Unit 3 Part 2

Question 1

What 4 elements need to be met in order to be liable for negligence?

Answer 1

1) Duty of care
2) Standard of care
3) Cause of damage
4) Actual damage occured

Question 2

Who is the plaintiff?

Answer 2

The victim who received damages and initiates the civil action.

Question 3

Who is the defendant?

Answer 3

The one accused of causing harm and is being sued for damages.

Question 4

What is duty of care?

Answer 4

It must be proven that the defendant owed a duty of care to the victim. This is a legal responsibility of care to protect and not cause harm.

Question 5

What are some examples of duty of care?

Answer 5

Every person has a legal duty not to harm others, such as:

• your duty to drive responsibly/reasonably: a reckless driver breaches the duty of care to others
• failing to fix a broken escalator is a breach of duty of care

Question 6

What is standard of care?

Answer 6

If the duty of care is breached, it must be determined how much care was owed to the plaintiff.

Question 7

What established the standard of care expected?

Answer 7

The reasonable degree of care establishes it.

Question 8

Besides the reasonable degree of care, what else is an important component for standard of care?

Answer 8

Foreseeability

Question 9

What are the tests to establish standard of care?

Answer 9

1. The Reasonable Person Test
2. The Professional Liability Test
3. The Child Test

Question 10

What is the Reasonable Person test?

Answer 10

The courts refer constantly to “what a reasonable person would have expected in similar circumstances.” If conduct falls below expected standards of care, the individual is financially legally responsible for damages.

Question 11

Who is considered a reasonable person?

Answer 11

• an ordinary adult
• no physical/developmental disabilities
• careful, thoughtful, considerate

Question 12

What are some of the contexts that change what a reasonable person is?

Answer 12

Reasonable is the context of today’s values are not what was reasonable fifty years ago.
Reasonable in the context of the location or event.

Question 13

What is reasonable in the context of location or event?

Answer 13

Location: what a reasonable action in rural Saskatchewan is may not necessarily be what is reasonable in Vancouver, B.C.
Event: the action can be lawful (driving the speed limit), but in the context of extremem weather conditions or slippery road conditions, liability could still be established.

Question 14

What is the professional liability test?

Answer 14

Individuals with specialty skills, expertise, and training have a higher expected standard of care towards others.
Includes doctors, lawyers, teachers, pilots, nurses.

Question 15

What is the reasonable person test adapted to with the professional liability test?

Answer 15

What a “reasonable person with the same special training” would have done in the situation.

Question 16

What is the child test?

Answer 16

Children cannot be held to the same standards of care as a “reasonable adult”.

Question 17

Is there a set standard regarding youth and torts?

Answer 17

No

Question 18

How is liability regarding children based?

Answer 18

On each case. Older children are held more responsible than younger children.

Question 19

What does the reasonable person test mean with children?

Answer 19

What another child owuld do with similar:

• age
• intelligence
• experience

Question 20

Young children, under___, are assumed to not understand consequences of actions.

Answer 20

6-7

Question 21

What are exceptions with the child test?

Answer 21

If the offence was an adult activity. Youth are expected to meet the adult standard of care when the danger that exists to society is too great to reduce the standard of care.
Ex. Driving a car or hunting.

Question 22

What have provinces created that protects property destroyed by a child? Why?

Answer 22

Provinces have created legislation, such as S. 21 of the Ontario’s Parental Responsibility Act of 2000 that now protects property destroyed by a child because the plaintiff can sue the parent for damages. The liability shifts to the parent under certain conditions.

Question 23

What is the standard of care for rescuers?

Answer 23

If you step into a situation and assume a duty of care your expected standard of care is quite low in rescue and emergency situations.

Question 24

With standard of care for rescuers, who is duty of care owed to?

Answer 24

• victim harmed
• other potential victims
• other rescuers
• anyone harm may foreseeability come to by you interceding and assuming the duty of care.

Question 25

What is foreseeability with standard of care?

Answer 25

Along with testing the situation with what a reasonable person would have doe, they also test foreseeability–could a reasonable person have anticipated the result.

• if yes, the defendant may be liable
• if no, there is no fault or liability

Question 26

What is cause of damage?

Answer 26

If duty of care was owed and the standard of care was not met, it needs to then be determined whether the harm was directly caused by the defendant’s negligence.

Question 27

What is causation?

Answer 27

The direct result of one person’s actions effecting harm or damage to another.

Question 28

What happens if causation is not found?

Answer 28

There is no liability or negligence.

