Negligence

• Negligence


  A careless act that causes harm to another
• Negligence


  • The most common and important area of tort law
  • Governs most activities of modern society and has expanded significantly in the past 30 years
• Negligence (in common, everyday speech)


  Inattention, the possibility of harm, or carelessness in a task
• Negligence (in legal terms)


  Has a more precise meaning
• Negligence


  • The action is unintentional
  • The action is unplanned
  • An injury results
• Anyone who carelessly injures a person or damages someone's property should compensate the victim
• Carelessness alone does not make someone liable for negligence
• Someone must actually be injured or have property damaged by the careless conduct
• Negligence


  • Car accidents
  • Injuries to consumers caused by defective products
  • Medical and/or legal malpractice
• Intentional Torts


  When a person deliberately causes harm or loss to another by assault and battery or false imprisonment
• Intentional Torts


  • Trespassing
  • Causing a nuisance
  • Defaming (damaging) a person's reputation
• The most important element of an intentional tort is intent
• Foreseeability (predictability)


  The act of doing something that may or may cause harm will be considered an intentional tort if it DOES cause harm
• Many acts do not result in torts as some interference with people's rights occurs on a daily basis
• Elements of Negligence


  • Duty of Care
  • Breach of Duty of Care
  • Actual Harm or Loss
• Duty of Care


  A specific legal obligation to not harm other people or their property
• In a negligence suit, the plaintiff must show that the defendant owed them a duty of care
• Breach of Duty of Care

  When the defendant fails to meet the expected standard of care of an ordinary or "reasonable" person
• Reasonable Person


  The standard used to determine if a person's conduct is negligent
• Standard of Care


  The level of care expected of a person in a special circumstance
• Foreseeability


  A reasonable person's ability to anticipate a specific result of an action
• Courts commonly ask whether a reasonable person in similar circumstances would have foreseen the injury to the victim as a result of their action
• Children under the age of 12 cannot be charged with a criminal offence under the Youth Criminal Justice Act, but there is no legislation regarding youth and torts
• Once it is established that the defendant has not met the required standard of care, the plaintiff must then prove the defendant's negligent conduct caused the plaintiff harm
• Causation


  When the defendant's action was a direct factor that led to the plaintiff's damages
• The "But-for" Test


  A technique used by courts to determine causation - if an accident would not have occurred "but-for" the defendant's negligence, this conduct is the cause of the loss
• In a negligence suit, the plaintiff must prove that real harm or an economic loss occurred because of the defendant's negligence
• The Steps in proving a Negligence Action

  1. Does the defendant owe the plaintiff a duty of care

  2. Did the defendant breach the standard of care

  3. Did the defendant's careless act cause the plaintiff's injury or loss

  4. Was there a direct connection between the defendant's action and the plaintiff's injury or loss? Was what happened foreseeable?

  5. Did the plaintiff suffer actual harm or loss?
• Burden of Proof


  In a civil trial, the burden of proof is on the plaintiff to prove all the required negligence elements
• Just as in a criminal trial, the defendant does not have to prove anything, but many do present evidence
• Proof


  Exists on a balance of probabilities - the plaintiff's version of the incident must be accepted as more likely than not to have happened in order to succeed