Chapter 6: Negligence

Question 1

Negligence

Answer 1

Determines whether the defendant can be held liable for carelessly causing injury to the plaintiff.

Question 2

What does the tort of negligence require the plaintiff to prove?

Answer 2

1. That they were owed a duty of care.
2. The standard of care was breached.
3. Harm was caused.

Question 3

What are three possible defences to negligence?

Answer 3

1. Contributory negligence.
2. Voluntarily assuming risk.
3. Was injured while engaged in some form of illegal behaviour.

Question 4

Professional Negligence

Answer 4

Negligence that is committed by a professional person, such as a banker, a lawyer, or an accountant.

Question 5

Duty of Care

Answer 5

Exists if the defendant is required to use reasonable care to avoid injuring the plaintiff.

Question 6

Donoghue v Stevenson

Answer 6

Ginger beer and decomposed snail. and Erinn is bae.

Question 7

Reasonable Foreseeability

Answer 7

An objective test that tests not whether the defendant personally knew that its actions might injure the plaintiff, but rather whether a reasonable person in the defendant’s position would have recognized that possibility.

Question 8

Proximity

Answer 8

There must somehow be a close and direct connection between the parties.

Question 9

Types of proximity:

Answer 9

• Social relationship.
• Commercial relationship.
• Direct causal connection.
• Reliance on the defendant’s representation of their actions.

Question 10

In the business context the best example of a breach to the duty of care for professional statements is ___ ___.

Answer 10

Negligent statements.

Question 11

How are careless statements different from careless actions?

Answer 11

1. Risks associated with actions are usually clearer than risks associated with statements.
2. Risk created by a careless action is limited in time and space, while careless statements are not.
3. Careless actions result in property damage or personal injuries, while careless statements usually result in pure economic losses.

Question 12

Standard of Care

Answer 12

Tells the defendant how they should act.

Question 13

Breach (of a standard of care)

Answer 13

The standard of care is breathed when the defendant acts less carefully.

Question 14

Reasonable Person Test

Answer 14

Requires the defendant to act the same way that a reasonable person would act in similar circumstances.

Question 15

True or false? The reasonable person test is subjective.

Answer 15

False.

Question 16

The reasonable person takes precautions against ___ ___ risks.

Answer 16

Reasonably foreseeable.

Question 17

How does the reasonable person test apply to professionals?

Answer 17

Professional people must act as the reasonable professional would act in similar circumstances.

Question 18

Are allowances made for professionals who are beginners?

Answer 18

No.

Question 19

What are the 5 factors that are looked at in professional negligence?

Answer 19

1. Act as a reasonable professional would.
2. Hindsight judging is unfair.
3. Carelessness is different from errors of judgement.
4. Those who followed approved practice cannot be held liable.
5. Compliance with a statutory standard will protect a defendant.

Question 20

Product Liability

Answer 20

Can occur when a person is injured by a product.

Question 21

Liability for breach of contract is ___.

Answer 21

Strict.

Question 22

Is tortious liability for defective products in Canada strict?

Answer 22

No.

Question 23

Do courts impose liability if the defendant carelessly manufactured a product that injured the plaintiff?

Answer 23

Yes.

Question 24

Do courts impose liability if the plaintiff’s injury was caused by design?

Answer 24

Courts are more cautious.

Question 25

Are manufacturers required to put warning labels on matches or knives?

Answer 25

No, because it is assumed that people know they are dangerous.

Question 26

Why do glue manufacturers have to put a label wanting of sniffing?

Answer 26

Because even though sniffing is not the intended use, it is foreseeable that some might abuse it in that way.

Question 27

Who carries the burden to warn consumers?

Answer 27

Both the manufacturer and the distributor.

Question 28

Are warning required if dangers are found after the product is distributed?

Answer 28

Yes.

Question 29

But-For Test

Answer 29

Requires the plaintiff to prove that they would not have suffered a loss but for the defendant’s carelessness.

Question 30

What are 5 factors to note about the causation of harm?

Answer 30

1. It is calculated based on a balance of probabilities.
2. It is all or nothing.
3. Only need to prove defendant’s action was a cause, not the only cause.
4. If different defendants are responsible for different harms, each is liable for the harms they caused.
5. If different defendants create a single injury, two people can be held jointly and severally liable.
6. A court can reject a but-for test if it leads to an unfair result.

Question 31

Remote Loss

Answer 31

If a loss is remote, it would be unfair to hold the defendant responsible for it.

Question 32

Thin Skull Case

Answer 32

Occurs if the plaintiff was unusually vulnerable to injury.

Question 33

Intervening Act

Answer 33

Is an event that occurs after the defendant’s carelessness and that causes the plaintiff to suffer an additional injury.

Question 34

What determines whether or not you are liable in a thin skull case?

Answer 34

If it wouldn’t have hurt a normal person, no liability. If it would have hurt a normal person (to any degree), fully liable.

Question 35

Thin Wallet Principle

Answer 35

Courts traditionally have not accepted this, but recently have started to look at it. The idea that plaintiff suffered harm to an unusual extent because they are poor.

Question 36

I broke your leg. A week later, while using crutches, you fall and break your other leg. Which injuries am I responsible for?

Answer 36

Both (by the intervening act). It is reasonably foreseeable how the first injury caused the second, or that the first injury increased the risk.

Question 37

What are 3 possible defences to negligence?

Answer 37

1. Contributory negligence.
2. Voluntary assumption of risk.
3. Illegality.

Question 38

Contributory Negligence

Answer 38

Loss is caused partly by the defendant’s carelessness and partly by the plaintiff’s carelessness.

Question 39

Voluntary Assumption of Risk

Answer 39

Plaintiff freely agreed to accept the factual and legal risk of injury.

Question 40

Illegality

Answer 40

Plaintiff suffered a loss while participating in an illegal act.

Question 41

What is the effect of the contributory negligence defence?

Answer 41

Apportionment (damages reduced to extent of contributory negligence).

Question 42

What is the effect of the voluntary assumption of risk defence?

Answer 42

Complete (defendant not liable).

Question 43

What is the effect of the illegality defence?

Answer 43

Complete (defence not liable).

Question 44

Give an example of when a plaintiff unreasonably steps into a dangerous situation:

Answer 44

When a sober person accepts a ride from a drunk driver, who drives into a wall.

Question 45

Give an example of when a plaintiff unreasonably contributes to the creation of an accident:

Answer 45

When a passenger in the back of an open bed truck is thrown to the ground after carelessly standing while the driver took a corner too quickly.

Question 46

Give an example of when a plaintiff unreasonably contributes not to the creation of an accident, but to the damage that it causes:

Answer 46

When a passenger in a carelessly driven car suffers unusually severe head injuries after refusing to wear a seatbelt.

Question 47

The best way of proving the voluntary assumption of risk is to show that the plaintiff…

Answer 47

Signed an exclusion clause.

Question 48

A duty of care is imposed if:

Answer 48

1. It was reasonably foreseeable that the defendant’s careless actions might hurt the plaintiff.
2. If there was proximity between the parties.
3. There was no compelling policy reasons for refusing to impose a duty.