Tort Law - Negligence

Question 1

Negligence

Answer 1

Inadvertent (non-intentional) careless conduct that causes injur or loss to another

Question 2

What are the 4 elements of negligence? A. B. C. D.

Answer 2

A: A duty to exercise care
B: Breach of the standard of care
C: Causation - the act caused the injury
D: Damages - victim suffered a loss

Question 3

Duty of care explanation

Answer 3

Which element of negligence involves:

You can reasonable foresee that your actions can cause injury to others

Question 4

Duty of care example case (Donoghue v. Stevenson)

Answer 4

• Dead snail in bottle of beer
• Donoghue got a disease
• Manufacturers were negligent + did not take proper quality control measures to ensure cleanliness.
• Stevenson breached a ______ __ ______ to his customers and caused injury through negligence

Question 5

Duty of care example (Anne v. Merton London Borough Council)

Answer 5

• Potholes - can the city fix every pothole? No. This is a _____ __ _____ case.

Question 6

Misfeasance

Answer 6

Unintentional act of causing harm while performing a legal act or responsibility (ex. Police officer sees an escalating altercation but calls another officer to respond. It is protocol for closest officer to respond to the scene)

Question 7

Nonfeasance

Answer 7

A failure to prevent and injury (failure to act) (ex. Doctor failing to use a defibrillator when a patient goes into cardiac arrest, daycare workers fails to supervise children)

—> But Harry (lifeguard) off duty ignores someone drowning. No duty of care.

Question 8

What is the Good Samaritan Act?

Answer 8

No liability for emergency aid unless gross negligence

Question 9

What is standard of care?

Answer 9

Level of care a person or entity must exhibit to prevent others from harm. (Medical malpractice)

Question 10

How do you evaluate B: Breach of the standard of care? (After establishing A: A duty of care is found)

Answer 10

What would a reasonable person have done in the circumstances? Is it considered conduct that I s below socially acceptable standards?

Question 11

“ The greater the risk of injury, the higher the standard of care” Tandem gliding case

Answer 11

• Tandem gliding, pilot fails to harness clients properly before the flight. Client falls to death.

Question 12

How can professionals breach the standard of care?

Answer 12

• regardless of YOE or standard practice of professions.

Question 13

Who else can professionals owe a duty of care to?

Answer 13

Professionals exercising special skills may also owe a duty of care for PURE ECONOMIC LOSS suffered by a third party - someone they have no contractual relationship with

Question 14

Haig v. Bamford : Professional may owe a duty of care to third parties

Answer 14

• Accounting firm negligently prepared financial statements for a company
• statements misled investors to invest in the company
• Haig, relying on the incorrect statements, purchased shares.
• Bamford (accounting firm) was aware that potential investors would rely on it, so they owned a duty of care to this class of people

Question 15

What are the 2 steps to prove C: causation?

Answer 15

1) Physical causation
2) Legal causation

Question 16

What do you ask to justify physical causation?

Answer 16

Ask: if it was not for? If A didn’t do this, would B still be damaged?

Question 17

How to justify legal causation? What is the question?

Answer 17

Is the injury foreseeable?

Question 18

Legal causation: remoteness test

Answer 18

Mustapha nightmares about flies. This is not reasonably foreseeable.

Question 19

D: Damages, what damages must be proved for it to be justified as negligence?

Answer 19

Requires a loss to person or property (“no pain no gain”). Unlike intentional torts, which may be actionable without specific damage

Question 20

What are 2 defences to negligence?

Answer 20

1) Contributory Negligence
2) Voluntary assumption of risk

Question 21

Examples of contributionary negligence (Lilian + her car accident)

Answer 21

• I hit Lilian’s car, but she wasn’t wearing her seatbelt (she contributed towards losses)
• Her injuries would have been 40% less if she wore seatbelt, thus I am 40% less liable

Question 22

What is the thin skull rule

Answer 22

“ you take your victim as you find them” a pregnant woman is more vulnerable than an MMA fighter

Question 23

What is product liability

Answer 23

Legal responsibility a. Business has for manufacturing or selling dangerous or defective products. (Avoid faulty item like in snail)