Business Law: Tort of Negligence and Defences

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

BUSINESS LAW1
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).

BUSINESS LAW2
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