NEGLIGENCE Flashcards
negligence
= the careless causing of harm to the person or property of another
4 part test for negligence:
- the defendant owed the plaintiff a duty of care
- the defendant breached that duty of care by falling below the standard of care
- damages/injury are caused
- the defendant’s actions caused the damages/injury
Duty of care (definition)
= a relationship so close that one could reasonably foresee causing harm to the other
Donaghue v. Stevenson [1932]
neighbour in law (definition)
= persons who are so closely and directly affected by my act that I should reasonably consider how they might be affected when deciding what to do or not do
Test of Duty of Care
- Is there a close relationship between the parties so that it was reasonably foreseeable and if it was reasonably foreseeable that the defendants conduct would cause harm to the plaintiff
- Are there any considerations which limit
a) the scope of the duty
b) the class of persons to whom it is owed
c) the damages to which a breach of it may give rise
Standard of care
compared to the level of care that a reasonable person would take in the same circumstance
Professional Negligence
- professionals (i.e. doctors, lawyers, accountants) may be held to a higher standard and must avoid conflicts of interest.
- specialists within fields of expertise are held to a higher standard than generalists
EX: a heart surgeon has a higher standard of care than a family doctor when completing heart surgery
Causation (definition)
= connection between the injury and the breach of the standard of care
“but for” test:
Would the injury have occurred “but for” for the conduct of the defendant? If yes, then this is the cause of the loss/harm.
material contribution test (multiple defendants)
2 people throw rocks at one person, hard to prove which one threw the rock that hit him –> both are liable
Remoteness of Damage
- reasonable foreseeability test: unusual or extreme reactions will be considered too remote (you get a heart attack when you hear a balloon pop)
Thin skull doctrine
= the unexpected frailty of the injured person is not a valid defense to the seriousness of any injury caused to them
Thin skull vs remoteness
Thin skull rule says if it’s foreseeable that you can cause this type of injury, but the severity is much larger you’re going to be liable for it, whereas remoteness is saying the type of injury itself is not foreseeable. One damage is mental and the other is physical.
5 Defences to negligence:
- contributory negligence – plaintiff contributed to their injuries and is therefore unable to recover damages fully
- proportional liability – you think someone is 80% liable
- voluntary assumption of risk – plaintiff knew of a risk and voluntarily assumed it, barred from recovery
- ex turpi causa – a plaintiff is barred from recovery if injured during an illegal activity
- consent – if the plaintiff consents to a tortious, no wrong is committed, and the plaintiff is barred from recovery
Product Liability - 3 types of negligence
- negligent design
- negligent manufacture
- failure to warn
duty to warn
= manufacturer’s responsibility to make users aware of risks associated with the use or misuse of the product (tobacco)
- you must show that the warning was deficient and that if there was a proper warning they would not have used the product
When do you have duty to warn?
Dangerous products, products that are discovered to be defective, and scientific and technological advancements
Occupier’s liability
- duty of care owed by persons who occupy the property to persons who enter those premises
occupier = person who has control over the property - trespassers who are not legally on the property are still owed a duty of general humanity
- occupier cannot set traps – no deliberate harm otherwise, the standard of care is minimal
3 types of damages:
- special (pecuniary): money to compensate for quantifiable damages (e.g., physiotherapy receipt)
- general: not quantifiable (e.g., lost an arm)
- punitive (rare): awarded with the intention of punishing a wrongdoer, punishment for egregious conduct
Circumstantial Evidence
= any item of evidence, testimonial other than the testimony of an eyewitness
- a plaintiff can meet the burden of proof by using circumstantial evidence to show that the defendant’s negligence was the most likely cause of the injury
Business-related torts
- inducing breach of contract
- unlawful interference with economic relations: Using threats or other unlawful means to convince another party to cease doing business with someone else
- product defamation: one party intentionally makes untrue or disparaging remarks about another’s product in advertising their own product
- passing-off: representing one’s own product as that of another (i.e. Trademark infringement)
4 elements of Inducing breach of contract
- The Defendant had knowledge of the contract between the Plaintiff and a Third Party;
- The Defendant intended to procure a breach of that contract;
- The Defendant’s conduct caused the third-party to breach the contract; and
- The Plaintiff suffered damages due to the breach.
2 types of misrepresentation
- if intentionally untrue (i.e. a lie): fraudulent misrepresentation
- if carelessly untrue: negligent misrepresentation (poor advice leads to financial loss)
Negligent Misrepresentation test (6)
(1) A statement is made
(2) The statement is false
(3) The maker of the statement must owe the hearer of the Statement a duty of care
Are there any policy considerations that may limit liability? (after Hercules)
(4) The hearer of the statement must reasonably act on the statement
(5) And the Statement fell below the standard of care
(6) The hearer of the statement must suffer a loss as a result of their acting on the statement
5 elements of Fraudulent Misrepresentation
(1) A statement is made
(2) The statement is false;
(3) The defendant knows the statement to be false;
(4) The hearer of the statement must reasonably act on the statement
(5) The hearer of the statement must suffer a loss as a result of their acting on the statement
reliance vs detrimental reliance
reliance = acting in a certain way because one believed the information received
detrimental reliance = the worsening of one’s situation after acting upon false information
Is Fiduciary Duty connected to negligence?
no
fiduciary (definition)
= someone who stands in a special relationship of trust with another person (a parent, a doctor, a trustee) , a beneficiary
Fiduciary Duty
- there can be a breach of fiduciary duty and/or a breach of the standard of care (they are separate concepts)
- must place the beneficiary’s interest before the fiduciary’s interests or any other interest except the law
- no conflict of interest
3 characteristics to determine who is a fiduciary
(1) Has the scope for the exercise of power
(2) Can exercise that power to affect the beneficiary’s legal or practical interests
(3) The beneficiary is at the mercy of the fiduciary holding the power
Conflict of interest (definition)
= a duty is owed to a client whose interests conflict with the interests of the professional, another client, or another person to whom a duty is owed
third-party liability (definition, examples)
= liability to some other person who stands outside a contractual relationship
- accountants, real estate agents, insurance agents
duty to account (definition)
= the duty of a person who commits a breach of trust to hand over any profits derived from the breach
