Philosophy 2080 Lecture Notes - Hockey Puck, Ginger Beer, National Coal Board

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Published on 5 Feb 2013
WEEK 3: 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.
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
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
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
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.
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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.
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.
As an element of the tort - have to show that the negligent conduct was the
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.
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