MGSC30H3 Study Guide - Final Guide: Res Ipsa Loquitur, Strict Liability, Contributory Negligence

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15 Apr 2012
-Fault – conduct that intentionally or carelessly disregards interests of others
Requires person harmed to prove the fault of the person who caused the harm
-Strict Liability – does not require fault
If A causes harm to B, A may be strictly liable, even if A was not trying to harm B or
-No Fault Schemes
Ontario automobile insurance: driving considered a sufficient social good that the
inevitable harm it will cause should be compensated without fault – but compensation is
Worker’s compensations: industrial accidents are compensated without employer fault,
even if employees are careless
-Vicarious Liability employers are vicariously liable for harm caused by employees in
the course of employment
-Negligence A causes injury to B through a careless act
1. Duty of Care:
A has duty of care to B if A could reasonably have foreseen that A’s conduct could cause
harm and that B would suffer that harm
2. Standard of Care:
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 the
(Duty may extend beyond the person directly injured – family members, spouse or spouse to
3. Causation:
Plaintiff must be injured as a result of the breach of duty if care owed (Breach must cause
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(If there are intervening causes that law apportions fault to both defendants if both have
harmed the plaintiff)
-Extent of damages
- If A is liable in negligence to B, B is liable for all direct damages (damages that flow from
breach without intervening cause), even damages that could not be expected
- Thin skull victimsuffers extensive injuries from a small accident (take you victims as
they come)
-Economic Loss
- Law compensates for economic loss if there is physical injury to persons or property
- “Pure loss” (loss without injury to property or person) can be recovered – loss resulting
from inability to use damaged property or need to repair property is recoverable, IF there
is a sufficiently lose relationship between the property damage and the person suffering
the economic loss as a result of that damage
-Burden of Proof –
- Plaintiff needs to prove causation
Sometimes plaintiff may not be able to demonstrate how the harm occurred so they
must please “res ipsa loquitur” (the thing speaks for itself) based on the idea that the
most likely cause of the plaintiff’s injury is the negligence of the defendant
- Defendant must prove that they were not at fault, or owed no duty to the plaintiff, or the
damage was too remote
-Contributory Negligence and the Apportionment of Loss
- Courts will apportion the fault and reduce the amount of the loss in proportion to the
plaintiff’s fault
- If the plaintiff’s subsequent action aggravate the loss, the amount of recovery will be
-Products Liability – Liability of manufacturers for injury or loss arising from defects in
- Defective individual item (product)or
- Defective design
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1. Duty of Care:
Products liability extends duty of care by the manufacturer to all those use products are
injured as a result
Manufacturer must prove that the cause of defect is not something for which it should be
liable (IE: product caused an injury that was no foreseeable (one that is not normally
associated with the product)
2. Standard of Care:
Manufacturer must prove that they took all reasonable precautions to prevent the defective
product from reaching customer
3. Causation:
The customers must prove that the product cause harm
4. Duty to Warn: ***
- If there are dangers, the manufacturer must warn of them
- Manufacturer must warn even after the fact
- If the duty to warn is the ground of the suit, plaintiff must show the she would not have
used the product after warning
-Strict Liability on the Manufacturer
- If the manufacturer can, under the present state of technology, be aware of the defect,
the manufacturer will be liable for damage from that defect
- If the product can be produced at all in a manner that eliminates the defect, the
manufacturer is liable for the defect
-Occupier’s Liability
-Duty of owner or occupier of land to visitors
- Owner or occupier must not be negligent concerning dangers on property (keep premise
- Duty applies to trespassers – the duty is generally not to harm the trespassers or be
reckless in doing something that might harm the trespasser
Other Torts
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