Chapter 5 Flashcards
Negligence
Inadvertent or unintentional careless conduct that causes injury or damage to another person or their property
- All four required elements must all be established to succeed in a negligence action:
- A duty of care
- Breach of duty
- Causation
- Damage
Duty of care
That the proximity of the parties
created an obligation to exercise
caution or care
Donoghue v Stevenson – Neighbour
Principle
On August 26, 1928, Mrs. Donoghue’s friend bought
her a ginger beer from a café in Glasgow, Scotland.
She consumed about half of the bottle which was
made of dark opaque glass, when the remainder of
the contents were poured into a glass. At this point,
the decomposed remains of a snail floated out,
causing Mrs. Donoghue to suffer a shock and severe
gastro-enteritis.
Anns two-part test
Anns case: created a two-stage test for determining the existence of a duty of care
- Foreseeable injury and proximity
- Provides for exceptions or modifications to the primary test for policy reasons
Dobson v Dobson
pregnant mother drove a snowmobile negligently, crashed and caused in jury to her unborn child. The child was mentally and physically disabled, and the child’s grandfather sought recovery from the negligent mother.
Reasonable foreseeability test was met, however the SCC did not impose a new duty of care between mother and fetus because of policy reasons – intrusion into bodily integrity, privacy and
autonomy rights.
Misfeasance and Nonfeasance
Misfeasance: An act that causes harm to another (wrongdoing)
Nonfeasance: A failure to prevent an injury
Breach of Standard of Care
Once the existence of a duty is established the second issue is whether the defendant demonstrated sufficient care
Reasonable person test
What would a reasonably prudent person, in possession of all the facts of the case, have done in this situation?
Young v. Bella
A social work student, Ms. Young, included a case study in her term paper without proper citation, detailing a woman’s confession of child abuse. Another individual, Bella, concerned about the authenticity, reported it to the Social Work Department, leading to notifications to Child Protective Services, the RCMP, and various social workers across communities
Bella sued and won over $800,000 in damages
Causation
the relationship of cause and effect between one event or action and the result.
But for test
But for” test: “but for” the conduct of the plaintiff, no injury would have resulted (causation)
Remoteness Test
Whether the specific type of injury suffered
was reasonably foreseeable
Damages
In the past, there had to be some actual physical damage but the
court now recognizes economic and mental injury
Defences to Negligence
Voluntary assumption of risk
Contributory negligence
Illegality
Occupier’s liability
In common law, an occupier of property (not the owner) owes a duty
to people who come onto the property as visitors
