MGSC30H3 Study Guide - Replevin, Contributory Negligence, Res Ipsa Loquitur
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Chapter 5- Negligence and Unintentional Torts
Originally no consideration was given to the actual loss suffered by the plaintiff; the only concern of the
court was that a direct injury had occurred. In effect, the early courts imposed strict liability in dealing
with deliberate acts causing injury to others-no inquiry was made into the circumstances surrounding the
Today, any person or business who maintains a potentially dangerous thing on its land may be held
strictly liable for any damage it may occasion should it escape. This may be the case even if the owner
takes every precaution to protect others from injury, and if the escape of the dangerous thing is not due
to any act or omission on the landowner‟s part.
The liability at law of one person for the acts of another
At Common Law, an employer is usually considered to be vicariously liable for the torts of the firm‟s
employees, provided that the torts are committed by the employees in the course of the employer‟s
business. This is done in an attempt to get the finances that a plaintiff would need to cover the damages;
in most cases the employee would not be financially able to pay for the damages but the employer would.
This imposition of liability on persons not directly associated with a tort reflects a departure from the
tort theory that the individual who injures another should bear the loss.
Negligence and the Evolution of the Duty Not to Injure
Proximate Cause (Causation) and the Duty of Care
If it is proven that the defendant's actions had shown a careless disregard for others, then the defendants
conduct would be considered culpable. The plaintiff, however, was obliged to establish that the
defendant‟s careless behaviour were the proximate cause, or causation of the injury.
“The „But For‟ Test in Causation”
The question to ask is “but for” the defendants actions would the injury or damage not have occurred?
An affirmative answer to the question would identify the defendant‟s actions as a cause of the injury or
damage. Any break in the chain of events running from the defendant‟s act to the plaintiff‟s injury will
normally defeat the plaintiff‟s claim that the proximate cause was the defendant‟s act.
Duty of Care- The duty not to injure another person
As an element of tort liability, the duty not to injure must be more than simply a moral obligation-it must
be a duty that the person causing the injury owes to the injured party. This is sometimes referred to as
the right-duty relationship in tort law. Generally under this relationship, the duty not to injure must be
owed to the party who suffers the injury; in turn, the injured party must have a legal right that has been
violated by the act or omission of the other party.
The Concept of Foreseeability: The Reasonable Person
Reasonable Person- A standard of care used to measure acts of negligence
Presumed to possess normal intelligence and would exercise reasonable care in his or her actions toward
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Tort Liability is determined by asking the question: Would a reasonable person in similar circumstances
have foreseen the injury to the plaintiff as a consequence of his or her actions?
There is a great degree of subjectivity to the concept of the reasonable person and what they should be
able to foresee in activities that may cause harm to others. The subjectivity is left there to allow the
courts flexibility to handle cases in light of social changes.
It is to note that persons are found liable in negligence more often for their acts than for their omissions,
and rarely does a person have a legal duty to act positively. Rather, the duty is usually defined as a duty to
refrain from acting negatively.
Mens Rea- A guilty state of mind of intention to commit a crime or tort
In determination of liability, the essential ingredients are that:
1. The defendant owes the plaintiff a duty not to injure
2. The defendant‟s actions constitute a breach of that duty
3. The plaintiff suffers some injury as a direct result of the defendant‟s actions
Cases vary depending on the type of activity. In each case, the duty owed is a matter to be determined by
the courts, and is generally subject to the test of foreseeability, and the standard of the reasonable person
(standard of care).
Res Ipsa Loquitur
“The thing speaks for itself”
When this is claimed basically the courts will leave it up to the defendant to prove they were not
negligent in the act.
For this rule to apply, however, the cause of the injury must be something that is exclusively in the care
and control of the defendant at the time of injury. As well, the circumstances surround the accident must
be unusual in the sense that they constitute events that do not ordinarily occur if proper care has been
taken by the defendant. If the plaintiff can show this to the courts then it will be up to the defendant to
prove to the courts that there was no negligence.
The ascending order of importance, applies to (1) trespassers, (2) licensees and (3) invitees
Trespassers (Least Duty of Care)
By entering the land without permission they are to assume a certain level of risk to his or her person
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There have been recent developments in law where the owners of land of whom have “attractive
nuisances” have to assume some responsibility to protect the children in the community from being
harmed by them.
Other trespassers are to assume all risks when entering lands other than their own. The owner of the
land is obligated to take steps to warn a trespasser if there are traps or devices that are meant to injure
However if the owner of the land is aware that trespassers use the land and takes no steps to prohibit the
use of their land then they are risking the chance of being considered to have granted consent to the use.
Very broadly stated, it is a duty to treat the trespasser with ordinary humanity
The general test that the English courts set out are:
1. You must apply common sense. The more dangerous activity the more precaution that the
occupier has to take to make sure nobody is harmed by it
2. You must take into account the character of the intrusion of the trespasser (child or straying
3. You must also have regard of the nature of the place when the trespass occurs (electrical fencing
vs. private home)
4. Must take into account the knowledge that the defendant should have of the likelihood of
trespassers, the more likely the ore precautions that need to be set
A licensee would enter the land of another for their own benefit (ex. Person entering the lands of
another to launch their boat). It is the occupier‟s responsibility to protect the licensee from any dangers
of concealed dangers that they had knowledge of.
Invitees and Contractual Entrants
Invitee- A person who enters upon the lands of another by invitation, usually for the benefit of the
person in the possession of the land
Owed the highest duty of care of any of the three classes of person who enter on the lands of others
Contractual Entrant- A person who enters on the premises with a colour of right stemming from a
contract with the occupier that contemplates entry by the person
It is difficult to consider a construction company as anything other than an invitee, when that company
is obligated to enter upon lands to execute the contract demanded of it by the occupier.
The particular duty owed the invitee or contractual entrant is to warn or protect the person from any
usual dangers or hazards of which the occupier is aware or ought to be aware.