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Business Law 101 > Chapter 6 - Negligence > Flashcards

Chapter 6 - Negligence Flashcards

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1
Q

What is the tort of negligence?

A

Occurs when the defendant carelessly causes the plaintiff to suffer a loss or injury

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2
Q

What does the tort of negligence require the plaintiff to prove? 3 elements

A

That the defendant: owed a duty of care that required the defendant to act carefully toward the plaintiff, breached the standard of care by acting carelessly, and caused harm to the plaintiff

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3
Q

How can a defendant be able to avoid liability by proving a defence that shows that the plaintiff? 3 ways

A

Plaintiff was guilty of contributory negligence that caused or contributed to the injury, voluntarily assumed the risk of being injured by the defendant, was injured while engaged in some form of illegal behaviour

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4
Q

What is professional negligence?

A

Refers to negligence that is committed by a professional person such as a lawyer, it is not a separate tort

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5
Q

What is a duty of care?

A

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

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6
Q

True or false: without a duty of care, liability still exists?

A

False, there cannot be liability

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7
Q

True or false: The Supreme Court does not hold that a pregnant women owes a duty of care to her unborn child?

A

True, anyone else including the mother after the baby is born does but not while pregnant

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8
Q

What is the test for the recognition of a duty of care?

A

Precedent, if there isn’t the new duty must consider: reasonable foreseeability, proximity and policy

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9
Q

What is the reasonable foreseeability test?

A

Objective, concerned with whether a reasonable person in the defendant’s position would have recognized that possibility, people can’t take precautions for a hidden danger

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10
Q

What is the proximity test? pg.141

A

Must be a close and direct connection between the parties. Including: physical proximity, social relationship, commercial relationship?, or direct causal connection, reliance on representation (rely that the defendant would act in a certain way, railway company and a safe gate)

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11
Q

What are negligent misstatements?

A

A false statement of fact made honestly but carelessly. A negligent misstatement is only actionable in tort if there has been breach of a duty to take care in making the statement that has caused damage to the claimant. Made in circumstances that made it reasonable to rely on them

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12
Q

How are careless statements different from carless actions?

A

Hidden dangers, volatility, and pure economic loss

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13
Q

How is hidden dangers different within a statement from an action?

A

Dangers associated with physical conduct are usually obvious. Risks associated with statements are often hidden, speak more loosely

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14
Q

How is volatility different within a statement from an action? p.142

A

The risk created by a careless action is limited to time and space. Risk of a careless statement is liable for an indeterminate amount of for an indeterminate time to an indeterminate class

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15
Q

How is economic losses different within a statement from an action?

A

Careless actions usually result in property damage or personal injuries. Careless statement usually result in pure economic losses - financial losses not tied to any property damage or personal injuries

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16
Q

When does Canadian courts apply special rules?

A

Apply special rules when deciding whether to recognize a duet of care if the defendant’s careless statement caused the plaintiff to suffer a pure economic loss

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17
Q

What is a disclaimer?

A

The defendant may issue a disclaimer along with its statement, to not be liable for a statement, an individual will disclaim responsibility

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18
Q

What are the two criteria that must be met in order for a duty of care to be recognized?

A

An Intended Audience and an Intended purpose

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19
Q

What is an intended audience?

A

The defendant must have known that the plaintiff might rely upon the statement

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20
Q

What is an intended purpose

A

The plaintiff must have relied upon that statement for its intended purposes

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21
Q

When is a duty of care imposed in respect to the type of statement?

A

Serious occasion statements, inquiry statements, financial benefit statements, and statements of fact or an opinion or prediction based on fact

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22
Q

What is the policy criteria of Duty of care? pg.144

A

The court will determine whether liability should be denied on policy grounds, will consider : floodgates, politics, and vulnerable relationships

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23
Q

What is the standard of care? and when is it breached

A

Tells the defendant how to act, the standard of care is breached when the defendant acts less carefully

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24
Q

What test is the standard of care based on?

A

The reasonable person test

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25
Q

What is the “Reasonable Person Test”?

A

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

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26
Q

Who is the “reasonable person”?

A

Someone who is prudent with a normal level of intelligence, acts in accord with general and approved practices

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27
Q

What are important factors within the “Reasonable Person Test”

A

The reasonable person is objective, takes precautions against reasonably foreseeable risks and considers likelihood and severity of harm (takes greater care in response), adopt affordable precautions and act in a way that has great social utility

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28
Q

What is the Sudden Peril Doctrine?

