The Burden of Proof

Law 12 Tort Law Ms. Ripley

Special Types of Negligence (All About Law, Gibson, pp.348-358)

Among negligence suits, the most common involve occupiers' liability, motor vehicle negligence, and professional negligence. Each is discussed in this section.

Occupiers' Liability

Occupiers' liability concerns responsibility toward people who enter a prop erty. An occupier is any person who has control and physical possession of a property and who owes a duty of care to make the property safe for people. The occupier, as a reasonable person, should foresee that some harm could come to persons entering the property. Occupiers are responsible for keeping their sidewalks and steps reasonably free of snow and ice. Store owners are responsible for keeping their floor reasonably dry and free of obstructions that could cause customers to slip or fall and injure themselves. Also, clear glass panels and doors should be clearly identified. To establish the standard of care and the occupier's liability, the common law established three classes of persons who could enter another's property: invitees, licensees, and trespassers.

Invitees An invitee-any person on the property for a purpose other than a social visit-is owed the highest standard of care. Invitees include students attending school, store customers, persons making deliveries, and service personnel coming to make repairs. This high standard of care is placed on invitees in the belief that an occupier and an invitee will likely do business, so that each may obtain some material benefit from their meeting.

Licensees

A licensee is a person who enters property with the implied permission of the occupier; for example, a friend who has been asked to dinner. A licensee is a guest at the occupier's premises and is usually there for a social, not a business, purpose. Since no economic benefit is expected to flow to either parry, a lesser standard of care is required than for invitees.

Trespassers

A trespasser is a person who enters property without permission or without a legal right to be there. This would include anyone from a burglar to a wandering child. Guests who overstay their welcome may also be trespassers. Occupiers cannot set traps or cause deliberate harm to trespassers. In fact, once occupiers are aware of a trespasser's presence, they must exercise a reasonable standard of care. Even for trespassers, occupiers owe a duty of common humanity to act with at least a minimal degree of respect for the safety of all others who come onto the property. ' Trespassing children are recognized as having special rights because of their age. A special duty is imposed on an occupier when the property includes play equipment, such as a swimming pool or a jungle gym. While alluring to children, such equipment may also pose dangers. What is considered an allurement varies from case to case. However, an occupier must be able to show that all reasonable precautions have been taken to prevent any accident that could reasonably have been foreseen as arising from a possible allurement. Taking reasonable precautions may help to reduce, but not eliminate, liability. Law 12 Tort Law Ms. Ripley

Legislators have accepted that many items are naturally attractive to children. As a result, there are laws requiring the owners of such allurements to take specific precautions to protect children. For instance, municipalities must erect fences of a certain height around swimming pools and construction sites, and other dangerous premises must be marked and barricaded.

Did You Know?

In Saskatchewan, farmers must clearly mark farm equipment left in fields over winter so that trespassing snowmobilers don't mistake any snow-covered equipment for a small hill.

Occupiers' Liability Acts

Sometimes it is difficult to decide if a person is an invitee or a licensee. For example, if Tom invites his business associate Serge to dinner, is Serge an invitee or a licensee? Since Tom and Serge might settle a business transaction during dinner, thus benefiting both economically, it might be argued that Serge is an invitee. On the other hand, Serge is coming to dinner at Tom's invitation, and the meal is a social occasion. Because of these difficulties, several provinces have passed Occupiers' Liability Acts that abolish the old common law and create new codes for all visitors. The legislation eliminates the difference between invitees and licensees and provides a common duty of care to all visitors, regardless of why they are there. Alberta was the first province to introduce such legislation in 1973. Since then, British Columbia, Ontario, Manitoba, Prince Edward Island, and Nova Scotia have passed similar legislation. The remaining provinces still follow the common law categories, but they are reviewing this issue.

