LAW 122 Lecture Notes - Contributory Negligence, Professional Negligence In English Law, Breach (Security Exploit)

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Published on 19 Apr 2013
School
Ryerson University
Department
Law and Business
Course
LAW 122
Professor
Chapter 6 NEGLIGENCE Law 122
Tort of Negligence: determines whether the defendant can be held liable for carelessly
causing injury to the plaintiff
Ex. A manufacture may produce a beverage that makes a consume sick
Tort of Negligence requires the plaintiff to prove that the defendant:
owed a duty of care, in that it was required to act carefully toward the plaintiff
Breached the standard of care by acting carelessly
Caused harm to the plaintiff
Defendant can show at least one of the three possibilities:
Plaintiffs harm caused by its own contributory negligence
The plaintiff voluntarily assumed the risk of being injured by the defendant
The plaintiff was injured while engaged in some form of illegal behaviour.
Professional negligence: refers to negligence that is committed by a professional person
such as a banker or lawyer, or an accountant.
Have to act as a reasonable person
2. Law of negligence contains a tension between two important values. On the one hand,
the courts want a wide scope of liability in order to compensate people who suffer
injuries. In the other hand, the courts recognize that the imposition of liability sometimes
actually hurts society
-quite difficult to sue a physician, largely because judges do not want to discourage
doctors from practicing in risky areas, such as obstetrics.
DUTY OF CARE
Use to control the scope of liability under the cause of action of negligence.
Duty of care: occurs when the defendant is required to use reasonable care to avoid
injuring the plaintiff.----- without duty of care there cannot be a liability , even if the
defendant carelessly injured the plaintiff.
TEST OF DETERMING DUTY OF CARE
Duty of care was restricted to certain types of relationships such as innkeeper and
traveler, lawyer and client, Railway Company and passenger and surgeon and patient.
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Recently replaced those categories with a single test
Donoghue v Stevenson
Test:
The judge will first ask whether or not the duty of care question has already been
answered for the particular type of case that she is hearing
If the duty of care question has not already been answered for the particular type
of case that the judge is hearing, then three questions will be asked to see if duty
of care should exist
o1. was reasonably foreseeable that the plaintiff could be injured by the
defendant’s carelessness?
o2. Did the parties share a relationship of sufficient proximity?
o3. If an injury was reasonably foreseeable and if the parties shared a
relationship of sufficient proximity, then a duty of care will presumably
exits. The judge might still deny a duty of care, however, on the basis of
Policy Reasons.
1. Reasonable Foresee ability
Test is objective
Important that reasonable person in the defendants position would have
recognized that possibility.
Test is intended to strike a balance between parties
Plaintiff should not have to suffer because defendant was not paying attention
It would be unfair to hold the defendant liable for every injury that it creates.
2. Proximity
Duty of care will not be recognized unless there was also a relationship of
proximity
There should be a close and direct connection between the parties
oWhether parties shared a social relationship (parent and child)
oShared a commercial relationship ( tavern and drunken driver)
oIf there was a direct causal connection (motorist who rams in bridge)
oWhether plaintiff relied on the fact that the defendant represented that it
would act in a certain way ( railway company and safety gate )
DUTY of Care for Professional Statements
Some information from professionals is inaccurate, and customers will suffer a loss due
to this.
-law of negligence should strike a balance between the need to compensate people who
are hurt by the negligent statements and the need to protect business from the potentially
disastrous consequences of being held liable.
-careless statements are different from careless actions
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Document Summary

Tort of negligence: determines whether the defendant can be held liable for carelessly causing injury to the plaintiff. A manufacture may produce a beverage that makes a consume sick. Tort of negligence requires the plaintiff to prove that the defendant: owed a duty of care, in that it was required to act carefully toward the plaintiff. Breached the standard of care by acting carelessly. Defendant can show at least one of the three possibilities: Plaintiffs harm caused by its own contributory negligence. The plaintiff voluntarily assumed the risk of being injured by the defendant. The plaintiff was injured while engaged in some form of illegal behaviour. Professional negligence: refers to negligence that is committed by a professional person such as a banker or lawyer, or an accountant. Have to act as a reasonable person: law of negligence contains a tension between two important values.

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