Chapter 6: Negligence Flashcards
Negligence
Determines whether the defendant can be held liable for carelessly causing injury to the plaintiff.
What does the tort of negligence require the plaintiff to prove?
- That they were owed a duty of care.
- The standard of care was breached.
- Harm was caused.
What are three possible defences to negligence?
- Contributory negligence.
- Voluntarily assuming risk.
- Was injured while engaged in some form of illegal behaviour.
Professional Negligence
Negligence that is committed by a professional person, such as a banker, a lawyer, or an accountant.
Duty of Care
Exists if the defendant is required to use reasonable care to avoid injuring the plaintiff.
Donoghue v Stevenson
Ginger beer and decomposed snail. and Erinn is bae.
Reasonable Foreseeability
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.
Proximity
There must somehow be a close and direct connection between the parties.
Types of proximity:
- Social relationship.
- Commercial relationship.
- Direct causal connection.
- Reliance on the defendant’s representation of their actions.
In the business context the best example of a breach to the duty of care for professional statements is ___ ___.
Negligent statements.
How are careless statements different from careless actions?
- Risks associated with actions are usually clearer than risks associated with statements.
- Risk created by a careless action is limited in time and space, while careless statements are not.
- Careless actions result in property damage or personal injuries, while careless statements usually result in pure economic losses.
Standard of Care
Tells the defendant how they should act.
Breach (of a standard of care)
The standard of care is breathed when the defendant acts less carefully.
Reasonable Person Test
Requires the defendant to act the same way that a reasonable person would act in similar circumstances.
True or false? The reasonable person test is subjective.
False.
The reasonable person takes precautions against ___ ___ risks.
Reasonably foreseeable.
How does the reasonable person test apply to professionals?
Professional people must act as the reasonable professional would act in similar circumstances.
Are allowances made for professionals who are beginners?
No.
What are the 5 factors that are looked at in professional negligence?
- Act as a reasonable professional would.
- Hindsight judging is unfair.
- Carelessness is different from errors of judgement.
- Those who followed approved practice cannot be held liable.
- Compliance with a statutory standard will protect a defendant.
Product Liability
Can occur when a person is injured by a product.
Liability for breach of contract is ___.
Strict.
Is tortious liability for defective products in Canada strict?
No.
Do courts impose liability if the defendant carelessly manufactured a product that injured the plaintiff?
Yes.
Do courts impose liability if the plaintiff’s injury was caused by design?
Courts are more cautious.
Are manufacturers required to put warning labels on matches or knives?
No, because it is assumed that people know they are dangerous.
Why do glue manufacturers have to put a label wanting of sniffing?
Because even though sniffing is not the intended use, it is foreseeable that some might abuse it in that way.
Who carries the burden to warn consumers?
Both the manufacturer and the distributor.
Are warning required if dangers are found after the product is distributed?
Yes.
But-For Test
Requires the plaintiff to prove that they would not have suffered a loss but for the defendant’s carelessness.
What are 5 factors to note about the causation of harm?
- It is calculated based on a balance of probabilities.
- It is all or nothing.
- Only need to prove defendant’s action was a cause, not the only cause.
- If different defendants are responsible for different harms, each is liable for the harms they caused.
- If different defendants create a single injury, two people can be held jointly and severally liable.
- A court can reject a but-for test if it leads to an unfair result.
Remote Loss
If a loss is remote, it would be unfair to hold the defendant responsible for it.
Thin Skull Case
Occurs if the plaintiff was unusually vulnerable to injury.
Intervening Act
Is an event that occurs after the defendant’s carelessness and that causes the plaintiff to suffer an additional injury.
What determines whether or not you are liable in a thin skull case?
If it wouldn’t have hurt a normal person, no liability. If it would have hurt a normal person (to any degree), fully liable.
Thin Wallet Principle
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.
I broke your leg. A week later, while using crutches, you fall and break your other leg. Which injuries am I responsible for?
Both (by the intervening act). It is reasonably foreseeable how the first injury caused the second, or that the first injury increased the risk.
What are 3 possible defences to negligence?
- Contributory negligence.
- Voluntary assumption of risk.
- Illegality.
Contributory Negligence
Loss is caused partly by the defendant’s carelessness and partly by the plaintiff’s carelessness.
Voluntary Assumption of Risk
Plaintiff freely agreed to accept the factual and legal risk of injury.
Illegality
Plaintiff suffered a loss while participating in an illegal act.
What is the effect of the contributory negligence defence?
Apportionment (damages reduced to extent of contributory negligence).
What is the effect of the voluntary assumption of risk defence?
Complete (defendant not liable).
What is the effect of the illegality defence?
Complete (defence not liable).
Give an example of when a plaintiff unreasonably steps into a dangerous situation:
When a sober person accepts a ride from a drunk driver, who drives into a wall.
Give an example of when a plaintiff unreasonably contributes to the creation of an accident:
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.
Give an example of when a plaintiff unreasonably contributes not to the creation of an accident, but to the damage that it causes:
When a passenger in a carelessly driven car suffers unusually severe head injuries after refusing to wear a seatbelt.
The best way of proving the voluntary assumption of risk is to show that the plaintiff…
Signed an exclusion clause.
A duty of care is imposed if:
- It was reasonably foreseeable that the defendant’s careless actions might hurt the plaintiff.
- If there was proximity between the parties.
- There was no compelling policy reasons for refusing to impose a duty.