Question 29

What are the two test to determine cause of damage?

Answer 29

• the but for test

- the too far removed test

Question 30

What is the “but for” test? Who is it used by?

Answer 30

• This test is used by judges to determine how direct the action and effects are.
• If an accident would not have occured “but for” the actions of the defendant, the conduct is the cause of damage.
• If the accident would have happened anyway, the conduct is not the cause.

Question 31

What is the too far removed test?

Answer 31

If the accident would not have occurred, “but for” the defendant’s actions…but is also very far removed from foreseeable consequences, there can be no causation.

Question 32

What is an example of an accident being too far removed?

Answer 32

-accused is speeding
-a child swerves out of the way onto the sidewalk
-a man on the sidewalk is knocked over, causing stress and a heart attack
-no one has a cell phone to call an ambulance and the man suffers in distress for some time
Cause of Damage?- There was no way to foresee the caused harm, even if it would not have happened “but for” the speeding. It is too indirect or far removed from the action.

Question 33

What does actual damage occured mean? What does the plaintiff have to prove for this to have occured?

Answer 33

The plaintiff must prove real harm or loss because of the defendant’s negligence.
if there if no loss, there is no legal action needed.

Question 34

If sued for negligence, what is the best way to defend yourself (what 4 things should you prove or disprove)?

Answer 34

• prove there was no negligence
• prove you did not owe the plaintiff any duty of care
• prove you lined up to the expected standard of care
• prove the plaintiff themselves were also negligent (this may help lower the damages or win the case)

Question 35

What are the three types of defences?

Answer 35

1) Contributory Negligence
2) Voluntary Assumption of Risk
3) Inevitable Accident

Question 36

What is contributory negligence?

Answer 36

If people suffer damages because they do not look after their own safety, society does not believe they should be protected by the law. If bothe parties are slightly negligent, damages may be divided between them, which is contributory negligence.

Question 37

How is contributory negligence established in court?

Answer 37

The trial judge determines if ther was equal fault or if one was mroe responsible.

Question 38

What does each province have, detaining how the court determines fault?

Answer 38

A Contributory Negligence Act

Question 39

What is a voluntary assumption of risk?

Answer 39

Sometimes harm happens while someone is engaged in a dangerous activity, such as skydiving or bungee diving.

Question 40

What does the concept of voluntary assumption of risk assume?

Answer 40

That these people who engage in a dangerous activity willing accept the risks.

Question 41

How does the defendant prove voluntary assumption of risk?

Answer 41

Prove the plaintiff knew the risks and continued.

Question 42

What is an example of voluntary assumption of risk: drunk driver sued by a passenger? Who has the burden of proof?

Answer 42

-could try to prove the passenger got into the vehicle knowing the driver was drunk and voluntarily took on the risk.
-Burden of Proof is on the defendant since the plaintiff may likely have established their elements of negligence.
If they can prove voluntary assumption of risk, they can get damages reduced.

Question 43

What is an example of voluntary assumption of risk: contact sports?

Answer 43

• hockey or football players assume the risk
• spectators harmed during games also must assume the risks
• the harm must happen during an ordinary action
• often the risk is stated on the ticket

Question 44

What is a waiver?

Answer 44

For some activities, you must sign a waiver (waiving your right to sue if damaged) before participating. By signing it, you limit your ability to sue for personal injury.

Question 45

What is the example of voluntary assumption of risk, precedent case: Crocker v. Sundance Northwest Resort Ltd. 1988?

Answer 45

• an impaired person (Crocker) signed a waiver to participate in a tubing contest at a ski resort
• resort manager attempted to stop him - he persidsted and competed, becoming seriously injured
• Supreme Court of Canada determined hte waiver was unenforceable because the victim was drunk when signing - he could not have understood he was waiving his rights and what the risks were.
• Verdict: resort was found 75% responsible

Question 46

What is an inevitable accident?

Answer 46

At times, accidents happen despite precautions a reasonable personwouldmake that are not foreseeable. These are “Acts of God” or inevitable accidents.

Question 47

What is an example of an inevitable accident?

Answer 47

Lightening strikes a moving car that collides with other vehicles - no one is likely to be held liable.

Question 48

What is an example of contributory negligence?

Answer 48

Car Accident - $80 000 awarded damages.
Defendant 75% at fault: driving too fast, went through red light - owes plaintiff $60 000 to compensate the injured person.
Plaintiff 25% at fault: went through a yellow light, wearing no seatbelt.