LAW 122 Chapter Notes - Chapter 6: Contributory Negligence
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Chapter 6: Negligence
Negligence, in non-legal terms usually means “carelessness.” In the legal term it is much
oTorts of Negligence: determines whether the defendant can be held liable for carelessly
causing the plaintiff to suffer a loss or injury. The tort of negligence requires the plaintiff to
prove that the defendant:
Owed a duty of care, in that it was required to act carefully toward the plaintiff.
Breached the standard of care by acting carelessly.
Caused harm to the plaintiff.
Even if the plaintiff proves those 3 elements, the defendant may be able to avoid liability
by proving a defence. 3 possibilities are especially important. The defendant may show
that at least one of these defences existed:
The plaintiff injury was caused by it owns contributory negligence.
The plaintiff voluntarily assumed the risk of being injured by the defendant.
The plaintiff was injured while engaged in some form of illegal behaviour:
Professional negligence simply refers to negligence that is committed by a professional
person (i.e. a lawyer, banker etc.)
The law of negligence contains a tension between 2 important values. On one hand, the
courts want scope of liability in order to compensate ppl who suffer injuries. On the other
hand, the courts recognize that the imposition of liability sometimes actually hurts
E.g. If a business compensates everybody, it might not be able to carry on.
DUTY OF CARE
oDuty of Care: occurs when the defendant is required to use reasonable care to avoid injuring
the plaintiff. Without a duty of care, there cannot be a liability, even if the defendant carelessly
injured the plaintiff.
Test for Determining the Existence of Duty of Care
Duty of care is required for an action in negligence. Based on Donoghue v Steveson, the Canadian
courts have developed a unique test for the creation of a duty of care:
The judge will first ask whether or not the duty of care question has already been
answered for the particular type of case that she is hearing. We already know, for
instance, that the bottler of a beverage owes a duty of care to a consumer.
If the duty of care question has not already been answered for the particular type of case
that the judge is hearing, then it will be necessary to ask 3 questions in order to
determine whether or not a duty of care should exist:
i.Was it reasonably foreseeable that the plaintiff could be injured by the
ii.Did the parties share a relationship of sufficient proximity?
iii. If an injury was reasonably foreseeable, and if the parties shared a
relationship of sufficient proximity, then a duty of care will presumably exist.
The judge might still deny a duty of care, however, on the basis of policy
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Chapter 6: Negligence
The reasonable foreseeable test is objective. It is based on whether a reasonable person in
the defendant’s position would have recognized the possibility that its activities might
injure the plaintiff.
It would be unfair to deny compensation simply b/c the defendant was unaware of a
danger. However, it is unfair to hold the defendant liable for every injury, even those that
were unforeseeable; a person cannot take precaution for every hidden danger.
A duty of care will not be recognized unless there was also a relationship of proximity.
The basic idea is that there must be somehow be a close & direct connection b/t the
In simple situations, the court will focus on physical proximity.
In more complicated situations, however, the court will look at the issue of proximity
from a variety of perspectives. Depending on the circumstance, the judge may ask:
Whether the parties shared a social relationship
Whether the parties shared a commercial relationship
Whether there was a direct causal connection b/t the defendant’s carelessness & the
Whether the plaintiff relied on the fact that the defendant represented that it would act
in a certain way.
Duty of Care for Professional Statements
In a business context, the best example concerns negligent statements. The Canadian
economy is increasingly based on the supply of info and advice, thus some of the
statements based will be inaccurate. And therefore customers and clients will suffer as a
Special rules are needed b/c of careless statements are diff. from careless actions in at
least 3 ways
i.Since the danger associated with physical conduct are usually obvious, the need for
precaution is normally clear as well. E.g. if you swing a bat in a crowded room, you
may hurt someone.
ii. “Words are more volatile than words.” In most situations, the risk created by a
careless action is limited to time and space. In contrast, if a duty of care exists for a
careless statement, there is a possibility of “liability in an indeterminate amount for
an indeterminate time to an indeterminate class.” E.g. If a financial report created
for personal purposes was mistakenly distributed to the public and it contains
inaccurate info, ppl might be suffer financial losses down the road.
iii.Careless statements results in pure economic losses, financial losses that are not tied
to any property damage or personal injuries.
A duty of care will not necessarily exist even if there was reasonable foreseeability &
proximity. The court will also ask whether liability should be precluded on policy
grounds. A policy is concerned with the effect that a duty of care could have on the legal
system and on society.
“Open the floodgates” by encouraging a very large number of people to swamp the
courts with lawsuits.
Interferes with political decisions.
Hurts a valuable type of relationship
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