NEGLIGENCE AND UNINTENTIONAL TORTS
The Concept of Tort Liability
Early Concepts: Strict Liability is the responsibility for loss regardless of the circumstances.
Basic premise of tort liability: individuals and corporations living in a civilized society will not (should not) intentionally cause injury to
one another or other’s property.
Public policy: every person is entitled to protection of his or her person; if anyone should commit a deliberate act injuring someone or
his or her property, then the injured party is entitled to redress from the person causing the injury.
Compensation is given according to a fixed amount (based upon a prescribed schedule); no consideration of actual loss was given;
only concern was that the direct injury occurred.
These early courts imposed strict liability (no inquiry was made into the circumstances surrounding event).
Courts moved away from strict liability approach to torts and considered other factors too.
Some torts have remained subject to strict liability (ex. Person/business who keeps potentially dangerous thing [hazardous
chemicals, toxic contaminants, hazardous waste] on their land may be held strictly liable for damage that may occur, even if every
precaution to protect others from injury is done or the dangerous thing occurs not at fault of landowner) currently looking at issue
of dog attacks (even safe things fall within the law when they behave dangerously)
Anyone who accumulates anything non-natural on his land or uses it in a non-natural way that might injure his neighbour does so at
his peril, and if it should escape through no fault of his own, he should nevertheless be liable.
Vicarious Liability is the liability at law of one person for the acts of another.
Same principle applies when one person controls the activity of another to such an extent that the act of one may be attributed to the
Courts carry the liability for the tort back to the person who initiated the act, and in this manner impose liability on a person not
directly associated with the tortious act.
Common law: employer is considered vicariously liable for the torts of the firm’s employees, if it happens in the course of the
Reasoning: employees may not have financial means to compensate for damage they might cause, but employers would (insurance
Employer should have some responsibility for the loss as they are presumably directing/controlling the employee (assuming
committed during course of employer’s business)
All partners in a partnership are vicariously liable for the torts committed by the partner in the conduct of a partnership business.
(Also, Provincial statute law impose vicarious liability on owner of a motor vehicle, when driver of vehicle is negligent in its operation)
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. Also reflects a move from the former laissez-faire policy to a new social policy that recognizes
that some satisfactory method must exist for the distribution of what is essentially a social loss among those best able to bear it.
Modern concept of insurance: responsible for shift in tort liability and represents further extension of this philosophy.
Spreading of risk of loss to workers injured in employment-related accidents to all employers in an effort to reduce the burden that
would otherwise fall on the individual or the injured worker’s employer.
Negligence and the Evolution of the Duty not to Injure
Unintentional liability was developed to cover injuries suffered by persons who were not intentionally injured, but were injured by
actions of inactions of others.
Initially this was established for professions when careless conduct or performance of skill injured another; the skilled person had
failed to carry out the work in accordance with the level of skill that they professed to have.
This imposed a duty of care on persons with particular skills, the actions were not in negligence since the modern concept of duty
and negligence did not emerge till 19th century in tort law.
Eventually, preoccupation from courts was shifted from the defendant’s deliberate action to both inaction and action when the
intention to injure was not present; which broadened the scope of recovery to include not only deliberate acts that injure, but all acts
where the cause of injury could be directly attributed to the defendant.
The area of liability was enlarged as a response to the needs of society, since early torts were related to more violent era; not civil
societies, which brought new forms of injury.
The plaintiff, while no longer limited to cases of deliberate injury was obliged to establish a duty on the part of the defendant not to
injure, and also to satisfy the courts that the proximate cause of the injury was directly related to the breach of duty on the part of the
Proximate Cause (Causation) and the Duty of Care is the cause of injury directly related to an act of a defendant.
If evidence indicated that the defendant’s actions had shown a careless disregard for others, then the defendant’s conduct would be
The plaintiff was obliged to establish that the defendant’s careless acts were the proximate cause or causation of the injury.
The issue becomes the question of degree and value judgments.