Chapter Five-Negligence + Professional liability Flashcards
Negligence definition
Inadvertent careless conduct that causes injury or damage to another person or his property
Duty of Care
Defendant must have owed a duty of care to plaintiff
Reasonable foreseeability test
- injury to plaintiff is foreseeable
- proximity suggests that plaintiff should have been considered by defendant
Who do we owe a duty of care to?
Anyone we can reasonably anticipate may be harmed by our conduct
What exception does the Ann’s case add?
Allows court to consider social policy rather than strict legal rules (only applies to new scenarios with no precedent duty of care)
Misfeasance
Wrongful conduct
Nonfeasance
When there is no action
Standard of Care
Reasonable person test used by courts to establish sufficient care standard of a prudent person’s likely actions
Kids liability
What would a reasonable child of same age have done?
Res ispa loquitur
Thing speaks for itself
Causation
Negligence requires a loss, plaintiff must prove to court that but for the conduct complained of no injury would have resulted
Remoteness test
Determines legal causation, determines how far removed the act was from the injury
Thin skull rule
We take our victims as we find them doesn’t matter if we can’t understand the scope of their injuries
Crumbling skull rule
If they already had a deteriorating condition can’t sue for it necessarily
Defences to negligence
- volenti non fit injuria: defendant must show that the plaintiff not only assumed risk but also legal
- contributory negligence: the plaintiff was also negligent
- ex turpi causa (illegality) plaintiff was acting an illegal capacity
Occupiers liability in Alberta
Visitor is owed reasonable duty of care
Adult trespasser is owed no willful or reckless conduct
Strict liability
Situations where there is no fault on part of defendant who had acted reasonably but caused damage
Product liability
Necessary to establish fault when suing manufactures, must establish duty of care and if there was a failure to live up to that duty
Negligent misstatement
When a duty of care was owed to plaintiff, and the professional used negligent words
Someone will have been found to have committed negligence misstatement if
The defendant had direct or indirect financial interest in the transaction
Defendant was a professional
Advice was provided in course of business
Info was given deliberately
Information was given in response to s specific injury
If accountants don’t follow…
The GAAP or GAAS they can be found negligent usually
