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43 > Torts: Unintentional > Flashcards

Torts: Unintentional Flashcards

1
Q

What is negligence?

A

If we fail in creating a safe environment around us, or not measuring up to our given expertise in relation to activity. Chance of being held accountable under tort principle of negligence

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2
Q

Case Analysis: Donohue vs Stevenson MAIN POINTS

A
  1. Manufacturer, retailer, purchaser, consumer (4 actors)
  2. Drink went through chain
  3. Consumer got quite ill due to issue with product
  4. Purchaser had contractual relationship so the retailer and manufacturer are to blame
  5. Consumer accepting the drink was gratuitous so there was no contract to sue
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3
Q

Case Analysis: Donahue vs. Steveneson

What did we learn?

A
  1. Contractual relationship when purchaser bought from retailer and manufacturer
  2. Must have privity of contract
  3. Gratuitous is not able
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4
Q

What is the love thy neighbour doctrine?

A

Must take reasonable care to avoid acts which you can reasonably foresee that would likely injure neighbour. Meaning anyone who is closely and directly affected by act I reasonably have them in contemplation as being affected.

Layman’s terms: Reasonable contemplation that a reasonable person could force that could be affected by my conduct

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5
Q

What are the 4 elements that prove act is negligent at law?

A
  1. Was a duty of care owed
  2. If duty of care was owed, what is standard of care?
  3. Was there a breach of this standard?
  4. Is there legal causation or legal connection?
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6
Q

4 Elements:

Duty of Care

A

Asks the question: Who should you have a duty of care to?

  • Anyone closely affected by your actions
  • Key word: foreseeable

Were they a foreseeable victim?

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7
Q

4 Elements:

Duty of Care Example:

A
  • If person is too remote, it is considered not foreseeable
  • If person is close to accident, then can be considered
  • Ask, “what would a normal person react to”
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8
Q

4 Elements: Standard of Care?

A

Assuming victim was able to establish foreseeability that a duty of care was owed.

  • Every activity has a standard by which to measure against to ensure reasonable care is being taken
  • Key word “reasonable”
  • If person has expertise, higher standard is expected
  • Legal or common sense is considered
  • Also products can be compared to those in same industry (product liability)
  • Law requires manufacturers have legal responsibility to make users aware of risks associated
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9
Q

4 Elements: Element of Breach

A
  • Proving that there was an actual breach of contract/duty of care
  • “What’s your conduct in breach of this standard”?
  • For example, the act of driving on the wrong side of the road goes against the standard
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10
Q

4 Elements: Element of Causation?

A
  • Have to prove injury was a result of direct and causal link to offending activity
  • Proving that your action is a DIRECT consequence
  • Proven with the but for test
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11
Q

4 Elements: Element of Causation - But For Test?

A
  • Ask: but for defendants actions or conduct with the injury, would it have happened?
  • But for the existence of X, would Y have occured?
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12
Q

4 Elements: Element of Causation

Novas Actus Interveniens?

A
  • Intervening act
  • Establish the intervening act as as a cause of the injury
  • Ex: Hit person, injured, but dumb med makes it worse, they can be held liable
  • If intervener created injury, u not liable
  • If intervener make injury worse that u created, u both liable
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13
Q

4 Elements: Element of Causation - Thin Skull?

A
  • Take victim as you find them

- Even if there were previous medical conditions, injurer must take full responsibility

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14
Q

4 Elements: Element of Causation - Res Ipsa loquitur

A
  • Thing speaks for itself
  • Specifically in an area where there cannot be proven of negligence bc of unconsciousness
  • Facts are so obvious that there is the assumption the negligence had to take place otherwise how could the person been injured
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15
Q

4 Elements: Element of Causation - Occupiers Liability

A
  • Where a person is injured by coming on to someone’s land, who at law, occupier is liable to person injured on land
  • Occupier: owner or leaser of land
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16
Q

3 Categories of People in Occupier’s Liability

A
  1. Trespasser
  2. Licensee
  3. Invitee
17
Q

3 Categories: Trespasser

A
  • Rights of trespasser is that occupier cannot intentionally set traps to injure them
  • Trespasser must take risk as they are illegally on that land
  • Reasonable force only
18
Q

3 Categories: Trespasser - Attractive nuisances

A
  • Occupier is responsible for child

- Make reasonable efforts to ensure safety of them (putting up fences or making stoves not accessible)

19
Q

3 Categories: Trespasser New Laws

A
  • Occupier’s obligations are determined w variety of factors such as: age, reason, nature of danger, knowledge of danger, occupier’s cost of remit of removing danger
20
Q

3 Categories: Licensee

A

Def: Social visitor. Owner obligation was to let them know about dangers

21
Q

3 Categories: Invitee

A

Def: Inviting someone to property for business persons with a view toward making profit

  • Owner obligation is higher for invitee than licensee as inviter is making it attractive for them to come onto property
22
Q

What does criminal law say about trespassing?

A
  • Without lawful excuse, proof, loiters or prowls on property, near a dwelling house
  1. At night
  2. Has to be a dwelling house there
  3. Loiters near the dwelling house
23
Q

Host liability

A
  • When host is aware of illegal activity but takes no steps to make it safer
  • If drinker leaves pub, and crashes, the employees can be held liable
24
Q

Vicarious Liability

A
  • Where negligence extends beyond actual person who caused accident
25
Q

What are the 4 defence of negligence?

A
  1. All of elements not established
  2. Volenti non fit injuria
  3. Contributory negligence
  4. Statue of limitations
26
Q

4 Defences: Elements not established

A

Evidence shows negligence did not occur, beyond duty of care, not foreseeable, or standard of care was not mer or intervening act

27
Q

4 Defences: Volenti non fit injuria

A

Voluntary assumption of risk in participating in activity

28
Q

4 Defences: Contributory negligence

A
  • Defendant was responsible for injury

- Results in percentage decrease

29
Q

4 Defences: Statue of Limitations

A

Limitation periods in statues that operate as an absolute bar. Gives time limit basically.

30
Q

Rylands vs Fletcher

A
  1. Fletcher built late reservoir on his land
  2. Water leaked and flood coal mine belonging to Rowlands
  3. Ruled that Fletcher was responsible
31
Q

Ruling that Came from Rowland vs Fletcher?

A

Anyone storing potentially dangerous goods is responsible for any damages caused by the escape onto others proeprty

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