ch6

Question 1

nature of duty of care

Answer 1

mechanism to control scope of liability

• if no duty of care exists = no liability
• if duty of care exists - liability is possible

Question 2

Donoghue v Stephenson

Answer 2

established the neighbour principle

- acts or omissions that person could reasonably foresee harming your neighbour

Question 3

Duty of care test in Canada

Answer 3

reasonable forseeability
proximity
policy

Question 4

reasonable foreseeability - objective test

Answer 4

would a reasonable person looking at the situation foreseen the risk of loss

Question 5

Duty of care - proximity

Answer 5

is there a close and direct connection between the plaintiff and the defendant ?

Question 6

ways proximity can arise

Answer 6

physical, social, commercial

Question 7

duty of care - proximity: negligent statements

Answer 7

inaccurate statements made by professionals

- reasonable reliance by plf on def statement

Question 8

Hercules Management v Ernst + Young

Answer 8

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

Question 9

DOC - policy

Answer 9

overriding considerations that negate duty of care – Focus on legal, social, political concerns

Question 10

proximity

Answer 10

focus on the relationship of the parties

Question 11

effects of policy

Answer 11

even if reasonable foreseeability exists
even if close proximity between the parties
doc rejected for policy reasons

Question 12

breach of standard of care

Answer 12

liability possible

Question 13

nature of standard of care

Answer 13

reasonable person test

• how would a reasonable person act in the situation?
• provides flexibility to the courts

Question 14

formulation of SOC

Answer 14

reasonable person adjusts to the situation 
- reasonable foreseeability of risk 
likelihood and severity of loss 
affordability 
social utility 
sudden peril doctrine

Question 15

SOC professional negligence

Answer 15

must act as a reasonable professional
no allowance for inexperience
enhanced standard for specialist or expert

Question 16

SOC product liability

Answer 16

losses caused by manufactured products

Question 17

SOC product liability - american approach

Answer 17

strict liability

- manu liable for any defects

Question 18

SOC product liability - canadian approach

Answer 18

negligence

• manu liable only for careless defects
• negligent manufacture, design and failure to warn

Question 19

Causation of Harm steps

Answer 19

Step 1 - factual causation
- question or fact 
- casual connection 
Step 2 - legal causation 
- question or fairness
- remoteness principle 

both factual and legal causation required

Question 20

Causation - casual connection

Answer 20

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

Question 21

Causation - all or nothing approach

Answer 21

if probable casual connection = full compensation
if no probable casual connection = no compensation
- ONLY NEED TO PROVE THAT CARELESSNESS WAS A CAUSE

Question 22

causation - principle of

remoteness

Answer 22

-def wouldnt take precautions - def cannot guard against unforseeable risks
- even if factual causation
- no liability if not legal causation
-

Question 23

causation: remoteness - think skull principle

Answer 23

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

Question 24

Defences

Answer 24

contributory negligence
voluntary assumption risk
illegality

Question 25

Defences - contributory negligence

Answer 25

plfs careless contribution to own loss

Question 26

BC ngeligence act section1

Answer 26

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

Question 27

effects of defence - contributory negligence

Answer 27

partial defence
appointment of responsibility
damages reduced to refelct plfs contribution

Question 28

forms of contributory negligence

Answer 28

plf unreasonably enters into a dangerous situation
pls unreasonably contributes to the creation of accident
plf unreasonably contributes to the extent of injury

Question 29

defence - assumption of risk

Answer 29

plf accepted risk of loss

Question 30

defence - assumption of risk

; elements of defence

Answer 30

voluntary assumption of physical risk to injury

voluntary assumption of legal risk of injury – plf gave up right to sue for injury

Question 31

defence - assumption of risk

; effect of defence

Answer 31

complete defence ( not merely apportionmnet)

Question 32

defence - illegality

Answer 32

plf injured while engaged in illegal activity

Question 33

defence - illegality: elements

Answer 33

plf involved in unlawful act when negligence occurred

Question 34

defence - illegality: effect

Answer 34

complete defence
- criminal activity often irrelevant
contributory negligence usually back up defnece