A

The standard of care requires the defendant to act as the reasonable person would act “in similar circumstances”. The doctrine states that even a reasonable person may make a mistaker under difficult circumstances

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29
Q

When will a duty of care be imposed on a professional?

A

The existence of a close relationship between the parties and the extent to which the client relied upon the professional

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30
Q

What is the standard of care that professionals are expected to meet?

A

On top of acting as a reasonable person would in similar circumstances, a professional must act as the reasonable professional would

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31
Q

What sort of information is the standard of care based on?

A

Information that was reasonable available to the defendant at the time of the accident, not in hindsight

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32
Q

True or false: carelessness is different from errors of judgment?

A

True, carelessness is held liable, while errors in judgment are not

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33
Q

When is the standard of care not breached?

A

When the defendant’s mistake is one that a reasonable professional might make

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34
Q

How else can a professional not be held liable?

A

A professional who follows an approve practice generally cannot be held liable or when a professional complies with a statutory standard

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35
Q

True or false: a person can be held not liable for something even if there was a breach of statutory duty?

A

True, the court can find that even though a statute is broken, the defendant acted with reasonable care

36
Q

What is the implications of a breach of stature duty?

A

Breach of a statuary duty is only one factor to consider in determining whether the standard of care in negligence was met/not met

37
Q

What does product liability mean?

A

Can occur when a person is injured by a product

38
Q

What can a plaintiff sue for in regards to experiencing harm as a result of a product?

A

The plaintiff can sue for a breach of contract and does not have to prove that the defendant carelessly provided a defective product. But must be the person who actually purchased the item

39
Q

What must be proven in a case dealing with product liability?

A

It is enough that the contract was defective in a way that caused harm

40
Q

What happens when the parties are not linked together by contract? Used a harmful product that was purchased from someone else

A

The plaintiff must sue for the tort of negligence. and therefore must prove that the injury was caused by the manufacturer’s carelessness

41
Q

What is liability for breach of contract?

A

strict, does not have to prove that the defendant was carsless

42
Q

What is tortious liability for defective products?

A

not strict, has to prove that the defendant was careless

43
Q

When a person wants to sue in tort for product liability was must they use?

A

Use the action in negligence in order to sue in tort for product liability

44
Q

True or false: there is a duty of car owed to a person who was injured by a defective product?

A

True, whether that person was the purchaser, consumer, or simply a bystander

45
Q

What three ways does liability rely on the standard of care?

A

Manufacture, injury caused by design and failure to warn pg 150

46
Q

How does liability arise in terms of manufacturing?

A

Impose liability if the defendant carless manufactured a product that injured the plaintiff

47
Q

What is meant by Reasonable in circumstances (failure to warn)

A

The nature and extent of the warning depends upon the circumstances

48
Q

True or false: no warning at all is required if a danger is obvious?

A

True, assumed to know that knives cut and matches burn

49
Q

What is meant by foreseeable use (failure to warn)?

A

A warning is usually need only for a product’s intended use, but may required for a use that is united but foreseeable

50
Q

What is meant by subsequent warning (failure to warn)?

A

A warning may be required even though the manufacture discovers the anger after the product has been sold (recalls)

51
Q

What is meant by distributors (failure to warn)?

A

A warning may be required not only be a manufacture, but also by someone who sells, distributes, or installs a product, did they or should they have known the danger?

52
Q

What is meant by Learned Intermediary? ex: p.150

A

Sometimes, a defendant can avoid liability if they provided a warning to a learned intermediary, meaning the rule may apply if a product is sold to a professional rather than directly to the intended consumer

53
Q

True or false: even if it owed a duty of care and breached the standard of care, the defendant will not be held liable unless its carelessness caused the plaintiff to suffer a loss?

A

True

54
Q

What is the But-for test? study image on pg.152

A

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

55
Q

What is the result in law for the but-for test?

A

Either the defendant cannot be held liable or the defendant may be held liable

56
Q

What is required within the causation of harm factor?

A

Causation on a balance of probability

57
Q

What is the all-or-nothing approach?

A

If there is at least a 51% chance that the defendant’s carelessness caused the plaintiff’s loss, then the could will awarenesses damages for all of that loss, if less than 51% then the court will not award damages for any of the loss

58
Q

What does the plaintiff have to prove in respect to carelessness being a cause?

