Unintentional Torts

Question 1

What is the 4 part test for proving negligence?

Answer 1

Must show the following:

1. A duty of care was owed to the plaintiff
2. The defendant fell below the required standard of care
3. The plaintiff must have suffered injury (damages)
4. The plaintiff’s injury must have been caused by the defendant’s conduct

Question 2

What is duty of care?

Answer 2

Duty of care is the legal duty imposed on everyone to take reasonable care to avoid injury to others. However, the injury must be reasonably foreseeable

Question 3

What is the test for duty of care?

Answer 3

There must be a sufficiently close relationship between the parties so carelessness could reasonably cause harm.
Consider anything that limits liability like the scope of duty, the class of person, or the damages to which a breach of it may give rise.
The key points are proximity and foreseeability

Question 4

Can statutes impose a duty of care on people?

Answer 4

Yes, statutes can be used to impose duties on people or groups. For example, municipalities can be found negligent for failing to carry out inspections as required by law

Question 5

What does it mean to breach the standard of care?

Answer 5

The conduct of a reasonable person in the same circumstances is used as the standard of care. If the defendant’s conduct is found to fall below this they have breached standard of care

Question 6

What are exceptions to the established level of standard of care?

Answer 6

Children are judged against reasonable children of the same age unless performing an adult activity

Professionals are judged against reasonable people in their profession as they should be held to a higher standard in their work

Question 7

What are damages?

Answer 7

The amount of harm done to the plaintiff. Could be physical or mental injury, property damage, or economic loss

Question 8

What are the types of damages?

Answer 8

Pecuniary: quantifiable like economic loss
General: non-quantifiable like pain and suffering

Question 9

How is causation proven?

Answer 9

Uses the “but for” test to determine if the plaintiff’s injury would have occurred without the action of the defendant

Question 10

What happens if the defendant is not the sole cause of harm to the plaintiff?

Answer 10

They can be assigned a portion of the blame and required to pay a corresponding portion of the damages

Question 11

What is remoteness?

Answer 11

If it was not reasonably foreseeable that conduct would lead to harm the defendant can be found to be not liable

Question 12

What is professional negligence?

Answer 12

The idea that professionals may be held to a higher standard of care and must avoid conflicts of interest.

Question 13

What are the 3 types of product liability?

Answer 13

Negligence manufacture: The product was manufactured in a way that made it dangerous
Negligent design: The product was designed in a way that could foreseeably lead to injury
Failure to warn: Did not warn the user adequately of the danger of the product

Question 14

What is required for product liability?

Answer 14

There must be a contractual relationship between the vendor and the plaintiff like a purchase

Question 15

What is the Occupier’s Liability Act?

Answer 15

It states that a property owner owes a duty of care to all those who enter the premises.
Even trespassers are owed a duty of general humanity, cannot seek to harm them

Question 16

What are the 2 defences to negligence?

Answer 16

Contributory negligence and voluntary assumption of risk

Question 17

What is contributory negligence?

Answer 17

When the plaintiff contributes to their own injury in whole or in part. They could contribute to the incident itself, expose themselves to risk, or fail to take steps to minimize injury after the incident

Question 18

What happens if contributory negligence is proven?

Answer 18

Damages are apportioned to the plaintiff as well as the defendant as it is only a partial defence

Question 19

What is voluntary assumption of risk?

Answer 19

Where the plaintiff knows the risks of their activity ahead of time and are engaged in an inherently risky activity

Question 20

What is fiduciary duty?

Answer 20

A duty imposed on a person in a special relationship of trust and loyalty to another

Question 21

What are the characteristics of a fiduciary relationship?

Answer 21

The fiduciary undertakes to act in the best interests of the beneficiary
The beneficiary is vulnerable to the fiduciary’s control or discretion
A legal or practical interest of the beneficiary could be harmed by the fiduciary’s discretion or control

Question 22

What are the responsibilities of a fiduciary?

Answer 22

Act honestly, in good faith, and only in the best interest of the client
Avoid all conflicts of interest
Account for all property held on behalf of the beneficiary

Question 23

What is corporate opportunity doctrine?

Answer 23

A director as a fiduciary cannot take a corporate opportunity for themselves. This duty extends for a reasonable time after they leave the company

Question 24

What are the 3 types of misrepresentation?

Answer 24

Negligent misrepresentation, fraudulent misrepresentation, and innocent misrepresentation

Question 25

What is required to show negligent misrepresentation has occurred?

Answer 25

1. A statement is made
2. The statement is false
3. The maker of the statement owes the hearer of the statement a duty of care
4. The hearer of the statement reasonably acts on the statement
5. The statement falls below the standard of care
6. The hearer of the statement suffers a loss resulting from the statement

Question 26

What is required to show fraudulent misrepresentation has occurred?

Answer 26

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 reasonably acts on the statement
5. The hearer of the statement suffers a loss as a result of acting on the statement

Question 27

What is innocent misrepresentation?

Answer 27

A misrepresentation that is neither fraudulent or negligent