Chapter 5 - Negligence, Professional Liability and Insurance Flashcards
Negligence
inadvertent or unintentional careless conduct that causes injury or damage to another person or their property
4 elements to be established to succeed in negligence action
A - duty of care
B - reach of duty
C - ausation
D - amage
negligence requirements table
slide 6
Step 1 Negligence
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
Step 2 Breach of Duty
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”
Step 3 Causation
did the defendants failure cause the plaintiffs injury
assessed using the “but for” test
Step 4. Damages
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
reasonable foreseeability test
if it would be apparent to a prudent person that the conduct was likely to cause injury - a duty is owed
Anns case
- foreseeable injury and proximity
- provides for exceptions or modifications to the primary test for policy reasons
misfeasance
an act that causes harm to another (wrongdoing)
court will provide remedy
nonfeasance
a failure to prevent an injury
courts reluctant to provide remedy
reasonable conduct varies with
expertise of person bring sued
standard of care does not diminish in the case of an elderly person
expectations for children are lower
“but for” test
damage must be a direct result of the careless conduct
“but for” the conduct of the plaintiff, no jury would have resulted
thin skill rule
liable for the full extent of injuries suffered
four defences to a negligence claim
- voluntary assumption of risk
- contributory negligence
- illegality
- remoteness test
voluntary assumption of risk
- law will not assist those who volunteer to bear risk (waivers)
- defendant must show that plaintiff assumed the physical risk and legal risk
contributory negligence
courts apportion the loss between the parties
duty is owed to rescuers
illegality
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
remoteness test
whether the specific type of injury suffered was reasonably foreseeable
remoteness can arise twice in a negligence action
proximity of the parties (DOC)
as a factor in caustion (causation)
occupiers liability
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
duty of care and extends it to:
- condition of the premises
- activities on the premises
- conduct of third parties on the premises
inkeepers liability
duty of innkeepers to safeguard guests from wrongful acts of others
strict liability
liability when there is no fault
vicarious liability is a form of strict liability
product liability
plaintiff must establish that the manufacturer was negligent
negligent misstatement
people who suffer economic loss because of a professionals negligent statements may recover damages
fiduciary duty and breach of trust
a professional or expert must
act with loyalty and good faith
not use confidential info for own benefit
insurance
purpose to reduce the cost of loss by spreading the risk
duty of insured
must disclose pertinent info and changes in pertinent info
affects risk and insurance rates
duty of insurers
to process claims fairly
arrange legal rep and a defence for the insured
subrogation
insurer sues in the name of the insured the person who caused the loss