Barnfield v. Westfair Foods Ltd. (2000) 258 A.R_ 7R3 Alberta Court of Queen's Bench

The 77-year-old plaintiff, Eileen Barnfield, was shopping at one of the defendant's stores, Real Canadian Superstores, in Calgary in January, 1995, where she shopped twice a week. As she was moving from one side of the tomato bin to another, she caught her foot in the gap between the tomato bin and a protruding bumper corner. She slipped, fell, and broke her hip. At the time, she was wearing winter boots with good grip soles. The corner was bolted to the floor at the base of the bin to protect the bin from being damaged by shopping carts. The plaintiff sued for damages for pain and suffering caused by the injury. Evidence at trial indicated that there had been only one other reported accident in that store involving - a customer tripping on the protective corners. Also, the plaintiff admitted that she had noticed these corners in the past but didn't remember specifically looking for them the day of this accident. Although the plaintiff won her action, the court awarded her an agreed amount of damages, reduced by 25 percent for her contributory negligence.

For Discussion

1. Did the defendant owe the plaintiff a duty of care? Explain. 2. If so, how did the defendant breach the duty of care? 3. Did the plaintiff take reasonable care for her own safety while in the store? Explain. 4. How would you have decided the case? Use negligence law concepts to support your answer.

Commercial and Social Host Invitees Law 12 Tort Law Ms. Ripley

An emerging area of tort law involves the possible liability of commercial and social hosts. This means that bar and restaurant owners, service-club volunteers, or even private citizens hosting parties in their own homes could be sued if someone is hurt or killed after being hit by a drunk driver leaving their functions. Courts have recognized that people who drink and drive do not consider the duty of care for their own safety, let alone anyone else's safety. Bar and tavern employees must observe if their customers are intoxicated and take steps to prevent them from driving. This may involve refusing to bring any more drinks, calling a taxi for the customer, or even calling the police. Restaurant and bar owners now have a spe cific duty of care and must take positive steps to prevent intoxicated customers from driving, or they will be held liable for any resulting injuries to third parties. A person's liability as an alcohol provider begins when that person serves someone who is already intoxicated. The liability of commercial hosts is just now being extended to social hosts, although there is very little Canadian case law to date. Prevost (Committee of v Vetter (see page 343) is one of the first examples. Based on that decision, it appears that a social host will only be held liable for injuries that are reasonably foreseeable as a result of the activity that takes place on the host's property.

Hunt et al. v. Sutton Group Incentive Realty Inc. (2001) 196 D.L.R. (4th) 738 Ontario Superior Court of Justice The 44-year-old plaintiff, Linda Leigh Hunt, attended a Christmas office party organized by her employer, a real estate company, in December 1994. The defendant, Sutton Realty, held the party at its business establishment where there was an open, unsupervised bar. Hunt was a part-time employee working as a receptionist, and she regularly answered the phone while attending the party that began at 1:00 P.M. At about 4:00 P.m., her employer was so concerned about Hunt's intoxication that he offered to call her husband to drive her home. She refused. When the party ended around 6:30 P.m., he asked if anyone needed a ride home and offered to provide cabs. Again, Hunt declined. On her way home, the plaintiff stopped at PJ.'s Pub with some co-workers and had two more drinks. Around 8:00 P.m., she turned down offers to give her a ride home and a bed for the night. Driving home in a bad storm with a blood-alcohol reading of 175, Hunt lost control of her car and crashed into an oncoming truck. The crash left her with severe head injuries causing per- sonality changes. She was unable to work. The plaintiff brought an action against her employer and the pub, and was awarded $1.1 mil- lion, the judge finding the plaintiff 75 percent responsible for the accident and the defendants liable for the remaining 25 percent. However, the pub, which was uninsured, was out of business, so Sutton Realty was fully responsible for the nearly $300 000 awarded to Hunt. Notice of appeal was filed in the Ontario Court of Appeal on March 2, 2001, by the defendant and its insurance company.

For Discussion

1. Did the defendant pub owe the plaintiff a duty of care? Explain. 2. Why was the plaintiff found 75 percent contributorily negligent? 3. In his ruling, the trial judge stated: "I find that the defendant Sutton not only owed its employee an obligation to take reasonable care to avoid acts or omissions which it could reasonably have foreseen would likely cause her some harm.... He ought to have anticipated the possible harm that could have happened to her and ... taken positive steps to prevent her from driving home." What did the judge feel Hunt's employer should have done? 4. What arguments do you think will be made by the defendant on appeal?

