November 6, 2012
Chapter 6 – Negligence
Word negligence means ‘carelessness’
Tort of negligence – determines whether the defendant can be held liable for carelessly causing
injury to the plaintiff.
Requires the plaintiff to prove that the defendant:
o Owed a duty of care, in that it was required to act carefully toward the plaintiff
o Breached the standard of care by acting carelessly
o Caused harm to the plaintiff
Even if the plaintiff can prove the above factors, the defendant may be able to avoid liability by
proving a defense by showing that the plaintiff:
o Was guilty of contributory negligence that caused or contributed to the injury
o Voluntarily assumed the risk of being injured by the defendant
o Ws injured while engaged in some form of illegal behaviour
Professional Negligence – Refers to negligence that is committed by a professional person, such
as a banker or lawyer. The special considerations that shape the general cause of action.
Tension between the desire to provide compensation and the desire to encourage socially useful
Duty of Care
Exists if the defendant is required to use reasonable care to avoid injuring the plaintiff. Controls
the scope of liability under the cause of action in negligence.
Without a duty of care, there cannot be liability.
A duty of care can now be recognized any time that certain conditions are met. If the duty of care
question has not already been answered for the particular type of case, then three questions
determine if it should exist:
o Was is reasonably foreseeable that the plaintiff could be injured by the defendant’s
o Did the parties share a relationship of sufficient proximity?
o What is the basis of policy reasons?
Reasonable Foreseeability –
o Test is objective. Whether a reasonable person in the defendant’s position would have
recognized that possibility.
o There must somehow be a close and direct connection between the parties. (Physical,
social, commercial, direct casual relationships)
o Duty of Care for Professional Statements –
o Careless statements result in pure economic loss
Jessica Medina Chapter 6 - Negligence November 6, 2012
o Policy is concerned with the effect that a duty of care would have on the legal system and
on society generally (floodgates, politics)
Breach of the Standard of Care
Tells the defendant how it should act
Based on the reasonable person test – requires the defendant to act in the same way that a
reasonable person would act in similar circumstances:
o Objective test that does not make allowances for the defendants’ subjective
o Takes precautions against reasonably foreseeable risks
o Influenced by the likelihood of harm and potential severity of harm
o Likely to adopt affordable precautions
o Act in a way that has great social utility
o Act in similar circumstances
Standard of Care for Professionals – Professional Negligence:
o Must act as the reasonable professional would act in similar circumstances
o Based on information that was reasonably available to the defendant at the time of the
o Errors of judgment is allowed if a reasonable physician might have done the same
o Professionals who follow an approved practice generally cannot be held liable
o Breach of statutory duty is a factor to be considered
Standard of Care for Manufactured Products: Product Liability –
o Product liability can occur when a person is injured by a product
o Plaintiff does not have to prove that the defendant carelessly provided a defective
product. It is enough that the contract was defective in a way that caused harm.
o Canada product liability is not as strict as the liability in the United States.
Advantages and disadvantages of a strict tort of product liability:
1. Better ensure that consumers are 1. Unfairly require a manufacturer to
compensated for injuries that are pay for an injury even though it
caused by defective products. had used reasonable care.
2. Encourage manufacturers to 2. Increase the number of lawsuits
develop safer products. against manufacturers.
3. Require manufacturers to pay for 3. Increase the cost of liability
the losses that they cause as a insurance for manufacturers.
result of selling their products and 4. Eventually increase the cost of
earning their profits. products.