is there reasonable foreseeability?II.Is there reasonable proximity?III.Is there a public policy reason not to create a duty of care?

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i. Reasonable ForeseeabilityReasonable Foreseeability Test:If it would be apparent to a reasonable person that the conduct waslikely to cause injury, a duty is owed.

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Bolton v Stone,[1951] AC 850People were playing cricket in a field. Only "6 times in the last 30 years"were balls able to escape the field because of the build of the field andfence.A ball left the field and hit Ms. Stone. She sued, stating (paraphrased)that because the ball had been known to go outside the field 6 times in30 years, that the risk was "reasonably foreseeable," and the battershould be liable in negligence.

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