Motor Vehicle Negligence Law 12 Tort Law Ms. Ripley

Motor vehicle accidents often lead to both criminal and civil actions. Each province has a Highway Traffic Act or Motor Vehicle Act that provides a variety of regulations; for example, speed limits and seat belt laws. Violating any section of an Act usually suggests driver negligence. As you have learned, the burden of proof usually rests on the plaintiff in a negligence action. However, this burden has been shifted to the defendant in some motor vehicle cases. Once a plaintiff proves that he or she was struck by another vehicle, the burden of proof shifts to the defendant to prove that any loss or injury did not result from the defendant's negligence. If there is evidence that both drivers are responsible for an accident to some extent, liability will be split between them. Thus, motor vehicle accidents often involve contributory negligence.

Liability for Passengers The driver of a motor vehicle is liable for the safety of passengers. However, a passenger who accepts a ride knowing that the driver is intoxicated, or that the driver engages in dangerous activities such as excessive speeding, is presumed to have voluntarily accepted the risk by riding in the vehicle. Drivers often use voluntary assumption of risk as a defence in negligence actions brought by passengers injured under such circumstances. The burden is on the defendant to prove that the plaintiff understood the risk involved and willingly assumed it. If the defendant can prove this, the plaintiff will receive reduced damages. If, however, the plaintiff is unaware of any danger, there is no voluntary assumption of risk. Suppose, for instance, that Melanie accepts a ride from Calvin, without knowing that his car has faulty brakes. If Calvin has an accident because of the faulty brakes and Melanie is injured, he cannot argue voluntary assumption of risk as a defence, since Melanie did not know about the problem.

Seat Belts and Negligence

When worn properly, seat belts reduce the severity of injuries from motor vehicle accidents. They can even prevent a person from being thrown from a vehicle and killed. It is true that seat belts sometimes injure the ribs and abdomen, or trap people in burning or submerged cars. However, most studies conclude that the benefits far outweigh the disadvantages and that wearing seat belts gives more protection to the public. All provinces and the territories now have seat-belt laws that require both drivers and passengers, with few exceptions, to wear seat belts while a car is being driven. In fact, highway traffic statutes require that drivers have a specific duty of care to ensure that passengers in their vehicles, especially passengers under 16 years of age, wear seat belts. Drivers or passengers who fail to wear seat belts are not acting as reasonable persons because it can be foreseen that injury can result from this action. Increasingly, judges are ruling that contributory negligence exists when a person fails to "buckle up." Generally, damages are being reduced by 15 to 40 percent for those failing to wear a seat belt, even when an accident is totally the other driver's fault.

Vicarious Liability

In tort law, holding a blameless person responsible for the misconduct of another is known as the principle of vicarious (substitute) liability. Vicarious liability and motor vehicle negligence are based on the assumption that owners of vehicles have a duty of care to society to lend their vehicles only to individuals who are competent to drive them safely. It is clearly intended to encourage owners to be careful when lending their vehicles. Law 12 Tort Law Ms. Ripley

Provincial statutes place liability on both the driver of a vehicle and the owner. The owner is liable for the negligence of any driver when the vehicle is being used with the owner's permission. Even if the owner was not driving or was not present when an accident occurred, both parties are held responsible for any negligence. However, if the owner can prove that the vehicle was stolen and that the person driving it did not have permission to use the vehicle, the owner may avoid liability. The concept of vicarious liability applies also to the workplace. Employers are personally liable for torts committed by their employees during working hours. Although this may seem unreasonable or unfair, there are two main reasons for this principle. First, employers usually have large amounts of liability insurance to compensate victims for injury or loss, while employees have limited resources or insurance available. Second, society believes that the company that hires employees and makes the profit should be responsible for its employees' actions. Thus, although employees remain personally liable for their torts, their employers may, or may not, also be sued because of vicarious liability (see John v. Flynn, page 187).

