Chapter 5 - Negligence, Professional Liability and Insurance

Question 1

Negligence

Answer 1

inadvertent or unintentional careless conduct that causes injury or damage to another person or their property

Question 2

4 elements to be established to succeed in negligence action

Answer 2

A - duty of care
B - reach of duty
C - ausation
D - amage

Question 3

negligence requirements table

Answer 3

slide 6

Question 4

Step 1 Negligence

Answer 4

Is there a duty of care owed by defendant?

is there a reasonable forseeability of harm

if yes, are there any social policies that reject the duty of care

Question 5

Step 2 Breach of Duty

Answer 5

did the defendant breach their standard of care

did the defendant fail to uphold the standard of care

assessed using the “reasonable person test” or the “reasonable profession test”

Question 6

Step 3 Causation

Answer 6

did the defendants failure cause the plaintiffs injury

assessed using the “but for” test

Question 7

Step 4. Damages

Answer 7

injury (physical, mental, property and/or economic loss)

did the plaintiff suffer an injury

level of compensation may be influenced by
- crumbling skull rule
- thin skull rule

Question 8

reasonable foreseeability test

Answer 8

if it would be apparent to a prudent person that the conduct was likely to cause injury - a duty is owed

Question 9

Anns case

Answer 9

1. foreseeable injury and proximity
2. provides for exceptions or modifications to the primary test for policy reasons

Question 10

misfeasance

Answer 10

an act that causes harm to another (wrongdoing)
court will provide remedy

Question 11

nonfeasance

Answer 11

a failure to prevent an injury
courts reluctant to provide remedy

Question 12

reasonable conduct varies with

Answer 12

expertise of person bring sued
standard of care does not diminish in the case of an elderly person
expectations for children are lower

Question 13

“but for” test

Answer 13

damage must be a direct result of the careless conduct

“but for” the conduct of the plaintiff, no jury would have resulted

Question 14

thin skill rule

Answer 14

liable for the full extent of injuries suffered

Question 15

four defences to a negligence claim

Answer 15

1. voluntary assumption of risk
2. contributory negligence
3. illegality
4. remoteness test

Question 16

voluntary assumption of risk

Answer 16

• law will not assist those who volunteer to bear risk (waivers)
• defendant must show that plaintiff assumed the physical risk and legal risk

Question 17

contributory negligence

Answer 17

courts apportion the loss between the parties

duty is owed to rescuers

Question 18

illegality

Answer 18

courts will not hear a lawsuit brought by a party engaged in lawful activity

illegal conduct must cause loss to plaintiff before the defence will operate

Question 19

remoteness test

Answer 19

whether the specific type of injury suffered was reasonably foreseeable

Question 20

remoteness can arise twice in a negligence action

Answer 20

proximity of the parties (DOC)
as a factor in caustion (causation)

Question 21

occupiers liability

Answer 21

in common law, an occupier of property owes a duty to people who come onto the property as visitors

occupiers must take reasonable steps to protect all classes of visitors of their property

Question 22

duty of care and extends it to:

Answer 22

1. condition of the premises
2. activities on the premises
3. conduct of third parties on the premises

Question 23

inkeepers liability

Answer 23

duty of innkeepers to safeguard guests from wrongful acts of others

Question 24

strict liability

Answer 24

liability when there is no fault

vicarious liability is a form of strict liability

Question 25

product liability

Answer 25

plaintiff must establish that the manufacturer was negligent

Question 26

negligent misstatement

Answer 26

people who suffer economic loss because of a professionals negligent statements may recover damages

Question 27

fiduciary duty and breach of trust

Answer 27

a professional or expert must

act with loyalty and good faith
not use confidential info for own benefit

Question 28

insurance

Answer 28

purpose to reduce the cost of loss by spreading the risk

Question 29

duty of insured

Answer 29

must disclose pertinent info and changes in pertinent info
affects risk and insurance rates

Question 30

duty of insurers

Answer 30

to process claims fairly
arrange legal rep and a defence for the insured

Question 31

subrogation

Answer 31

insurer sues in the name of the insured the person who caused the loss