In this feature, we explain the meaning of some frequently used legal terms. Following each issue of Risk Management Tidbits, new terms will be added to this growing glossary.
Duty of Care
A “duty of care” is a legal obligation owed by one person or entity to another person or entity. In a negligence lawsuit, the first step of the court is to determine whether the defendant owed a duty of care to the plaintiff. Not every person who causes injury to another person owes them a duty of care. A duty of care will only be imposed if there was sufficient proximity between the two parties and if it was reasonably foreseeable to the defendant that his or her negligence would cause damage to the plaintiff. There are many recognized categories of duties of care. For example, it is well established that a driver owes a duty of care to other users of the road, a municipality owes a duty of care to pedestrians using its sidewalks, and a doctor owes a duty of care to his or her patients.
Examination for Discovery
In legal actions brought in the Supreme Court of BC, each side has the right to conduct an examination of the opposing party(ies) under oath. The examination, which takes the form of questions and answers, occurs outside of court, usually at a lawyer’s office or a court reporter’s office. The answers given at an examination for discovery can help a party to learn more about the case and also can be used against the other side at trial. Where a party is not an individual, a representative will be chosen to be examined on its behalf.
An “occupier” is defined under the Occupiers Liability Act as a person who: (a) is in physical possession of premises, or (b) has responsibility for, and control over, the condition of the premises, the activities conducted on the premises and the persons allowed to enter the premises. The property owner is often but not always the occupier. For example, a tenant may be found to be the occupier if it has effective control over the premises.
Occupiers Liability Act
When a local government is sued for a trip-and-fall, slip-and-fall or other accident occurring on municipal property, the plaintiff usually relies on the Occupiers Liability Act. Under this statute, an “occupier” (defined below) is responsible to keep its property reasonably safe for those entering it. If the occupier fails to do so, the injured person may have a claim for damages.
Standard of Care
The “standard of care” refers to the minimum level of acceptable conduct of a defendant. In a negligence lawsuit, once the court has determined that the defendant owes the plaintiff a duty of care, the court will consider whether the standard of care was breached. The standard of care is based on reasonableness, not perfection. It will vary depending on the particular knowledge, experience and circumstances of the defendant. Generally speaking, where a municipal defendant has in place a bona fide policy, the terms of that policy will dictate the applicable standard of care.
A summary trial is available in some Supreme Court of BC cases to obtain final adjudication of all or part of a lawsuit without a traditional trial. Instead of in-court testimony, evidence is presented to the judge by written affidavit and/ or other documentary evidence, such as examination for discovery transcripts. In addition, there is a court hearing before a judge in which lawyers make oral submissions. Not all cases are considered appropriate for the summary trial procedure. If a case is factually complex and involves conflicting evidence, summary trial may not be available.