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(ABSOLUTE) LIABILITY TORTS • General Rule

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(ABSOLUTE) LIABILITY TORTS • General Rule STRICT (ABSOLUTE) LIABILITY TORTS • General rule: • A defendant may be held liable in the absence of an intention to act or negligence in acting IF his conduct (or the conduct of those with whom he shares a special legal relationship) causes the Plaintiff loss or injury. • Strict liability: • Under the doctrine of strict liability, the Defendant may be held liable without acting intentionally, carelessly or unreasonably • In some instances, defences can be raised • (eg): employers are liable for the actions of their employees if they commit an act that results in loss or injury during the course and scope of their employment • Absolute liability: • Commission of a certain act serves as proof of a Tortious action resulting in liability • The essential issue is causation and not fault • There are no defences that can be raised • Vicarious Liability: • Several forms of vicarious liability: 1) Statutory Vicarious liability - (s192 Ontario Highway Traffic Act) – an owner of a vehicle accepts liability for any other driver using it with their knowledge - (Yeung v Au) 2) Principal/Agent relationship - A principal may be held liable for the Torts committed by an agent 3) Employer/Employee relationship - A Court can hold an employer liable, and an employee personally liable. - The doctrine of vicarious liability provides the Plaintiff with an alternative source of relief – this does not mean that the employee is relieved of responsibility. • I.R.A.C: (employer/employee relationship) • Issue: - The question is whether … (BASED ON THE EXAM PAPER…!!!) • Rule: - a Court can hold an employer vicariously liable, and an employee personally liable for the actions of the employee. This doctrine provides the Plaintiff with an alternative source of relief based on strict liability. The employer has a general right to recover losses from the employee at fault where negligence is found. An rd employment contract may exclude 3 party protection – London Drugs • Application: - To succeed in a Tortious claim for vicarious liability, the following 3 elements must be met: (1) a Tort must have been committed (ADD FACTS…!!!) 4 (2) the Tortfeasor must be an employee of the Defendant (ADD FACTS…!!!) - (Ontario Ltd v Sagaz Industries Ltd) –to determine if worker = employee - Whether an employment-like relationship exists turns on whether the employer exercises control over the alleged employee - An employer will not be held vicariously liable for the Torts committed by an independent contractor – exception(s): employer was negligent in hiring contractor / employer was negligent in supervising the contractor / employer hired contractor to do something wrongful - If the employer does not control the activities of the worker, the policy justifications underlying vicarious liability will not be satisfied - Ask yourself whether the person engaged to perform the services is doing it as a person in business on his own account? (USE JUDGEMENT…) - This is determined by evaluating the level of control the employer has over the worker’s activities - Factors to consider in making this determination: (ADD FACTS…!!!) (i) whether the worker provides his own equipment and uniform (ii) whether the worker hires his/her own help (iii) the degree of financial risk taken by the worker (iv) the degree of responsibility for investment and management by worker (v) opportunity for the worker to profit in the performance of his/her tasks - Conclude by telling the examiner that the more independent the worker, the less likely an employer/employee relationship exists (3) the Tort must be committed during the ‘course and scope of employment’ - (Salmond Test): an employee’s wrongful conduct falls within the course and scope of employment where it consists of either: (i) an act authorized by the employer, OR (ii) unauthorized acts that are so connected with acts authorized by the employer, that they may rightly be regarded as modes of doing what has been authorized : this test is used for NEGLIGENT TORTS ONLY - The notion of enterprise risk is the unifying theme of vicarious liability. Where the employee’s conduct is closely tied to a risk that the employer’s enterprise has placed in the community, the employer may justly be held vicariously liable for the employee’s wrong. If the employer’s enterprise fosters the environment in which the Tort could occur, they are vicariously liable. - (West & West v. MacDonald’s Consolidated Ltd & Malcom) : employee takes detour to pick up wrench, on the way back he is involved in an accident. He was negligent in causing the accident : if the employee was doing something appertaining to the course of his employment, unless the servant was on an independent and separate