Professional Negligence

Recently, tort law has been updated to better reflect people's expectations of professionals and the services they provide. "Professionals" include doctors, dentists, engineers, architects, accountants, and lawyers. These experts have specialized knowledge and skills, and they must exercise a certain standard of care. This does not mean that these professionals are perfect and never make mistakes. It does mean, however, that a professional's actions can be evaluated against the standards of similar professionals-members of the profession who have the same rank, qualifications, and skills. The more specialized and qualified the person, the higher the standard of care the law and society expects. For example, a heart surgeon will be held to a higher standard of care than a family doctor in dealings with patients. Although actions have occurred against many types of professionals, the largest body of case law is in the area of medical negligence.

Posca v. Sotto (1999) 43 O.R. (3d) 42C Ontario Court of Appeal

On May 26, 1989, the plaintiff, Rosario Posca, went to the emergency department of Peel Memorial Hospital where he was treated for a scalp laceration by the defendant, Dr. Alain Sotto. Sotto was an independent physician and not a hospital employee. Posca was treated on an operating table without side rails. After his wound was cleaned and sutured, he sat up on his own with his legs dangling over the side of the table. He complained of dizziness but declined Dr. Sotto's advice to lie down, saying he felt better sitting up. The doctor then told the plaintiff, "Just sit there, don't move, I'll be back in a couple of minutes" and then left the room, leaving Posca unattended. In the doctor's absence, Posca fell off the operating table and suffered a fractured nose, damaged teeth, and lacerations to his face. The plaintiff brought an action for negligence against Dr. Sotto and the hospital. The trial judge dismissed the action against the hospital but found for the plaintiff against the doctor. Posca was awarded nearly $40 000 in August 1997. This represented $30 000 in general damages, future dental care of $9500, and special damages of $137.77. The defendant doctor appealed this judgment, and the Court of Appeal dismissed his appeal in April 1999.

For Discussion

1. How did the doctor breach the duty of care owed to the plaintiff? Explain. 2. What should the doctor have done regarding his patient? List at least three options. 3. Why was the action against the hospital dismissed? Law 12 Tort Law Ms. Ripley

4. Why do you think the Court of Appeal dismissed the doctor's appeal?

Di d You Know According to Transport Canada, about 90 percent of all occupants of light status vehicles in Canada wore seat belts in June 1999. This was up from 89 percent in 1998 and 81 percent in 1992. Quebec leads the country with a usage rate of 93 percent, followed by Ontario with 91 percent. Why do you think that the percentage of seat-belt wearers has increased nearly 9 percent in those seven years?

Medical Negligence

Medical negligence concerns a doctor's duty of care to the patient; that is, whether he or she has provided a:-, adequate standard of care. Surgery, for example, always involves some risk, and even surgery that has been performed with the greatest duty of care may result in new problems. For example, the patient may not respond as expected and may be worse, rather than better, after surgery. A doctor who agrees to provide any medical service has a duty of care to meet a reasonable standard of care. If the doctor fails to meet this standard, this is medical negligence. If, however, the patient cannot prove negligence, no damages for injuries will be awarded, even if the harm is serious and permanent. Patients who are to undergo treatment have the right to know the truth about their medical condition, their treatment options, and the risks involved in order to decide whether or not to accept or reject a medical procedure. A doctor's ignorance of a particular risk may not be a successful defence: the law expects such a high standard of care from doctors that a court may rule that the doctor ought to have known about that particular risk. If the patient lacks sufficient information to give informed consent, the doctor may be liable for negligence-even assault and medical battery. Negligence may exist if the doctor did not fully inform the patient about the risks involved. Medical battery may exist if the doctor treated the patient without any consent at all, or if aspects of treatment had no consent. Assault and battery are discussed on page 359. Both torts are breaches of a doctor's duty of care to a patient. In determining whether a tort has been committed, the courts must answer this question: Would a reasonable patient, knowing all the risks, have decided against the treatment% If the answer to the question is "yes," then the physician has been negligent.

