2.1 - Negligence in Tort

Question 1

Definition - “Plaintiff”

Answer 1

-the party who brings a legal action against another, called the defendant

Question 2

Definition - “Defendant”

Answer 2

-in civil matters, the person or organization that is being sued

Question 3

Negligence in Tort

Answer 3

-Tort duties arise out of a relationship between the plaintiff and defendant and involve the recognition and avoidance of unreasonable risks of harm

Question 4

Negligence

Answer 4

-typical liability policies have most often responded to lawsuits alleging negligence against the insured (the defendant of lawsuit). For a plaintiff to establish a cause of action in negligence against a wrongdoer, several elements must be present
-the traditional English approach used to explain the elements required is the “ABC Rule”. According to this rule, a plaintiff is entitled to succeed if 3 rules are followed to the satisfaction of the court:

A. A duty of care exists (“who is my neighbour” determine whether duty of care exists toward a given plaintiff)
B. Breach of that duty occurred (whether that duty was breached and whether the loss should have been foreseeable by the wrongdoer)
C. Casual relationship between the breach and damages is shown (determine if the damages suffered by plaintiff were actually caused by the breach of that duty

-law scholars in some common law countries including Canada, have expanded the divisions of the rule in an attempt to better clarify the different aspects of negligence cases. Actual case law does not necessarily treat the issues in the neat categories suggested in the ABC Rule
-in the study of law, one will likely come across the Latin expression “prima facie”, meaning “on the face of it” or “at first glance”. It is used in modern English to signify that on first examination, a matter appears to be self-evident from the facts presented. The implication is that there is sufficient evidence to prove a particular fact. When a prima facie case has been established, the court presumes that the information is true until or unless evidence is introduced to the contrary

Question 5

Negligence and the Reasonable Person

Answer 5

-The Ontario Court of Appeal provided one of the most frequently cited descriptions of the term in Arland v. Taylor, 1955
-here the reasonable person is described as a mythical creature of the law whose conduct is the standard by which the court measure the conduct of all other persons and find it to be proper or improper in particular circumstances as they may exist from time to time:
-the reasonable person is not an extraordinary or unusual creature
-the reasonable person is not superhuman
-the reasonable person is not required to display the highest skill of which anyone is capable
-the reasonable person is not a genius who can perform unusual feats
-[He is not]…possessed of unusual powers of foresight
»the reasonable person is a person of normal intelligence who makes prudence a guide to his or her conduct. He or she does nothing a prudent person would not do and does not omit to do anything that a prudent person would do. The reasonable person’s conduct is guided by considerations which ordinarily regulate the conduct of human affairs. This conduct is the standard adopted in the community by persons of ordinary intelligence and prudence.

-often a jury decides whether a defendant has acted as a “reasonable person”
-minors may not be expected to act as reasonable persons, and standard by which they are judged may be different from those applied to adults
-what is required is that all people act with care and thought as to what their own behaviour or actions might do to another person. Don’t behave or act in a way that causes harm or damage to another person or property
-the description is in terms of what a reasonable person is not, stated positively, this creature is a normal person with ordinary skills, intelligence and foresight