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Philosophy 2080
James Hildebrand

WEEK 3: Standard of Care STANDARD OF CARE: The word “foreseeable” alone can’t be the complete answer. Even the most remote possibility of an injury would attract liability if a duty of care arose just because something was foreseeable. BOLTON & OTHERS v. STONE Facts: defendant Cricket Club, batsman hit a cricket ball, over the 7’ high fence, ball hit the π, standing 100 yards from the “wicket”, π sued club for his injuries Held: for the def at trial, for π on appeal, appealed to H of L House of Lords: - for the defendant 1. readily foreseeable that accident might happen 2. balls hit over the fence about once every three seasons 3. residential roadway, not a lot of traffic 4. p 1-43, paraphrase - is the question to avoid conduct with potential, however slight, to injure, or avoid conduct only if injury to others is likely or probable, on a reasonable person standard 5. p 1-45, “the test”, risk of damage to person on the road so small, reasonable man would have thought it right to refrain from taking steps to prevent the danger 6. 2 factors: 1: how remote the chance of injury; 2: how serious the likely injury Q: What about when people attend a hockey game or a baseball game? Should the hockey arena be liable when someone is hit in the face with an errant hockey puck? General Motors was subject to legal action for faulty brakes in the 1980’s “Citation” automobile. One of General Motors’ defence arguments was that since only about 7 had died and over 2 million units had been sold, then this was an acceptable risk. What do you think about this defence? Perhaps the next case will help us answer this question as well. As we will discover in further cases, there is a more precise test to assess a “standard of care” and whether that standard has been breached. Should a more detailed analysis be required, these are the elements of the proper test. 1. What is the likelihood of injury? 2. What is the likely severity of injury? 3. What is the cost of avoiding the injury? 4. What is the “social utility” of the conduct in question. This test is easily applied to both the above case and the next two cases. PARIS v. STEPNEY BOROUGH COUNCIL Facts: garage mechanic with one good eye, struck with metal chip while hammering U-bolt on a cage, injured his good eye, sued employer for not providing goggles Held: at trial for π, on appeal for defendants, - appeal to H of L held for π 1. at trial, employer knew he had only one good eye, (this goes to the seriousness of injury as a factor to be considered, together with likelihood of injury) 2. “ there are two factors: seriousness of injury risked, and likelihood of injury caused 3. good example - to carry lighted candle through powder magazine v lighted candle through a damp cellar Thinking back to the General Motors Citation case, perhaps the likely severity of the injury would make GM’s liability a bit more likely. CAUSATION: As an element of the tort - have to show that the negligent conduct was the cause of the plaintiff’s injury This next case deals with a modern problem relating to causation. Our expectations of the capabilities of science and technology raise some real difficulties for proving causation in tort cases. For example: there is a neighborhood where the incidence of brain cancer in children is 10 times the national average. It has been discovered that a toxic substance has “leached” into the soil and is also present in a stream where all of the affected children are known to have played. The family of one child sued the company that had released the toxins into the environment. They lost the case, because it could not be proven on a balance of probabilities that a particular child’s sickness had been caused by the environmental toxin. Although our common sense intuitions may tell us it is likely the toxin that caused the illness, a precise empirical link is not possible. In modern society, we expect that precise causal explanation, and impose this burden on the plaintiff. Oddly enough, disease etiology is a recent enterprise, and is still not that exacting. Our expectations regarding precise explanations may be too onerous a burden on the poor plaintiff, and this case deals with exactly this issue. And remember, if you can’t prove causation, in negligence, you lose the case. MCGHEE V NATIONAL COAL BOARD Facts: - appellant - the plaintiff, employed at def company - job to empty pipe kilns at the brickworks - sent to a different job - to empty brick kilns, hotter and dustier - Thursday, works at brick kiln - noticed abrasion on Sunday, worked Monday and Tuesday, went to the Dr - off work, dermatitis, caused by heat and dust from work - sued NCB - failed to provide adequate washing facilities at work - π cycled to and from work Lord Reid: Causation – in this case - dermatitis is caused by minor abrasions in the horny layer of the skin - repeat abrasions - break down the outside layer, underlying skin subject to injury - * medical science cannot determine the precise nature of the injury - only thing to help problem is to wash and get rid of the dust - he had to ride home hot, sweaty, covered with dust - longer exposure, greater the risk of injury - page 1 – 48: π must show fault of def caused or materially contributed to injury - even if 2 separate causes, good enough if each cause materially contributed to injury - eg of Bonnington Castings v Wardlaw - previous case - disease caused by accumulation of dust in lungs, came from 2 sources, def was one of the sources, every particle a cause - in Bonnington, 2 causes were necessary for the injury - but in this case, it is not clear how plaintiff’s injury is caused - could be a) accumulation of minor abrasions; or b) disease starts at one abrasion and spreads out to others, (means wouldn’t need a number of abrasions) - take a broader view of causation - riding home without wash
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