Module 8 (3&4) Flashcards
What are the first two elements of negligence?
1) duty of care
2) standard of care
When are you negligent?
When you create an unreasonable tisk towards a person to whom you owed a duty to take care
What does a duty of care require?
Some kind of relationship between the plaintiff and the defendant
You must take resonable care to avoid acts or omissions which you can reasonably ______ would be likely to injure your _______
Foresee ; Neighbour
There are established dutys of cares ex. a doctor to a patient. When there is a new duty of care, the plaintif needs to establish what three things…
1) That the defendant could have reasonalby forseen the injury
2) The relatioship between the defendant and the plaintiff is sufficiently close
3) Policy considerations justify recognizing the new duty of care
Explain the Dobson v Dobson case
A monther was charged by her child for mental and physical impairments he suffered from being premature.
The premature birth was a result of a car accident by the mothers negligant driving.
But the court decided because of broader policy considerations (additional burdens to pregnant woman, possiblr psychological consequences) meant that this new duty of care was insufficient.
What is the Standard of Care?
The level of the duty of care. Conduc that falls below a certain standard of care may be considered negligent
What factors do courts consider when determining how those who owe a duty of care to others should behave in order not to be found negligent (in an activity)
1) the risk of injury of the activity
2) is there any social benefits from the activity eg. a hotel doesnt have much of a social benefit than a hospital or school
3) the extent to which others have acted similary
4) laws and regulations governing the activity and whether theyve been followed or ignored
What are the next two elements of negligence?
Causation in fact, and Causatrion in law
What does the Causation in fact ask?
asks whether a defendants wrongful act produced the plaintiffs injury
What is the test we use to test the causation in fact?
The “But for-“ test
we ask if the plaintifs injurty would have occurred, but for the defendants act.
(if the injury would have occurred anyways, there is no casuation and no negligence)
What is Causation in Law cocnerned with?
It’s concerned with the kind of injurys that are reasonably forseeable.
What does the Plaintiff have to show in the Causation of Law?
The plaintiff has to show that the type of injury falls within the risk created by the defendant, is it too remote for the defendants conduct?
What does it mean for a damage being remote?
Remote means far away, the defendant is not liable for EVERY consequence for a breach in the duty that they casued
What is the test we use to test for remoteness?
The test is whether the harm is ‘resonably forseeable’ = a reasonable person would see the real risk in the possition of the defenant
