ch6 Flashcards
nature of duty of care
mechanism to control scope of liability
- if no duty of care exists = no liability
- if duty of care exists - liability is possible
Donoghue v Stephenson
established the neighbour principle
- acts or omissions that person could reasonably foresee harming your neighbour
Duty of care test in Canada
reasonable forseeability
proximity
policy
reasonable foreseeability - objective test
would a reasonable person looking at the situation foreseen the risk of loss
Duty of care - proximity
is there a close and direct connection between the plaintiff and the defendant ?
ways proximity can arise
physical, social, commercial
duty of care - proximity: negligent statements
inaccurate statements made by professionals
- reasonable reliance by plf on def statement
Hercules Management v Ernst + Young
special knowledge claimed by def statement made on serious occasion direct enquiry by plf to def financial benefit to def statement of fact vs statement of opinion disclaimer made by defendant
DOC - policy
overriding considerations that negate duty of care – Focus on legal, social, political concerns
proximity
focus on the relationship of the parties
effects of policy
even if reasonable foreseeability exists
even if close proximity between the parties
doc rejected for policy reasons
breach of standard of care
liability possible
nature of standard of care
reasonable person test
- how would a reasonable person act in the situation?
- provides flexibility to the courts
formulation of SOC
reasonable person adjusts to the situation - reasonable foreseeability of risk likelihood and severity of loss affordability social utility sudden peril doctrine
SOC professional negligence
must act as a reasonable professional
no allowance for inexperience
enhanced standard for specialist or expert
SOC product liability
losses caused by manufactured products
SOC product liability - american approach
strict liability
- manu liable for any defects
SOC product liability - canadian approach
negligence
- manu liable only for careless defects
- negligent manufacture, design and failure to warn
Causation of Harm steps
Step 1 - factual causation - question or fact - casual connection Step 2 - legal causation - question or fairness - remoteness principle
both factual and legal causation required
Causation - casual connection
liability only if loss caused by the breach of SOC
- def carless act is linked to the plfs injury or loss
- BUT FOR test to determine if casual link exists
Causation - all or nothing approach
if probable casual connection = full compensation
if no probable casual connection = no compensation
- ONLY NEED TO PROVE THAT CARELESSNESS WAS A CAUSE
causation - principle of
remoteness
-def wouldnt take precautions - def cannot guard against unforseeable risks
- even if factual causation
- no liability if not legal causation
-
causation: remoteness - think skull principle
victim unusually vulnerable to loss
- if some harm reasonably foreseeable - plf can recover for entire injury
- if no harm reasonably foreseeable - plf cannot recover for any part of the injury
Defences
contributory negligence
voluntary assumption risk
illegality
Defences - contributory negligence
plfs careless contribution to own loss
BC ngeligence act section1
if by fault 2 or more persons damge or loss is cause to one or more of them, the lability to make good the damage or loss is in the prorportion to the degree to which each person was at fault
effects of defence - contributory negligence
partial defence
appointment of responsibility
damages reduced to refelct plfs contribution
forms of contributory negligence
plf unreasonably enters into a dangerous situation
pls unreasonably contributes to the creation of accident
plf unreasonably contributes to the extent of injury
defence - assumption of risk
plf accepted risk of loss
defence - assumption of risk
; elements of defence
voluntary assumption of physical risk to injury
voluntary assumption of legal risk of injury – plf gave up right to sue for injury
defence - assumption of risk
; effect of defence
complete defence ( not merely apportionmnet)
defence - illegality
plf injured while engaged in illegal activity
defence - illegality: elements
plf involved in unlawful act when negligence occurred
defence - illegality: effect
complete defence
- criminal activity often irrelevant
contributory negligence usually back up defnece