A

The plaintiff only has to prove that the defendant’s carelessness was a cause, not necessarily the only cause of a loss

59
Q

What occurs when there are different defendants who cause different injuries?

A

Different defendants that cause the plaintiff to suffer different injuries are only liable for the injury they specifically caused

60
Q

What occurs when different defendants cause the same single injury?

A

Defendants will be held jointly and severally liable, can receive all damages from one person or the other or a part from both

61
Q

True or false: One defendant can demand money from the other defendant?

A

True, in the case that the court said one was 30% to blame and the other was 70% to blame, if the plaintiff received All of their damages from the 30%person, the 30% could demand that 70% of the damages from the 70%person

62
Q

True or false: the court can reject the but-for test?

A

True, if it would lead to an unfair result , but the court would probably still hold both people liable and allow the plaintiff to receive all of their damages from either defendant or both

63
Q

What does remoteness mean?

A

A loss is remote if it would be unfair to hold the defendant responsible for it

64
Q

When can liability not be imposed?

A

Even if the defendant caused the plaintiff to suffer a loose, liability will not be imposed If the loss was too remote from the careless conduct

65
Q

In negligence cases, how is remoteness determined?

A

Consider whether the type of harm was a reasonably foreseeable result of the defendants carelessness (does not mean probable or likely)

66
Q

When the type of harm is reasonable foreseeable, what is the result? pg.154

A

it becomes irrelevant that the manner in which it occurred was not reasonably foreseeable

67
Q

What is a thin skull case?

A

Occurs if the plaintiff was unusually vulnerable to injury

68
Q

When is the remoteness principle used?

A

To resolve thin skull cases and intervening acts

69
Q

In the context of thin skull cases, when is a defendant responsible

A

Fully responsible for all of the plaintiff’s loses if it was reasonably foreseeable that a normal person would have suffered some damage

70
Q

In the context of thin skull cases, when is a defendant NOT responsible at all

A

if a normal person would not have suffered any harm

71
Q

What is an intervening act?

A

An event that occurs after the defendant’s carelessness and that causes the plaintiff to suffer an additional injury. The defendant becomes factually responsible for the second injury

72
Q

Although in an intervening act, a defendant is factually responsible, are they legally responsible?

A

Must consider remoteness, is it reasonably foreseeable that the initial carelessness caused the later injury, liability will be imposed if the original negligence increased the risk of the subsequent injury

73
Q

What three defences are common in negligence torts?

A

Contributory negligence, voluntary assumption of risk and illegality

74
Q

What is the defence of contributory negligence?

A

Occurs when a loss is caused partly by the defendant’s carelessness and partly by the plaintiffs own carelessness

75
Q

What is the result of contributory negligence?

A

Apportionment, damages are reduced to extent of contributory negligence

76
Q

What are the three cases when a plaintiff may be held contributorily negligent

A

Situation, Accident, Damage

77
Q

What is meant by situation? (contributorily negligence)

A

The plaintiff may unreasonably step into a dangerous situation

78
Q

What is meant by accident?(contributorily negligence)

A

The plaintiff may unreasonably contribute to the creation of an accident

79
Q

What is meant by damage? (contributorily negligence)

A

The plaintiff may unreasonably contribute not to the creation of an accident, but to the damage that it causes

80
Q

Is contributory negligence a complete defence?

A

Used to be Not anymore, the defendant still takes some responsibility and must still award some amount of damages

81
Q

What do judges usually place contributory negligence at?

A

At less than 30 percent, a court is reluctant to further reduce the amount of compensation that is available to the plaintiff

82
Q

What is the defence of voluntary assumption of risk? also called Volenti

A

Applies if the plaintiff freely agreed to accept a risk of injury. A complete defence, the plaintiff cannot recover any damages

83
Q

What must the defendant prove using the volenti defence?

A

Prove that the plaintiff expressly or implicitly agreed to accept both the physical and legal risk of injury. The plaintiff must have agreed to give up the right sue the defendant for negligence

84
Q

What is an exclusion clause?

A

Proves voluntary assumption of risk by the plaintiff

85
Q

What is the defence of illegality?

A

May apply if the plaintiff suffered a loss while participating in an illegal act. A complete defence. Only applies when the plaintiff tries to either profit from their illegal act or avoid a criminal penalty

Business Law 101 (6 decks)

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