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Clarifying Negligence

In January 2010, I wrote about how a Waiver of Liability can be an effective method of protecting your company from customers who get injured while engaging in challenging activities. I said that your waiver should include language stating the customer waives his/her right to sue you should things go wrong, and I suggested that if you intend to include negligence, you should clearly state that.


May 3, 2011
By Neil J. MacDonald

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In January 2010, I wrote about how a Waiver of Liability can be an effective method of protecting your company from customers who get injured while engaging in challenging activities. I said that your waiver should include language stating the customer waives his/her right to sue you should things go wrong, and I suggested that if you intend to include negligence, you should clearly state that.

I thought it might be a good idea to look a little more closely at the law of negligence for this column. The “classic” definition of negligence is “the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do,” or “doing something which a prudent and reasonable man would not do.”

We have all seen people do things that do not seem reasonable to us, and most of us with spouses can safely say we have done things that do not seem reasonable to others! The courts came up with their own measure of reasonableness, and created this concept of a “reasonable man.” Then, either through political correctness or oxymoronic construction, they changed it to “reasonable person” which now applies to all of us equally.

The reasonable person is of normal intelligence, and without any unusual powers of foresight. The person is not extraordinary, nor unusual, but will act in accordance with generally approved practices. And so should we.

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In order to have a finding of negligence against us, we must first have or owe a “duty of care” towards someone. We must then breach that duty of care. Finally, there must be some measurable damage flowing from or caused by that breach of the duty.

Duty of care is a legal obligation requiring us to take reasonable steps to avoid conduct that entails an unreasonable risk of harm to others. The duty is not something you owe to everyone in the world, but only to those who can be characterized as your “neighbour.” Those who are close enough to you to be affected by what you do, or don’t do. Reasonable foreseeability is the key issue here – was it reasonable that the person harmed should have been in your thoughts prior to the act or omission?

The case that started this movement, called Donoghue v. Stevenson, came out of the United Kingdom in 1932. It involved a woman who sued a drink manufacturer because she found a decomposed snail in a bottle of ginger beer after she drank from it. She fell ill, and sued for damages. The law at the time was that you could only sue if the parties contracted directly with each other. Since the woman did not buy the drink directly from the manufacturer, it was customary that she should not have a case against it. The court found that the manufacturer should have had the end user in mind at the time of bottling; therefore it was reasonably foreseeable that its actions would affect Ms. Donoghue. This proposition still stands 80 years later!

If your conduct has been found not to have conformed to that of the reasonable person, then you have breached the duty of care. This is an all-or-nothing proposition. Once established, the injured party must prove that he or she has suffered damages, and that those damages were caused by your actions or inactions. This is called causation.

Causation is generally established using the “but for” test. What this means is the damages would not have been sustained “but for” the conduct of the negligent party. That party does not have to be solely responsible for all the damages suffered, but the principle just means that some of the damages would not have occurred but for his/her actions.

An injured party also can be found to have contributed to the injuries he suffered. Contributory negligence used to be a complete defence to a negligence charge. Today, however, it simply affects the damages awarded. If the injured party is found to be 25 per cent responsible for his/her own injuries, his award would be reduced by that same 25 per cent margin.

While this is only a brief look into the law of negligence, it serves as a reminder that we are all in this together, and that our actions and omissions can affect those around us. We need to be as careful as reasonably possible when conducting our affairs – both in our business lives, and our private lives, and always look at the bottom of the bottle!


Neil MacDonald is an aviation lawyer practising in B.C. He has completed an ISO 9001:2008 QMS Lead Auditor course, holds an ATPL-H, and flies as an IFR Off-Shore Captain. neil.j.macdonald@gmail.com This is not a legal opinion. Readers should not act on the basis of this article without first consulting a lawyer for analysis and advice on a specific matter.


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