6. Tort and Negligence

• The basic concept of a tort is that the negligence of one or more individuals has lead to loss or damages of another. The court seeks to compensate those who suffer as a result. This is independent of any contracts that might exist.

• A tort-feasor is a defendant that has been found liable for losses.

• Jointly and severally liable: when negligence has been proven to cause damage it is often the result of more than one action, each party found negligent will be assigned responsibility and will be respectively responsible for a percentage of the compensation. If one of the parties is unable to pay a share, the other parties will be expected to cover the shortfall.

• The essential elements of a successful tort suit are,

a duty of care: “how would your neighbor expect you to act?”

breach of expectations

resulting damage

• a standard of care: “what would a reasonable person do?”: reasonable is an important concept in tort suits.

• Typical torts arise from,


negligent misconduct





• “cause of action”: somebody who can demonstrate a loss or damage. Somebody too remote will not be successful

• damages can be,

pecuniary: special damages that can be demonstrated as having a certain value

non-pecuniary: general damages that are hard to quantify

• Thin Skull: this principle suggests that if you are vulnerable, such as a weak heart, or thin skull, this cannot be used as a defense against liability.

• assumption of risk: in some cases some risks are inherent and obvious, and thus are consented to by any party willingly participating or entering. For example, somebody swimming in the ocean would assume some risk of being caught in currents.

• volenti: assumption of risk

• an engineer is liable for services, and may be responsible for more than his fee [Dominion Chain Co. Ltd. v. Eastern Construction Co. Ltd. et. al.]

• When a consumer buys a product there is a contractual obligation but if the product is used by another (not the buyer) the manufacturer owes the ultimate consumer a duty of care. [Donaghue v. Stevenson]

• Professionals can be liable for incorrect advice [Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd.], designs [Trident Construction Ltd. v. W.L. Wardrop and Assoc. et. al.] or reports [Brown & Huston Ltd. v. The Corporation of the City of York et. al.]. Also important is that a fee does not have to be paid for a professional to be liable. [Unit Farm Concrete Products Ltd. v. Eckerlea Acres Ltd. et. al.; Canama Contracting Ltd. v. Huffman et. al.]

• in some cases strict liability may make an employer/manufacturer/etc. liable regardless of negligence.

• vicarious liability: an employer is liable for the actions of employees. [Dutton v. Bognor Regis United Building Co. Ltd.]

• employees can also be held liable in tort suits. [Northwestern Mutual Insurance Co. vs. J.T. O’Bryan & Co.]

• More than one party can be found to be negligent and are thus called “concurrent tort-feasor”. [Corporation of District of Surrey v. Carrol-Hatch et. al.]

• product liability is determined by the courts,

if damage results when the product is used normally, and the manufacturer could have reasonably foreseen the results.

there are some statutes (e.g., The Sale of Goods Act in Ontario) that provide certain conditions and warranties for sold goods.

this area is a mixture of both tort and contract law [Donaghue v. Stevenson]

• Manufacturers are obliged to warn consumers when there are potentially dangerous uses of a product. [George Ho Lem v. Barotto Sports Ltd., and Ponsness-Warren Inc.]. This duty to warn is stricter than normal. [Lambert v. Lastoplex Chemicals Co. Limited et. al.]

• In tort cases, economic losses (e.g. lost business) can be counted as damages. [Rivtow Marine Ltd. v. Washington Iron Works et. al.] But, these tend to be limited economically [MacMillan Bloedel Ltd. v. Foundation Co.] and in delay. [Bethlehem Steel Corporation v. St. Lawrence Seaway Authority]

• The categories of economic loss may change in the future [Junior Books Ltd. v. Veitchi Co. Ltd.]

• There are time limitations between when a cause of action occurs and when the suit can be started (6 years in Ontario, 20 years if the contract is signed with a seal). If a suit is started after the limitation period it is called “statute barred”. This can be changed by a clause in a contract.

• There are also other limitation periods possible. For example, the Engineers Act of Ontario limits lawsuits to 12 months after the date the engineering work was done (or should have been). But the court may extend this in some situations. [Attorney-General of Canada v. Libling et. al.]. Note that this is different from general negligence where the limitation period is measured from the “cause of action” (e.g., when the house fell down, not when it was built). [Sparham Souter et. al. v. Town & Country Developments (Essex) Ltd. et. al.] Although the courts are still dealing with the ramifications of Sparham-Souter. [Robert Simpson Co. Ltd. v. Foundation Co.] [Viscount Machine and Tool Ltd. vs. Clarke] [Pirelli General Cable Works Ltd. vs. Oscar Faber and Partners] [City of Kamloops vs. Nielsen et. al.]

• The tort of defamation involves an untrue statement that damages a reputation. If it is written it is called libel, or if it is verbal it is called slander.

• Occupiers’ Liability: anybody occupying property is responsible for anybody coming onto the property. Guests and trespassers should be protected against dangers the occupier is aware of. Business guests generally receive a higher duty of care and the occupier is expected to safeguard them against dangers that should be reasonably recognized.

• The Tort of Nuisance: an occupant should be able to enjoy their land without interference. In some cases this will result in a lawsuit. [Newman et. al. v. Conair Aviation Ltd. et. al.] [Jackson et. al. v. Drury Construction Co. Ltd.]