What happens to people who are injured through no fault of their own: a woman who breaks her arm because a faulty binding on her ski comes off during a downhill race or a child who suffers brain damage after being prescribed the wrong medication?
People usually assume they will be able to sue and get compensation for their injuries, loss of wages, or damage to their property. Damage to property or a personal injury caused by another person is a civil wrong called a tort. If the injury or damage was unintentional, then the wrong is called an unintentional tort.
The most common kind of unintentional tort is negligence. You are negligent if you unintentionally cause injury to someone in a situation where you should have known your action could cause harm.
In order for a defendant to be found negligent, the plaintiff must prove three factors.
Children can be held responsible for damage they cause, but the court recognizes that children may not have the experience and wisdom to foresee how something they do could cause injury. Therefore the courts place a different standard of care on a child. If a child does something that injures someone, the courts will consider the childs age, life experience, and what a child of a similar age would have done under similar circumstances. Children under the age of six are rarely found liable for their actions.
Parents are not automatically liable for damages caused by their children, but they can be held liable if they fail to train their children or properly supervise their activities.
Special Types of Liability Under the law of negligence there are several special types of liability and some groups are held to a higher standard of care than the average person. For example, consumers can sue a manufacturer of a product if the product is faulty or does not meet a required standard. The area of law that deals with negligence on the part of manufacturers is called product liability. People who own or occupy property have duty to maintain their property so that no one entering the property will be injured. This legal responsibility is called occupiers liability. Property owners must take particular care to protect children who may be enticed onto their property by an item such as a swimming pool. Items that might entice a child to enter someones property are known as allurements.
Hosts are people who serve alcohol to their guests and commercial hosts are people who serve alcohol to patrons in a bar or restaurant. Commercial hosts have a statutory duty of care to their patrons and to anyone who may be injured by their patrons negligent driving. Sometimes the courts will find a person liable for damages even though that person did not cause the plaintiffs injuries. This kind of liability is known as vicarious liability and it usually applies in the workplace where employers can be held responsible for the actions of their employees. Strict liability is a special kind of liability that applies in situations where an activity is so dangerous that the defendant is automatically liable in the case of injury. In common law, strict liability applies in cases involving leaking toxic waste or harmful fumes or fires. Today strict liability can be built into specific legislation such as environmental protection acts.
Defences to Negligence If you are sued for negligence, in your defence you can provide evidence to show that you did not owe a duty of care to the plaintiff, that you met the standard of care, or that your actions did not cause the damage. In addition, you may be able to prove that the plaintiff contributed to the cause of the injury. This defence is known as contributory negligence.
A defendant could also use the defence of voluntary assumption of risk, which means that the plaintiff knowingly and willingly assumed the potential risk normally associated with a particular activity. Contact sports such as boxing or football carry a certain level of risk. Three other defences include inevitable accident, Act of God, and explanation. An inevitable accident is caused by something the plaintiff had no control over and could not have prevented with any amount of reasonable care. An act of God is similar to an inevitable accident, but the event that caused the accident must be a natural event that is both extraordinary and unexpected, such as a violent windstorm or torrential rains. In some situations a defendant may argue that there is a valid explanation for an accident even though the defendant took every precaution.
People are expected to sue for damages within a reasonable time and every province has a law known as a statute of limitations, which specifies the period in which a person must sue for damages. The expiry of that period of time is another defence in tort law.