COMM 304 Lecture Notes - Lecture 7: Bungee Jumping, Partial Defence, Contributory Negligence

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9 Mar 2013
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Lecture Seven
Botfor test, does not tell you who is liable, but tells you who
If you have 5 people who might be defendants, if you apply the butfor test, and it says but for
this person, this will not have happened, you know this person COULD be the defendant, but not
for sure
Do not use butfor test to work yourself through a case of negligence
If for example you have something were you can’t say but for their actions, the plaintiff will not
have been armed, ten you know they are not the defendant
If they would have suffered the same loss anyway, even if the defendant hadn’t acted carelessly,
the defendant ad to be held liable
If there are two defendants, a particular person may be held partially liable
The reasonable person
Who is the reasonable person? A normal person with normal intelligence in a normal state of
alertness (never under the influence, person with a clear mind)standard
What does society expect from you, did you meet the standard of care, what did you actually do
o The first one is a duty, an abstract, what society expects (duty of care)
o The second one is what did you actually do, did you meet the duty of care (standard of
care)
Professionals (part of a group, normally identified as the group you need to pass multiple exams
to enter, group that charges fees for their services, group that determines who stays in the
group, etc. Doctors, lawyers, etc.
o in relation to their duty, have higher duty of care than normal people because they
have been trained to a higher standard
If there is an accident on the road, someone crashed their car and it their throat on the steering
wheel, if I take the pen knife from my pocket and cut him and cause an infection, my duty and
care would be lower than if a doctor made the cut and used a sterilized scalpel, and caused an
infection (compared to the ordinary doctor, higher duty of care on level of doctors)
Case Study #1 pg 121
Manufacturer sells to retailerretailer sells to purchaser
These are contracts. Under the sale of goods act; Purchaser has the rights to sue the retailer
instead of the manufactures
Consumer protection act says that while manufacture or retailer can limit their liability by
putting it in a contract (receipt, notice on cash register), if it’s a consumer purchase, the sale of
goods act are still yours (not for business purchases)
Suppose the purchaser is buying a good for their own use, they can sue the retailer, then the
retailer can blame the manufacturer of mis-manufacturing and can sue the manufacturer
This chain of contracts allow you to get to the manufacturer
The purchaser gives the gift to their friend, and the good injures the friend who it was given to
there is no contract with the friend and the retailer (gratuitous gift)
Ouse of lords says, the manufacturer knows there is going to be an end user of the goods, and if
the end user does not know how the product is once they receive it, they are allowed to sue the
manufacturer for negligence (friend is able to now sue the manufacturer)
Any user of goods are able to sue manufacturer directly
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Document Summary

Botfor test, does not tell you who is liable, but tells you who. If you have 5 people who might be defendants, if you apply the butfor test, and it says but for this person, this will not have happened, you know this person could be the defendant, but not for sure. Do not use butfor test to work yourself through a case of negligence. If for example you have something were you can"t say but for their actions, the plaintiff will not have been armed, ten you know they are not the defendant. If they would have suffered the same loss anyway, even if the defendant hadn"t acted carelessly, the defendant ad to be held liable. If there are two defendants, a particular person may be held partially liable. A normal person with normal intelligence in a normal state of alertness (never under the influence, person with a clear mind) standard.

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