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Lecture 4

LAW 122 Lecture Notes - Lecture 4: Arsenic Poisoning, Sliding Glass Door, Artificial Insemination

Law and Business
Course Code
LAW 122
Peter Wilson

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LAW 122 Lecture 4: Negligence
TORT: is a private/civil wrong that unfairly causes a person to suffer loss or harm, which results in legal liability
for the person who commits the tortious act (tortfeasor)
o persons include corporations
o theses are committed against the personal code of conduct whereas criminal offenses are committed
against the criminal code of conduct
torts are also seen as a FAILURE to fulfill a private duty imposed by the common law or statue Oupies
Liability Act) for which the law provides remedies
A breach of duty under a contract is NOT a tort
NEGLIGENCE: A careless act causing injury or damage to another
INTENTIONAL TORT: An action intentionally undertaken by a person causing injury or damage to another
Donoghue v. Stevenson, [1932] (HL)
The plaintiff, Mrs Donoghue, visited a cafe with a friend. Her friend bought her a bottle of ginger beer that the
defendant had manufactured. After drinking some of the beverage, the plaintiff poured the remainder into her glass.
She then noticed that the bottle contained, along with ginger beer, a decomposed snail. The event made her sick, and
she sued the defendant for carelessly allowing a snail to get into the drink.
The issue before the court was whether a manufacturer owes a duty of care to a person who consumes, but did
not personally buy, a particular product. Lord Atkin said "yes."
You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to
injure your neighbour? The answer seems to be-persons who are so closely and directly affected by my act that I ought
reasonably to have them in contemplation as being so affected when lam directing my mind to the acts or omissions
which are called in question.
That decision is important to business people for two reasons
First, it created a general test for determining the existence of a duty of care. It is no longer necessary to bring a
case within one of the traditional categories.
Second, it established that a manufacturer can be held liable to any consumer. Manufacturers therefore have to
worry not only about the people who buy their products, but also about the people who use their products. We
will discuss the second point later.
The decision of the House of Lords in Donoghue v. Stevenson established the requirements for the modern tort
of negligence.
Liability for negligence extended beyond any obvious and recognized relationship between the parties (e.g.,
lawyer-client, railroad-passege to ou eighou at lage.
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Test for Negligence
For a sustainable claim of negligence, it must be
proven that:
o The party causing the injury owed a duty
of care to the injured party and
o The party causing the injury breached
that duty of care by acting carelessly and
o By this action, reasonably foreseeable
injury or damage resulted
The party responsible for negligence may avoid
complete or partial liability if:
o The injured party voluntarily accepted or consented to the risk of injury or
o The injured party was harmed while engaging in an illegal activity
o The injured party contributed in some manner to the injury or damage (contributory negligence) or
o The injury or loss was not reasonably foreseeable (remoteness)
The appellant participated in the respondent obstetrician and gynaecologist's artificial insemination (AI)
program from 1981 until January 1985. She became infected with HIV as a result of the final AI procedure she
underwent. The respondent obstetrician had not warned her of the risk of HIV infection.
The first documented case in the world of HIV transmission through AI was published in the popular media in
July 1985 and in a medical journal in September 1985. None of the obstetric literature mentioned AI as a mode of
transmission of HIV and no article summarized the disease risks of AI before 1986.
Although the respondent obstetrician knew that HIV could be transmitted by heterosexual sex, he was not
aware that HIV ould e tasitted  AI util Jul 5. Thee as epet eidee that the espodet ostetiias
AI practice was in keeping with the general standards for such a practice in Canada. The appellant claimed the
respondent obstetrician was liable for negligence.
Duty of Care to anyone who will be reasonable affected by what he does
Did he breach a reasonable standard of care?
o According to medical research there was knowledge that HIV was transmitted under certain
circumstances however as a medical professional they should have informed the patient that there was
a possibility that she could contract the HIV virus
Decision at Trial
o At trial, the respondent obstetrician was found negligent, and the appellant was awarded damages
totalling $883,800.
Decision at Court of Appeal
o The Court of Appeal set aside the verdict and ordered a new trial on the issue of liability as well as
Decision at Supreme Court of Canada
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o The SCC agreed with the Court of Appeal and dismissed the appeal; i.e., it found there was no
o Physicians have a duty to conduct their practice in accordance with the conduct of a prudent and
diligent doctor in the same or comparable circumstances;
o In the case of a specialist, such as an obstetrician and gynaecologist, the standard of care must be that
of other ordinary specialists with a reasonable level of knowledge, competence and skill expected of
professionals in Canada in that field at that time.
o It was not possible for a jury acting judicially to have found that, in 1985, the respondent obstetrician
ought to have known of the risk of HIV by AI.
At the heart of the negligence claim is the requirement for a duty of care
If a duty of care is not present, the injured or damaged party cannot sustain a claim for negligence against the
party that caused the injury or damage
What is a duty of Care?
o It is not a single, objective, definable standard
o The standard to be met depends on the particular circumstances;
E.g. the standard of care for a surgeon undertaking a delicate and risky operation will not be the
same as for workers doing road maintenance
Critical questions for determining a duty of care:
o Was it easoal foeseeale that the ijued pat ould e ijued  the offedig pats
o Did the parties share a relationship of sufficient proximity?
If the answers to both is yes, then a duty of care is likely present, subject to any denial on policy
Objective Standard
o The subjective opinion or belief of the parties does not matter
o Would a easoale peso i the offedig pats positio udestad that its actions may injure or
otherwise damage the injured party?
A balance is struck between unfairly penalizing someone for the consequences of an action that could not have
been reasonable foreseen, and not compensating for an injury or damage simply because the particular
offending party did not foresee it
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