The Need for Informed Consent

Doctors have no right to touch any patient, no matter how sick or close to death, without that person's consent. Medical emergencies are exceptions to this principle, but the situation must be life threatening. In all but these cases, the consent must be informed. Exactly what must physicians tell patients? This issue was settled with the landmark Supreme Court of Canada judgment in Reibl v. Hughes (1984). See case below. Reibl accepted Dr. Hughes's advice about the need for surgery, but the doctor neglected to tell his patient that there was a slight risk of stroke or death during the operation. Although the doctor performed the operation with proper care and competence, Reibl suffered a massive stroke and was left with partial paralysis. Reibl sued for damages and was awarded $225 000, a judgment later upheld by the Supreme Court of Canada. Since that judgment, doctors must fully disclose any significant or material risks involved in the proposed treatment. Doctors must inform patients of known side effects, length o+- recovery time, recovery rates, and expected quality of life after surgery. The patient has to be sufficiently informed about all risks to make a reasoned decision about whether or not to submit to the Law 12 Tort Law Ms. Ripley treatment. Only then can the patient give informed consent to the doctor for the proposed treatment.

For Discussion

1. Why did the courts find the defendant doctor at fault? 2. Does this decision mean that doctors must tell patients even obvious information? For example, an appendectomy will probably result in some pain and leave a scar. Explain. 3. The Supreme Court judgment stated: "Even if a certain risk is only a mere possibility that ordinarily need not be disclosed, if its occurrence carries serious consequences it should be regarded as a material risk and the patient informed of it." What risk should have been disclosed in the Reibl v. Hughes case? Why?

Reihl v. Hughes [1980] 2 S.C.R. 880 Supreme Court of Canada In 1970, the plaintiff, Edward Reibl, then 44 years of age, was told by his doctor, Robert Hughes, that the cause of his high blood pressure and headaches was a partially plugged artery in his neck. The artery allowed only 10 to 15 percent of his blood to reach his brain. The doctor indicated that this problem posed aID percent risk of stroke every year it remained untreated, and advised his patient to have surgery. Hughes failed, however, to tell Reibl that the surgery carried a 4 percent risk of death and a 10 percent risk of stroke either during the operation or soon after. Reibl accepted the doctor's advice and consented to having the operation done right away, although he had the impression that there was no rush. The surgery could have been delayed until after Reibl' s retirement pension income was assured, 18 months later. Although the doctor performed the operation with proper care and competence, Reibl suffered a massive stroke soon afterward and was left with a paralyzed right arm and a lame leg. Because of his paralysis, Reibl could no longer continue in his job and was ineligible for certain disability benefits from his employer. Reibl took legal action in the Supreme Court of Ontario in 1977. The trial judge found the defendant surgeon liable, awarding Reibl damages of $225 000. Hughes appealed this decision to the Ontario Court of Appeal, where a 2 to 1 decision ordered a new trial. This judgment was appealed to the Supreme Court of Canada where, in a unanimous decision, the trial judgment was restored. For Discussion

1. Why did the courts find the defendant doctor liable? 2. Did the patient give informed consent? Explain. 3. What do you think a reasonable person in Reibl's position would have decided to do if all the risks had been fully explained? 4. What is the significance of the Supreme Court of Canada judgment? 5. The Supreme Court judgment stated, "Even if a certain risk is only a mere possibility that ordinarily need not be disclosed, if its occurrence carries serious consequence, it should be regarded as a material risk and the patient informed of it." Explain the meaning of this Law 12 Tort Law Ms. Ripley

Review Your Understanding

1. Who is an occupier, and what duty of care does this person have for persons entering his or her property? 2. Name the three common-law classes of persons who may enter another's property. Outline the duty of care that occupiers owe to each class. 3. What are occupiers required to do to prevent children from being harmed around an allurement? 4. How does some provincial legislation on occupiers' liability abolish the old common law? 5. Why does the burden of proof shift to the defendant in motor vehicle cases? 6. What trends have developed in judgments regarding passengers who fail to wear seat belts? 7. What is the principle of vicarious liability? How does it relate to negligence and tort law? 8. Identify five types of professionals, and give an example of negligence for each. 9. What is informed consent and why is it so important? 10. Distinguish between medical negligence and medical assault and battery.