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Lecture 2

Lecture 2 - Negligence.docx

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Valerie Irie

Lecture 2 Negligence Ethics & The Workplace • Difficulties faced by both employees and employers in avoiding unethical behaviour • Incrementalism – One small step … • Overconfidence Bias – Who’s a better driver? Negligence • Negligence is the careless causing of harm to the person or property of another • No intention to commit tort • The object of tort law: • To place the injured party back in the position s/he would’ve been had the tortious act not occurred • Three part test for negligence: 1. The defendant owed the plaintiff a duty of care; o In order to meet elements of negligence, plaintif must demonstrate owed duty of care 2. The defendant breached that duty of care by falling below the standard of care; and 3. The defendant’s actions caused the injury 1. Duty Of Care • Need to explain what a duty of care is, show how it is unintentional The legal duty imposed on everyone: – To take reasonable care to avoid injury to others – The injury must be reasonably forseeable • Huge aspect, must be able to see somewhat that the event could have happened – The duty is not all encompassing – you must owe a duty to the other person – Legal obligation placed on everyone to take care to avoid causing injury to others The Good Neighbour Principle – Donaghue v. Stevenson [1932] A.C. 562 – Everyone has a duty to not injure their neighbour – “you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour” Neighbour in law: – “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…” – When you are going to do something, must consider whether the action could affect someone and if so, then the potential affectee is owed a duty of care – Doesnt have to be only physical proximity – Being so close to injured party can allow for tort action to be taken Test for Duty of Care: 1. Is there a sufficiently close relationship between the parties…so that, in the reasonable contemplation of the [defendant], carelessness on its part might cause damage to that person? If so, 2. Are there any considerations which ought to negative or limit – The scope of the duty; and – The class of persons to whom it is owed; or – The damages to which a breach of it may give rise – Are there any reasons that there ought to be a limit as to whether they owe a duty of care • Duty of Care: – Good neighbour principle – Who is a neighbour in law? – Reasonable foreseeability – Socially valuable policy reasons that may limit the scope of the duty 2. Standard Of Care • What is the standard of care? – The level of care everyone must take to avoid injuring their neighbour – Established in law in Canada that the average standard for everybody is a reasonable ordinary person • Special standards of care: – The reasonable and competent person in a specific profession – where someone requires specialized skill and knowledge • Can only compare these people to someone who is competent and dilligent in that profession • I.e. Someone has a heart attack, not held to same standards of care as someone such as a doctor who has the skills – The professional standard of care* – The fiduciary* – Children – the standard of a reasonable child of the same age, unless engaged in an adult activity • Cannot hold child to same standard of care as an adult • Dont have the knowledge to properly foresee, compare to reasonable child of comparable age • In law, infant = anyone under the age of 18 • If engaged in adult activity (i.e. driving), compared to reasonable average adult • You cannot determine if a person has fallen below the standard of care if you do not first determine what the appropriate standard is in any given situation – Must always define what the appropriate standard is with regards to the situation, in order to determine if the defendant is liable • Other factors the court will consider in determining the standard of care: – Degree of likelihood that harm would occur – The potential severity of the harm – The social utility of the action involved – The feasibility of eliminating the risk 3. Causation • If there is no harm/loss – there is no tort • “But For” test • Would the injury have occurred “but for” for the conduct of the defendant? If yes, then this is the cause of the loss/harm • If the defendant had not done this action, would the plaintiff still have received harm? • The defendant does not have to be the sole cause of the harm, if is sufficient for the plaintiff to show that the defendant’s conduct was a cause of the harm/loss • Blaming a 3rd party does not negate ones liability, instead must ensure you are not liable • Remoteness • The conduct of the defendant cannot be too removed/remote from the harm caused • Not liable if the harm caused was due to a strong in
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