Chapter 6 - Negligence Flashcards
What is the tort of negligence?
Occurs when the defendant carelessly causes the plaintiff to suffer a loss or injury
What does the tort of negligence require the plaintiff to prove? 3 elements
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
How can a defendant be able to avoid liability by proving a defence that shows that the plaintiff? 3 ways
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
What is professional negligence?
Refers to negligence that is committed by a professional person such as a lawyer, it is not a separate tort
What is a duty of care?
Exists if the defendant is required to use reasonable care to avoid injuring the plaintiff
True or false: without a duty of care, liability still exists?
False, there cannot be liability
True or false: The Supreme Court does not hold that a pregnant women owes a duty of care to her unborn child?
True, anyone else including the mother after the baby is born does but not while pregnant
What is the test for the recognition of a duty of care?
Precedent, if there isn’t the new duty must consider: reasonable foreseeability, proximity and policy
What is the reasonable foreseeability test?
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
What is the proximity test? pg.141
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)
What are negligent misstatements?
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
How are careless statements different from carless actions?
Hidden dangers, volatility, and pure economic loss
How is hidden dangers different within a statement from an action?
Dangers associated with physical conduct are usually obvious. Risks associated with statements are often hidden, speak more loosely
How is volatility different within a statement from an action? p.142
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
How is economic losses different within a statement from an action?
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
When does Canadian courts apply special rules?
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
What is a disclaimer?
The defendant may issue a disclaimer along with its statement, to not be liable for a statement, an individual will disclaim responsibility
What are the two criteria that must be met in order for a duty of care to be recognized?
An Intended Audience and an Intended purpose
What is an intended audience?
The defendant must have known that the plaintiff might rely upon the statement
What is an intended purpose
The plaintiff must have relied upon that statement for its intended purposes
When is a duty of care imposed in respect to the type of statement?
Serious occasion statements, inquiry statements, financial benefit statements, and statements of fact or an opinion or prediction based on fact
What is the policy criteria of Duty of care? pg.144
The court will determine whether liability should be denied on policy grounds, will consider : floodgates, politics, and vulnerable relationships
What is the standard of care? and when is it breached
Tells the defendant how to act, the standard of care is breached when the defendant acts less carefully
What test is the standard of care based on?
The reasonable person test
What is the “Reasonable Person Test”?
Requires the defendant to act in the same way that a reasonable person would act in similar circumstances
Who is the “reasonable person”?
Someone who is prudent with a normal level of intelligence, acts in accord with general and approved practices
What are important factors within the “Reasonable Person Test”
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
What is the Sudden Peril Doctrine?
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
When will a duty of care be imposed on a professional?
The existence of a close relationship between the parties and the extent to which the client relied upon the professional
What is the standard of care that professionals are expected to meet?
On top of acting as a reasonable person would in similar circumstances, a professional must act as the reasonable professional would
What sort of information is the standard of care based on?
Information that was reasonable available to the defendant at the time of the accident, not in hindsight
True or false: carelessness is different from errors of judgment?
True, carelessness is held liable, while errors in judgment are not
When is the standard of care not breached?
When the defendant’s mistake is one that a reasonable professional might make
How else can a professional not be held liable?
A professional who follows an approve practice generally cannot be held liable or when a professional complies with a statutory standard
True or false: a person can be held not liable for something even if there was a breach of statutory duty?
True, the court can find that even though a statute is broken, the defendant acted with reasonable care
What is the implications of a breach of stature duty?
Breach of a statuary duty is only one factor to consider in determining whether the standard of care in negligence was met/not met
What does product liability mean?
Can occur when a person is injured by a product
What can a plaintiff sue for in regards to experiencing harm as a result of a product?
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
What must be proven in a case dealing with product liability?
It is enough that the contract was defective in a way that caused harm
What happens when the parties are not linked together by contract? Used a harmful product that was purchased from someone else
The plaintiff must sue for the tort of negligence. and therefore must prove that the injury was caused by the manufacturer’s carelessness
What is liability for breach of contract?
strict, does not have to prove that the defendant was carsless
What is tortious liability for defective products?
not strict, has to prove that the defendant was careless
When a person wants to sue in tort for product liability was must they use?