journey of his own unconnected to the work for which he was employed, the employer is liable : it is immaterial that the servant may be doing private business of his own if he is also on his master’s business, the employer is still liable 5 - (Wills v. Bell) : employee delivers ice. On his way back to return cart, he stops at a bar for a drink and gets drunk. Hits someone when driving the cart back : the Court found that the employee was on a frolic of his own : difference with (West) – alcohol and time spent on external activity : the employer was found not to be liable : in some instances, one can mix private business with their employment and still be acting within the course and scope of their employment – this is not one such instance - (Bazley v. Curry) – applied in instances of INTENTIONAL TORTS : this case OVERRULES the Salmond Test : For negligent Torts, the Courts have continued to apply the Salmond Test : vicarious liability is all about public policy : The test should be replaced with a contextualized, policy orientated 3 stage process: (1) should there be liability based on public policy? (2) whether the wrongful act of the employee is sufficiently connected to contact authorized by the employer to justify the finding of liability? (focus is on whether employer created or enhanced possibility of risk) (3) in determining sufficiency of the connection between the employer’s creation or enhancement of the risk and the wrong complained of, subsidiary factors may be considered. When related to an intentional Tort, they may include, but are not limited to: (i) opportunity enterprise afforded employee to abuse his/her power (ii) extent to which wrongful act may have furthered employer’s aims (iii) extent to which wrongful act related to friction, confrontation or intimacy inherent in the employer’s enterprise (iv) extent of power conferred on the employee in relation to the victim • Conclusion: - In conclusion, based on the following reasoning, I believe the employer to be (vicariously / not vicariously) liable. - Summarize reasoning for your conclusion • Escape of a Dangerous Substance: • (Rylands v Fletcher) • Defendant built reservoir on his property to supply water to mill. The reservoir was constructed over an abandoned mineshaft that was connected to the plaintiff’s property. Water from the reservoir broke through the hidden shaft and flooded the plaintiff’s adjoining mine. • In order to prove Tortious liability based on a cause of action for escape of a dangerous substance, the Plaintiff needs to prove the following: 1) Defendant brought something onto his land, 2) Defendant was not using his/her land in a natural way (non-natural use), 3) The thing was likely to cause mischief if it escaped (consequences of use), 4) The thing escaped and caused damage 6 • Defences to the Rule laid down in this case: 1) Consent - if the Defendant establishes that the Plaintiff implicitly or explicitly consented to the presence of the danger, he/she enjoys a complete defence to a claim 2) Common benefit - if the source of the danger is maintained for the common benefit of both parties, liability will not be imposed - (Carstairs v Taylor) - rain water was collected in a special box on the roof. Rat made a hole in the box. Water flowed into plaintiff’s ground floor premises, damaging his property. Action was dismissed as the water in the box was for the mutual benefit of both. 3) Default of the Plaintiff - a person who voluntarily and knowingly encounters a known danger cannot claim under Rylands - recovery will also be denied if a Plaintiff’s wanton, willful or reckless misconduct materially increased the probability of injury - Defendant will not be held liable for damages which are caused by the abnormal sensitivity of the Plaintiff’s property 4) Act of God - a force of nature which arises without human intervention - natural force must be so unexpected that it could not have been reasonably foreseen – therefore the effects could not have been prevented 5) Act of a stranger - no liability if the Defendant proves that the escape of the dangerous thing was caused by a stranger’s deliberate and unforeseeable acts - Defendant will have to show that the escape could not have been prevented through the exercise of reasonable care 6) Statutory authority - liability maybe denied if the Defendant acted under statutory authority • (Read v. Lyons) – to be used in conjunction with the above test • This case established the escape requirement • It is the obligation of the party managing the hazardous activity to be ultra-cautious • It will still be the task of the injured person to demonstrate that a duty of care was owed and not fulfilled • (Gertsen v. Municipality of Metropolitan Toronto) – establishing non-natural use • Disposing waste to level off a ravine was not a natural use of land 7 • Strict
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