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Tort Law: Duty of Care and Negligence

Duty of Care Related to the Determination of Negligence: The Case of Bad decision, Ontario

Facts of the Case

Negligence is defined as the failure to do something. It occurs when someone makes an omission of an act that an individual who is reasonable and guided by the considerations that ordinarily regulate the performance of human affairs would carry out. It can also be viewed as the conduct that a prudent individual may not do (Dyson 112). According to the neighbor’s principle, an individual should take reasonable care to avoid omissions or acts that the individual can reasonably foresee that could cause injury to a third party or the neighbor (Steiner Torts I 8). The neighbor is viewed as an individual who is directly affected by another person’s action. The action ought to have reasonably been contemplated.

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Having considered the definition of the neighbor’s principle, it is appropriate to address the issues associated with the Ewok Village Café. In this case, a resident threatened to sue the Municipal Council for negligence. Ewok Village Café was developed with the help of the council through the issuance of the necessary permits and licenses. However, there were various warnings by the municipal inspector to the effect that the construction did not follow the designs as per the council’s recommendations. On the day of opening the café, there were a few unfortunate incidences. The people who were affected have threatened to sue the Municipal Council for negligence (Steiner Torts I 9).

According to the law of torts, it should be established that there was a sufficient and close relationship between the local authority and the individuals who have incurred the damages. As such, it should be determined that carelessness on the council’s part caused injury or damage to the affected individual. Alternatively, a consideration that could limit or negate the scope of the duty and the damages, the breach of which may give rise to the injury, should be established (Steiner Torts II 8).

A critical analysis of the public office reveals that it is an established practice to consider the municipal actors as not liable where policy decisions are involved. However, this is limited to operational decisions. The principle and immunity are based on the fact that policy is the prerogative of the legislature (Steiner Torts 111 6). It is argued that it would be inappropriate and unacceptable for courts to impose any liability for the outcomes of policy decisions. Despite this, an official actor could be held liable for negligence in the manner the policy is executed (Steiner Torts III 8).

The key question is how the courts should determine when public officials are liable according to the torts law. The courts have refined the interpretations of the existing rulings and suggested a new test through which to determine the liability of public authority. The test moves away from established private law principles as captured under the tort law. It focuses on the concepts that have been adopted from public law (Steiner Torts III 8).

The broader implication is that if the decision holds and the precedent is promulgated, the verdict of the majority establishes a new law. The new legislation deals with the liability test for officials in public offices. The liability is not based on negligence. Instead, it is anchored on possible defensibility and acceptable exercise of the powers of public officers (Steiner Torts III 10). For the plaintiffs to win a negligence case, they must prove that the defendant owed a legal duty under the circumstances. Besides, they should prove that the defendant breached their legal duty by failing to act in a certain manner. As such, it should be established that the defendant’s actions or inactions contributed to the injuries.

The Judicial Tests

To assess the negligence, the court has to first determine whether the officials, who are the defendants, owed the complainant a duty of care as defined by the law (Dyson 35). The next step is to establish whether there was any breach of the legal duty by doing or failing to do something that a reasonable individual would have done under similar circumstances. It should be noted that the term ‘reasonably prudent’ individual refers to a legal standard that shows how reasonable persons would responsibly act under given situations (Steiner Torts 1 13).

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A person may be said to be negligent if an average and prudent individual, acting on the information that the defendant had, would have realized that somebody could get injured as a result of their actions. As such, a reasonable person would have responded differently.

When applying the test of remoteness, the court would have to take into consideration the degree to which the injury caused by the action or inaction was reasonably foreseeable. In most cases, the test is associated with the evaluation of the causal events arising from a potentially negligent action and the harm. It is noted that the shorter the chain, the more remote the resulting harm (Steiner Torts III 14).

The municipal council should realize that the officials would be found negligent because they inspected the construction. They found some faults but failed to take action (Steiner Torts III 8). The officials acted negligently. As such, they should take responsibility for the events that resulted from their negligence. However, the municipal council may be found not guilty of negligence. The innocence may be established if the council claims that its role is limited to policy formulation.

