Textbook Notes (363,339)
Canada (158,341)
LAW 122 (616)
Chapter 6

Chapter 6 Notes

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Ryerson University
Law and Business
LAW 122
Kernaghan Webb

Chapter 6: Negligence Negligence, in non-legal terms usually means carelessness. In the legal term it is much the same. o Torts 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 negligencesimply 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 society. E.g. If a business compensates everybody, it might not be able to carry on. D UTY OF C ARE o Duty 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 casethat 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 defendants carelessness? 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 reason. Reasonable Foreseeable 1 of 6 www.notesolution.com
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