Business Law: Tort of Negligence and Defences

This article discusses the tort of negligence in business law and the defences that can be claimed. It analyzes a case study and provides relevant rules and application. The defendants' liability and possible defences are also discussed.

Running head: BUSINESS LAW
BUSINESS LAW
Name of the Student:
Name of the University:
Author Note:

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Issue:
The issues are:
1. Whether Rusholmes can claim for damages under the principle of unintentional
tort against
a) Standard Household Products Ltd and
b) Saunders and Watts Ltd,
2. Whether any defences can be claimed by the defendants in the given scenario.
Rules:
The present case study is to be analyzed in the light of the tort law. The tort
law can be classified into two categories; intentional and unintentional tort laws
(Goldberg, Sebok & Zipursky, 2016).
The intentional tort refers to a civil wrong that results in case the tortfeasor
gets involved in an intentional conduct causing damage to other person. For
instance, trespassing, battery, assault, defamation all fall under the category of
intentional torts as they are committed when the tort feasor has the malice and
intention to do.
On the other hand, unintentional tort occurs when the tort feasor
unintentionally in a careless and reckless manner acts in such a way resulting to
the damage to the other party. Here the tort feasor has no aforethought intention to
commit the tort. Negligence is a type of unintentional tort where the accused fails
to exercise the duty of care in order to avoid any harm that can be reasonably
foreseen.
Elements required to support a negligence claim includes the existence of a
duty, a voluntary act or its omission which breaches the duty, the causation and
proximate causation of harm. When the plaintiff is able to prove the presence of all
these elements, the defendant can be made liable for the tort of negligence as laid
in Crocker v. Sundance Northwest Ltd (1985) 20 D.L.R. (4th) 552 (Ont. C.A).
Duty of care means the relationship in between the defendant and the
plaintiff due to which the defendant is required to take due care of the plaintiff.
This can be discussed in the light of the Stevenson Hotel Case where it was seen
that a hotel was made liable for 50 percent of the damages occurred as it allowed a
person to drink and drive home drunk (Goudkamp, 2017).

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In this case, it was held that the hotel has a duty not to serve drink to a
person who is already drunken and also has a duty to prevent him from driving
after getting drunk. Further duty of care can be discussed in the light of Abarquez
e. Ontario (2005), 257 D.L.R. (4th) 745.
Once it is established that the defendant had a duty towards the claimant,
the next element required to be proved is that the defendant has breached his duty
to exercise standard care towards the plaintiff. It means that the claimant is
required to show that the defendant has failed to act as per the recognized
standard. Such standard can be established by any professional organization or by
applying the ‘reasonable person’ test where it is seen that whether the defendant
has acted in a way which any reasonable person in such situation would do in the
same situation. This can be supported by Mustapha v. Culligan of Canada Ltd.,
2008 SCC 27, [2008] 2 S.C.R.
Once it is established that the defendant breached the duty towards the
claimant, the next element required to be proved is causation. It means that a
strong connection must be there between the act of the defendant that resulted into
the loss or injury to the plaintiff.
The importance of the presence of this element is found in Bindseil v.
McDonald's Restaurants of Canada Ltd. 2009 BCSC 61. In this case, Mr Bindseil
was suffering from serious stomach pain called colitis after taking a meal at the
McDonlds restaurant. Here the plaintiff claimed for damages out of negligence for
consuming contaminated food at the restaurant. The court however dismissed the
action stating that no evidence was found to establish the causation of colitis due
to taking contaminated food.
Lastly, it has to be seen that the injury or damage suffered by the plaintiff
can be reasonably foreseen not being very remote to the causation. When of all
these elements, the defendant can be made liable for the tort of negligence as laid
in Crocker v. Sundance Northwest Ltd.
Various defences are there present that can be availed by the defendants in
case they are made liable for the tort of negligence. Such defences include
contributory negligence of the occupier, failure to obtain as well as maintain
insurance.
Contributory negligence is a valid defence that can be raised by the
defendant in case of negligence. It refers to the failure of the injured party to act
in a manner which contributed to the injury or loss suffered by the plaintiff. This
can be supported by Perrin v Blake, 2016 NSSC 88.
There are liabilities of the occupiers who occupy any premise like a house,
resort, building or property to others on their premise. It states that the occupiers