Duty of Care, Standard of Care, Causation, and Remoteness: The Case of Doug

Facts of the Case

Negligence involves the relationship between two or more parties that are embroiled in a dispute. In most cases, negligence cases are anchored on a non-contractual relationship between two parties (Steiner Contract Law I 9). The parties may know each other. For example, Doug was known to the neighbor who was hosting the party. However, it is not evident that he knew the other party, which he is contemplating taking to court. The individuals that may not be known to Doug are the party-attendants, who hit the stage. The other parties not known to Doug include the city of Ottawa and Keg Masters Ltd., the brewer.

Due to the lack of an agreed relationship between the individuals, the question that may initially arise in a case of negligence is whether or not there was an existing relationship between them. If a liable case of negligence is established, the relationship of duty of care must be made clear (Steiner Contract Law I 9). For instance, in Kamloops vs. Nielson and Anns vs. Merton London Borough, the precedent used in the case, the question was whether or not the municipality owed a duty of care to the plaintiffs. The duty of care was about the assurance that certain property was safe and built according to the recommended municipal rules (Steiner Contract Law I 7).

It had to be established whether the actions of the municipality of Kamloops could be defined under the tort law. In this case, the broader implication was the reinforcement of the Anns test. Here, the neighbor’s principle and its application to public officials were explored in the context of the policy duties that were distinctive and insulated from private legal obligations (Steiner Torts III 8).

Determination of Negligence

There are various tests used in legal scenarios to determine the existence of causal chains (Steiner Introduction and Overview 23). The chain starts with the action of one party in the dispute to the identified effect on the affected individual. To establish negligence on the part of the defendant and their responsibility for the pain suffered by the complainant, the court has to determine whether or not the actions of the accused were causally linked to the harm (Steiner Introduction and Overview 10). The court has to apply the standard test of ‘but’. Consequently, the plaintiff must prove that the action of the defendant led to the injury.

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The court may also use the test of remoteness. In this case, it has to take into consideration whether the injury could have reasonably been foreseeable or not. The general principle is the evaluation of whether the causal chain of events exists between a negligent action and harm (Steiner Contract Law I 16). To this end, a short and direct causal chain indicates a reduced remoteness for the injury. In this case, Doug may not have a prosecutable case. He can only prosecute his neighbor. He has a relationship with the neighbor. The relationship points to the existence of a duty of care. The other parties do not carry any duty of care in the incidence.

How Damages Are Calculated

Should any party be found to have been culpable, the court may direct that Doug be compensated. The compensation requirement provides for damages to be paid to a claimant. The compensation covers the economic damages that would have resulted from the activities of the guilty defendants (Dyson 89). It also provides for equivalent financial compensation for non-economic damages arising from the actions of the defendant. In making the determination, the court looks at various factors.

The factors include medical insurance and workers’ support. The compensations awarded by the courts take into consideration the direct pecuniary loss. Such losses include the inability to work and medical bills (Steiner Torts II 7). Non-pecuniary damages are also factored in. However, the latter is abstract and difficult to relate to monetary loss.

The courts have established an upper limit of $100,000 as a pecuniary award for pecuniary damages. The cap can be adjusted for inflation. For example, in 2015, the limit was set at $360,000 (Steiner Torts III 14). The municipal council, the brewer, and the party-goers may not be found negligent about Doug’s case. As such, they do not have any obligations to Doug. However, the neighbor could be found negligent. As a result, they should compensate Doug.

Works Cited

Dyson, Matthew. Unraveling Tort and Crime, London: Cambridge University Press, 2014. Print.

Steiner, Philip, “LAWS 2202A Law and Obligation Week 1 Lecture: Introduction and Overview”, 2016. Web.

—. “LAWS 2202A Law and Obligation Week 2 Lecture: Torts 1”, 2016. Web.

—. “LAWS 2202A Law and Obligation Week 3 Lecture: Torts 11”, 2016. Web.

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—. “LAWS 2202A Law and Obligation Week 4 Lecture: Contract Law 1”, 2016. Web.

—. “LAWS 2202A Law and Obligation Week 4 Lecture: Torts I11”, 2016. Web.

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