NEGLIGENCE

Question 1

negligence

Answer 1

= the careless causing of harm to the person or property of another

Question 2

4 part test for negligence:

Answer 2

1. the defendant owed the plaintiff a duty of care
2. the defendant breached that duty of care by falling below the standard of care
3. damages/injury are caused
4. the defendant’s actions caused the damages/injury

Question 3

Duty of care (definition)

Answer 3

= a relationship so close that one could reasonably foresee causing harm to the other
Donaghue v. Stevenson [1932]

Question 4

neighbour in law (definition)

Answer 4

= 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

Question 5

Test of Duty of Care

Answer 5

1. 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
2. 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

Question 6

Standard of care

Answer 6

compared to the level of care that a reasonable person would take in the same circumstance

Question 7

Professional Negligence

Answer 7

• 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

Question 8

Causation (definition)

Answer 8

= connection between the injury and the breach of the standard of care

Question 9

“but for” test:

Answer 9

Would the injury have occurred “but for” for the conduct of the defendant? If yes, then this is the cause of the loss/harm.

Question 10

material contribution test (multiple defendants)

Answer 10

2 people throw rocks at one person, hard to prove which one threw the rock that hit him –> both are liable

Question 11

Remoteness of Damage

Answer 11

• reasonable foreseeability test: unusual or extreme reactions will be considered too remote (you get a heart attack when you hear a balloon pop)

Question 12

Thin skull doctrine

Answer 12

= the unexpected frailty of the injured person is not a valid defense to the seriousness of any injury caused to them

Question 13

Thin skull vs remoteness

Answer 13

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.

Question 14

5 Defences to negligence:

Answer 14

1. contributory negligence – plaintiff contributed to their injuries and is therefore unable to recover damages fully
2. proportional liability – you think someone is 80% liable
3. voluntary assumption of risk – plaintiff knew of a risk and voluntarily assumed it, barred from recovery
4. ex turpi causa – a plaintiff is barred from recovery if injured during an illegal activity
5. consent – if the plaintiff consents to a tortious, no wrong is committed, and the plaintiff is barred from recovery

Question 15

Product Liability - 3 types of negligence

Answer 15

1. negligent design
2. negligent manufacture
3. failure to warn

Question 16

duty to warn

Answer 16

= 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

Question 17

When do you have duty to warn?

Answer 17

Dangerous products, products that are discovered to be defective, and scientific and technological advancements

Question 18

Occupier’s liability

Answer 18

• 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

Question 19

3 types of damages:

Answer 19

• 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

Question 20

Circumstantial Evidence

Answer 20

= 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

Question 21

Business-related torts

Answer 21

1. inducing breach of contract
2. unlawful interference with economic relations: Using threats or other unlawful means to convince another party to cease doing business with someone else
3. product defamation: one party intentionally makes untrue or disparaging remarks about another’s product in advertising their own product
4. passing-off: representing one’s own product as that of another (i.e. Trademark infringement)

Question 22

4 elements of Inducing breach of contract

Answer 22

1. The Defendant had knowledge of the contract between the Plaintiff and a Third Party;
2. The Defendant intended to procure a breach of that contract;
3. The Defendant’s conduct caused the third-party to breach the contract; and
4. The Plaintiff suffered damages due to the breach.

Question 23

2 types of misrepresentation

Answer 23

• if intentionally untrue (i.e. a lie): fraudulent misrepresentation
• if carelessly untrue: negligent misrepresentation (poor advice leads to financial loss)

Question 24

Negligent Misrepresentation test (6)

Answer 24

(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

Question 25

5 elements of Fraudulent Misrepresentation

Answer 25

(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

Question 26

reliance vs detrimental reliance

Answer 26

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

Question 27

Is Fiduciary Duty connected to negligence?

Answer 27

no

Question 28

fiduciary (definition)

Answer 28

= someone who stands in a special relationship of trust with another person (a parent, a doctor, a trustee) , a beneficiary

Question 29

Fiduciary Duty

Answer 29

• 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

Question 30

3 characteristics to determine who is a fiduciary

Answer 30

(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

Question 31

Conflict of interest (definition)

Answer 31

= 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

Question 32

third-party liability (definition, examples)

Answer 32

= liability to some other person who stands outside a contractual relationship
- accountants, real estate agents, insurance agents

Question 33

duty to account (definition)

Answer 33

= the duty of a person who commits a breach of trust to hand over any profits derived from the breach