Use the action in negligence in order to sue in tort for product liability
True or false: there is a duty of car owed to a person who was injured by a defective product?
True, whether that person was the purchaser, consumer, or simply a bystander
What three ways does liability rely on the standard of care?
Manufacture, injury caused by design and failure to warn pg 150
How does liability arise in terms of manufacturing?
Impose liability if the defendant carless manufactured a product that injured the plaintiff
What is meant by Reasonable in circumstances (failure to warn)
The nature and extent of the warning depends upon the circumstances
True or false: no warning at all is required if a danger is obvious?
True, assumed to know that knives cut and matches burn
What is meant by foreseeable use (failure to warn)?
A warning is usually need only for a product’s intended use, but may required for a use that is united but foreseeable
What is meant by subsequent warning (failure to warn)?
A warning may be required even though the manufacture discovers the anger after the product has been sold (recalls)
What is meant by distributors (failure to warn)?
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?
What is meant by Learned Intermediary? ex: p.150
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
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?
True
What is the But-for test? study image on pg.152
Requires the plaintiff to prove that they would not have suffered a loss but for the defendant’s carelessness
What is the result in law for the but-for test?
Either the defendant cannot be held liable or the defendant may be held liable
What is required within the causation of harm factor?
Causation on a balance of probability
What is the all-or-nothing approach?
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
What does the plaintiff have to prove in respect to carelessness being a cause?
The plaintiff only has to prove that the defendant’s carelessness was a cause, not necessarily the only cause of a loss
What occurs when there are different defendants who cause different injuries?
Different defendants that cause the plaintiff to suffer different injuries are only liable for the injury they specifically caused
What occurs when different defendants cause the same single injury?
Defendants will be held jointly and severally liable, can receive all damages from one person or the other or a part from both
True or false: One defendant can demand money from the other defendant?
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
True or false: the court can reject the but-for test?
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
What does remoteness mean?
A loss is remote if it would be unfair to hold the defendant responsible for it
When can liability not be imposed?
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
In negligence cases, how is remoteness determined?
Consider whether the type of harm was a reasonably foreseeable result of the defendants carelessness (does not mean probable or likely)
When the type of harm is reasonable foreseeable, what is the result? pg.154
it becomes irrelevant that the manner in which it occurred was not reasonably foreseeable
What is a thin skull case?
Occurs if the plaintiff was unusually vulnerable to injury
When is the remoteness principle used?
To resolve thin skull cases and intervening acts
In the context of thin skull cases, when is a defendant responsible
Fully responsible for all of the plaintiff’s loses if it was reasonably foreseeable that a normal person would have suffered some damage
In the context of thin skull cases, when is a defendant NOT responsible at all
if a normal person would not have suffered any harm
What is an intervening act?
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
Although in an intervening act, a defendant is factually responsible, are they legally responsible?
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
What three defences are common in negligence torts?
Contributory negligence, voluntary assumption of risk and illegality
What is the defence of contributory negligence?
Occurs when a loss is caused partly by the defendant’s carelessness and partly by the plaintiffs own carelessness
What is the result of contributory negligence?
Apportionment, damages are reduced to extent of contributory negligence
What are the three cases when a plaintiff may be held contributorily negligent
Situation, Accident, Damage
What is meant by situation? (contributorily negligence)
The plaintiff may unreasonably step into a dangerous situation
What is meant by accident?(contributorily negligence)
The plaintiff may unreasonably contribute to the creation of an accident
What is meant by damage? (contributorily negligence)
The plaintiff may unreasonably contribute not to the creation of an accident, but to the damage that it causes
Is contributory negligence a complete defence?
Used to be Not anymore, the defendant still takes some responsibility and must still award some amount of damages
What do judges usually place contributory negligence at?
At less than 30 percent, a court is reluctant to further reduce the amount of compensation that is available to the plaintiff
What is the defence of voluntary assumption of risk? also called Volenti
Applies if the plaintiff freely agreed to accept a risk of injury. A complete defence, the plaintiff cannot recover any damages
What must the defendant prove using the volenti defence?
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
What is an exclusion clause?
Proves voluntary assumption of risk by the plaintiff
What is the defence of illegality?
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