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has a duty of taking care of his property such that the premise is kept in safe
condition for the trespassers also as found in Cempel v. Harrison Hot Springs
Hotel Ltd. 1997 CanLII 2374 (BC CA).
Apart from this, another defence that can be claimed by the defendant is
that the plaintiff has failed to obtain as well as maintain insurance coverage. In
case the plaintiff fails to do so, he can be made liable for it (Goudkamp, 2017).
Another type of defence is voluntary assumption of risk where the
defendant can claim that the plaintiff has knowledge of risk involved and has
consented to it voluntarily.
Vicarious liability is a strict form of secondary liability in which a person
can be made liable for the act of his agent. It is opposite to the primary liability
where a person is made directly liable for his own act.
Application:
In the present case, it is observed that Saunders and Watts Ltd. firm was
engaged to refinish floors of some rooms of the house owned by Mrs. Rusholme
who along with the husband is the plaintiff party in this case. The Saunders were
specifically asked by her to keep the windows half open for the easy flow of air
and after they finish their work must give the key of their house to their
neighbours as they will be out for vacation.
After the Saunders completed sanding of the floors, they applied a sealer
which they bought from Standard Household Products Ltd and the sealer
possesses a warning which states that adequate ventilation must be allowed and
all the open flames and spark emitting devices must be removed along with other
instructions.
Thus it is seen that Standard Household Products Ltd. had performed its
duty to give warning hence it cannot be made liable in case any incident occurred
due to the failure of following the instruction given in the sealer.
After the sanding work is done, they closed all doors, windows of the house
and left the key and went way. This showed that the Saunders and Watts had a
duty of taking care of the house of Rusholmes which they had breached as per
Stevenson Hotel Case. Due to such breach of duty, after they left a serious
explosion occurred which damages the house severely. Thus it is seen that all the
elements required to claim an action for tort of negligence are present.

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Hence the Rusholmes can bring an action against Saunders and Watts for
tort of negligence as per Crocker v. Sundance Northwest Ltd. Thus Saunders and
Watts can be liable for primary liability.
However Standard Household Products Ltd cannot be made liable as it had
not breached its duty. But it can be made liable vicariously as Saunders and Watts
failed to construe to the instructions given in the sealer.
However if the observation made in Deloitte & Touche v Livent Inc
(Receiver of) 2017 SCC 63 by the Supreme of Canada is referred, it is seen that it
is likely that the court would conclude that the explosion was very remote. On
basis of this, Standard Household Products cannot be held liable. Hence it is not
tort feasor.
Although both Saunders and Watts Ltd. and against Standard Household
Products Ltd can be made liable for the tort of negligence they can defend
themselves. From the facts of the case it is observed that the house of the
Rusholmes is serviced by gas. Along with various appliances there was a pilot
light which burns permanently but can be turned off. Hence as the occupier of the
house, the Rusholmes has duty of taking care of his property such that the
premise is kept in safe condition for the trespassers also as found in Cempel v.
Harrison Hot Springs Hotel Ltd. Thus they must ensure to take good care of their
house such that it is safe for others also. However they failed to do so.
Moreover it is seen that they failed to renew their fire insurance policy that
had expired few days prior they leave for vacation. Thus here the Rusholmes had
failed to maintain insurance coverage and so they can be made liable for it.
Another defence can be raised is the voluntary assumption of risk.
These defences can be claimed by the defendants in order to escape or
reduce their liability for tort of negligence. Hence here the tortfeasor is Standard
Household Products Ltd.
Conclusion:
Hence from perusing the rules enumerated above and the application made
it can be held that
1. a) Standard Household Products Ltd
Rusholmes cannot claim for damages for the tort of negligence from Standard
Household Products Ltd and

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b) Saunders and Watts Ltd
Rusholmes can claim for damages for vicarious liability from Saunders and
Watts Ltd,
2. Defences:
The defences that can be claimed by the defendants in the given scenario
are for failure to maintain the insurance policy, presence of voluntary assumption
of risk and for failure to construe to the occupier’s liability.

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References:
Abarquez e. Ontario (2005), 257 D.L.R. (4th) 745.
Bindseil v. McDonald's Restaurants of Canada Ltd. 2009 BCSC 61
Cempel v. Harrison Hot Springs Hotel Ltd. 1997 CanLII 2374 (BC CA)
Crocker v. Sundance Northwest Ltd (1985) 20 D.L.R. (4th) 552 (Ont. C.A)
Goldberg, J. C., Sebok, A. J., & Zipursky, B. C. (2016). Tort Law:
Responsibilities and Redress. Aspen Publishers.
Goudkamp, J. (2017). Breach of Duty: A Disappearing Element of the Action
in Negligence?. The Cambridge Law Journal, 76(3), 480-483.
Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R
Perrin v Blake, 2016 NSSC 88