Chapter 6 Flashcards
Negligence definition
The defendant carelessly caused the plaintiff to suffer loss or injury
For negligence the plaintiff must prove
Owed a duty of care to the plaintiff
Breached the standard of care required
Causation of harm to the plaintiff
Duty of care is exists when
exist when the defendant is required to use reasonable care to avoid injuring the plaintiff
No duty no liability
If no defined duty go through three stage test
Duty of care and contract relationship
Duty of care expand past contractual relationships?
You don’t need to be the one buying the product to sue
Three question duty of care test
ALL THREE NEED TO BE PASSED FOR DUTY TO EXIST
Is it reasonably foreseeable that the plaintive could be injured by the defendants carelessness?
Is there a relationship of proximity?
Are there policy reasons that duty should not exist?
Reasonably foreseeable Test
(includes neighbour Principe)
NP- duty of care is owed to those who could be foreseeably harmed by one’s actions
What a reasonable person in the defendants position know the injury was possible
This is not asking what the defendant personally knew or intended
Proximity test
There must be a close and direct connection between the party somehow
Product liability
May occur when a person is injured by a product
(this is not strict liability)
User does not need to be purchaser, but needs to prove causation by defendants carelessness
Product liability can occur as a result of failure to warn about potential danger
Policy reasons test
Even if the other two parts of the test are met, a duty will not exist if there are potential reasons it shouldn’t
Policy reasons consider the greater impact of the decision on the public
When it open the floodgates for unlimited cases? (pregnant mother case)
Do regulators owe the public a duty of care
Regulators do not owe a duty to individual members of the public, but to the public as a whole
Standard of care
What a reasonable person would do in similar circumstances with similar resources
The “reasonable person” isn’t
Not superhuman
Not required to display the highest skill of which anyone is capable
Not a genius
No powers to foresee unreasonably
The reasonable person is/does
Takes precautions against foreseeable risks
Takes into account likelihood and severity of potential harm
Need only take affordable precautions
Takes into account social utility and context
It’s not perfect in an emergency
Ex. A doctor on a plane helping someone is not health to the same standard as a doctor in a surgical suite.
The reasonable professional
Held to a bit higher of a standard
Consider experience
Knowledge at the time (account for hindside bias)
Errors of judgement (mistakes are allowed, carelessness is not)
Approved practice (learned procedures, or guidelines in profession)
Statutory standards (family doctor, verse brain surgeon)
Causation
Would the plaintiff have suffered the same loss if not for the defendant’s carelessness (but for Test)
Plaintiff does not need to prove that the defendants behaviour was the only cause of their harm
Appropriation between multiple defendants as possible (different injuries or causes assigned to different defendants)
- can collect from both or neither defendants in whatever %, one might be wealthier
Remoteness
Remotes on the other hand, assesses legal causation
- was it actually reasonably for seeable that the carelessness would cause the injury?
Defence to negligence
Contributory negligence
- When the loss is caused partly by defendants carelessness, and partially by plaintiff carelessness
Voluntary assumption of risk
- if plaintiff freely agreed to accept the risk of entry
Illegal behaviour
- plaintiff suffered loss while participating in an illegal act
Legal causation
Is it reasonably foreseeable that the carelessness would cause an injury
Factual causation
The but for test helps us determine factual causation
- did the carelessness actually cause the harm
