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Western University
Law 2101
Mysty Sybil Clapton

Intro to Negligence and Duty of Care Lecture #3 February 11 2014 History • Negligence is perhaps most important of all torts, especially in the last 100 years with the arrival of businesses, creation of more high tech dangerous machinery • Importance grew as century progressed – why? o Big businesses, crowded cities, more cars, etc o Rise of insurance which often only covers accidental injuries, not for purposeful o Expansion of legal principles in the favour of the plaintiff- in the 1930’s plaintiffs were able to sue manufactures directly, and in 1970 a test was created to test for negligence Difference Between U.S and Canada • Not about the rules we have, generally they are mostly the same • Liability is generally the same • Two most important differences: o Juries: In the USAyou have the constitutional right for a jury, who are unpredictable, in Canada we almost never have juries in negligence cases, lawyers and judge may not allow it. Many US judges are elected and do not want to interfere with jury awards. Procedures around rules and culture are different o Punitive Damages: Compensatory damage different, but in the USAthe jury may feel anger or emotion toward the defendant and can award money just for that • Other Differences: o Absence of universal health care: In Canada, you are treated and sent home, in the USAthere is no coverage for everyone, have to sue for medical costs to be covered o More aggressive lawyers: Lawyers in the USA are more aggressive and often don’t get along like Canadian lawyers o The absence of costs: In Canada if you sue someone and you lose, you have to pay their legal bill, so we don’t sue as much. In the states everyone pays for their own legal bills, even if you lose o Elements of a Claim in Negligence • Plaintiff HAS TO PROVE ALL 5 • Negligence has to cause injury- difference between criminal law and tort law • Duty of Care: prove that defendant had obligation to be careful about your interests; overtimes tests has changed • The Standard of Care and Its Breach: have to prove they weren’t careful, the defendant failed to do something a reasonable person would have done or failed to do • Causation: prove that the negligence of the defendant factually caused your injuries; easy and hard. E.g.: exposed to asbestos 3 times; but which episode caused the disease? • Remoteness of Damages: damages weren’t too far fetched or fanciful • Actual Damage: suffered damage that the law recognizes as damage; being sad is not damage, neither is anxiety, worry. • Defences: defendant can get up and argue why plaintiff shouldn’t win; 1) Contributory negligence: You were stupid enough to do something a reasonable person would not have done 2) Voluntary assumption of risk 3) Illegality; you were doing something illegal, you don’t deserve protection from the law Duty of Care; foundational concept • Limiting concept; to who were are responsible to • General Rules o Donoghue v. Stevenson: Ms. Donoghue out with some of her girlfriends and had a ginger beer with ice cream in it, she is drinking it and looks inside the bottle and sees a decomposing snail, she sued the company making the ginger beer, but they said no she has to sue person who bought the beer, which was her friend. Went to the house of lords who said ‘no you can sue anyone o Snail in a bottle of ginger beer Neighbour Principle • “The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, who is my neighbour? Receives a restricted reply. You must take reasonable care to avoid acts or omissions, which you can reasonably foresee, would be likely to injure your neighbour. Who, then, in law is my 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 I am directing my mind to the acts or omissions which are called in question.” Duty of Care o Anns/Kamloops Test o Step 1)  Reasonably foreseeable; that carelessness on the party of one party will result in injury to the other  Proximity: whether plaintiff and defendant are in a proximate relationship, are you close? Did they rely on you? o Step 2)  Policy reasons to negate liability: capitalism and in queens time o Application of Test – Mom and Pop v Walmart : own a nice little store in town in business for 30 years selling general merchandise, Wal mart opens up beside them and forces them to close down. Does wal mart owe a duty to care? o Is it reasonably foreseeable: yes o Proximity: yes they are right beside eachother o Policy: no, capitalism. Very controversial o Shaw Savill & Albion Co v The Commonwealth: defendant looking for war submarine, turn off lights crashes into boat and kills, passengers and ship owners sued the British navy. Court said no duty, it was foreseeable and close in proximity, no duty was owed because the nation must be able to protect itself. If the destroyer was not doing anything navy based, there could have been liability. o Palsgraph v Long Island Railway Co o Man carrying a package unto train, he is trying to grt on and train starts to move, conductor should have hit emergency button and didn’t so he pushed the fellow onto train which caused the package to fall, held with fireworks, falls onto electric tracks and causes big explosion. Ms. Palsgraph is standing close by and a 1 ton thing falls on her o Example 1 (Passenger v Railway): YES conductor owes damages to person carrying package o Example 2 (Ms. Palsgraph v Railway): NO does conductor owe liability to Ms. Palsgraph- no, he owed no duty to someone 40 feet away o All duties in private law are relational; just because you owe duty to one person, doesn’t mean you owe t to every
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