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Law 2101 - Feb. 11.docx

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Western University
Law 2101

Law 2101 Tuesday February 11 Tort Law Intro and Duty History • Negligence is perhaps the most important of all the torts • Its importance grew as the century progressed – why? o Big businesses, crowded cities, more cars, etc…  As you put more people together, there tends to be more accidental injuries o Rise of insurance, which often only covers accidental injuries  More plaintiffs and defendants have a vested interest in arguing cases as negligence cases o Expansion of legal principles in the favour of the plaintiff  Plaintiffs can sue manufacturers directly Differences Between the U.S. and Canada • Liability is generally the same o The difference doesn’t have to do with substance, but procedure • Two most important differences: o Juries  In the U.S. you have the constitutional right to have a jury trial  Juries are unpredictable and sometimes give crazy awards  In Canada we almost never have jury trials (sometimes the judges won’t even let you have one)  Many judges in the U.S. are elected (who don’t like to interfere with jury awards), but they aren’t elected in Canada and don’t worry about dealing with jury awards they think are unjustifiable o Punitive Damages  Punitive damages are rare in Canada (especially in negligence cases) and when they are awarded, they tend to be small • Other differences: o Absence of universal health care in the U.S.  We don’t have as much of a reason to sue in Canada because we don’t have to worry about the costs o More aggressive lawyers in the U.S.  eg. in Canadian courts when talking about another lawyer, you often say “my friend”, but they fight with each other more often in the U.S. o The absence of costs  If you sue someone in Canada and you lose, you have to pay their legal bill (therefore we don’t sue as often because you have more to risk if you lose) Elements of a Claim in Negligence: • Duty of Care o You have to prove that the defendant had an obligation to be careful of your interests • The Standard of Care and its Breach o After you prove that the plaintiff had an obligation towards you, you have to prove that they did or didn’t do something that a reasonable person would have done in those circumstances • Causation o The negligence of the defendant caused your injuries (it is not enough for someone to be negligent)  eg. it is a crime to drive your car 100km/hr. down Richmond street, but it isn’t a tort if you didn’t injure anyone • Remoteness of Damages o You have to prove that the damages were not too far-fetched o The courts often use the test of ‘reasonable foreseeability’ • Actual Damage o You have to prove that you suffered a damage that the law recognizes  eg. sadness is not damage (if someone kills your girlfriend)  eg. if you are exposed to asbestos and have the chance of getting cancer or dying, this is not actual damage – you can’t sue until you have it • Defences o After you have proven these 5 things, then the defendant argues with a defence o eg. contributory negligence (you were ‘stupid’ and didn’t know any better), voluntary assumption of risk, illegality (you were doing something illegal and don’t deserve the protection of the law) *It is difficult to win because you have to prove all 5 of these based on the balance of probabilities. Duty of Care • Ensures that the law of torts is a fault-based system • General Rules o Case: Donoghue v. Stevenson  Donovan ordered a ginger beer and found a decomposing snail inside it. She alleged that she got sick and sued the company that made the ginger beer. The court said that she had to sue the person she bought the ginger beer from – you can’t sue the manufacturer. It went to the House of Lords (highest court in the U.K.) who said you can sue anyone in negligence if they’re your neighbour.  The Neighbour Principle: You must not injure your neighbour (take reasonable care to avoid acts or omissions that you can reasonably foresee would injure your neighbour) • *Anns/Kamloops Test o Step 1:  a) Reasonably Foreseeable – is it reasonably foreseeable that carelessness on the part of one party would result in injury to another  b) Proximity – are the plaintiff and defendant in a relationship of proximity? Should you have been thinking of that other person? o Step 2:  Whether or not there are policy reasons to negate liability (these can be controversial) • Case: Mom and Pop v. Walmart o Walmart comes in and opens up beside a small mom and pop store, driving them out of business. Does Walmart owe a duty of care to the mom and pop store? No. o Is it reasonably foreseeable that carelessness will affect them? Yes o Is there a proximity? Yes o Policy Reasons? In a capitalist society, it has to be permissible to let businesses put others out of business. • Case: Shaw Savill & Albion Co. v. The Commonwealth o A war ship is hunting for a Japanese submarine and while it has its lights off, it crashes into a ship with passengers on it, killing the passengers. Did the navy owe a duty of care to the passengers? o Is it reasonably foreseeable that they could crash into the ship? Yes o Are they in close proximity to other ships on the ocean? Yes o Policy Reasons? The nation must be able to protect itself in times of war  However, this rule only applies when they are actively engaged with the enemy (they were specifically going after this Japanese submarine) • Case: Palsgraph v. Long Island Railway Co. o A man was carrying a package and trying to get on the train. The conductor should have hit the emergency stop button, but he pushed the man onto the train. The man dropped the package onto the tracks, which contained dynamite. No one was hurt, but Mrs. Palsgraph was standing under an industrial scale which fell on her and crushed her. She sues the conductor and the railway. o Example 1: Does the conductor owe a duty to the passenger who was pushed?  Is it reasonably foreseeable that pushing someone in the back may be injured? Yes, so the conductor owes damages to the person carrying the dynamite. o Example 2: Does the conductor owe a duty to Mrs. Palsgraph?  Is it reasonably foreseeable that pushing someone in the back would hurt someone 40 feet away? No, the conductor did not owe a duty to Mrs. Palsgr
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