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Chapter 6

LAW 122- Chapter 6- Negligence.docx

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Law and Business
LAW 122
Theresa Miedema

LAW 122- Chapter 6 - Negligence  ***Read Cases – Many references  In non-legal terms negligence usually means ―carelessness.‖ It’s legal name is much the same: tort of negligence determines whether the defendant can be held liable for carelessly causing the plaintiff to suffer a loss or injury  Example: manufacturer makes beverage that makes consumer sick 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 The defendant may show the plaintiff:  Was guilty of contributory negligence that caused or contributed to the injury  Voluntarily assumed the risk of being injured by the defendant  Was injured while engaged in some form of illegal behaviour  The term professional negligence simply refers to negligence that is committed by a professional person, such as a banker, a lawyer, or an accountant. For example, the standard of care always requires the defendant to act as a reasonable person would act in similar circumstances Duty of Care p.130  A duty of care exists if the defendant is required to use reasonable care to avoid injuring the plaintiff Test for Determining the Existence of Duty of Care  A duty of care is required for an action in negligence  How does a judge decide when to impose such a duty? – there is no general answer – a duty of care was restricted to certain types of relationships such as innkeeper and traveler, lawyer and client, railway company and passenger, and surgeon and patient.  A plaintiff could win only if it fell within one of those relationships Criterion of a duty of care 1. Reasonable Foreseeability  Objective test  ―Would reasonable person have foreseen risk of loss?‖  Broad concept usually satisfied  Sufficient if not far-fetched (even if not probable)  Purpose of requirement: fairness  Unfair to hold defendant liable for every loss  Impossible to prevent unforeseeable event  Unfair to deny liability for subjective deficiencies  Plaintiff entitled to expect reasonable conduct 2. Proximity  A duty of care will not be recognized unless there was also a relationship of proximity  Close and direct connection between the parties -- in simple situations, the court will focus on physical proximity (e.g. the defendant carelessly swings a baseball bat while standing next to the plaintiff)  In more complicated situations the court will look at the issue of proximity from a variety of perspectives.  Social (e.g. bond between parent and child)  Commercial (e.g. alcohol sold to driver)  Direct causal (e.g. loss occurred without other factors)  Reliance (e.g. reasonable use of financial advice) Duty of Care for Professional Statement (pg.133-134) 1 LAW 122- Chapter 6 - Negligence  Negligent statement: common business risk  The Canadian economy is increasingly based on the supply of information and advice, rather than the production of physical goods.  Statements by professionals may be inaccurate  Economy increasingly based on information  Special rules are needed because careless statements are different from careless actions in 3 ways.  Need for precaution less clear with words  ―Words are more volatile than deeds‖  Words more likely to cause pure economic loss 3. Policy  A duty of care will not necessarily exist even if there was reasonable foreseeability and proximity  Policy is concerned with the effect that duty of care would have on the legal system and on society in general  Policy = overriding considerations o Proximity: focus on parties’ relationship o Policy: focus on legal, social, political concerns  Effect of policy o Even if reasonable foreseeability… o Even if close proximity… o Duty of care rejected for external reasons  Examples of policy o No general duty to rescue  Compulsory altruism contrary to individualism o No duty of care on mother to unborn child  Fear of intolerable burden on pregnant women Breach of the Standard of Care p.137  Standard of care tells the defendant how it should act  It is breached when the defendant acts less carefully  The standard of care is based on the reasonable person test –the defendant must act in the same way that a reasonable person would act in similar circumstances  The reasonable person is a fictional character  The reasonable person test gives the court a great deal flexibility in deciding whether the defendant acted carelessly. Although it is impossible to list all of the relevant factors, we can identify some important ones.  The reasonable person test is said to be objective. It does not make allowances for for the defendant’s subjective, or personal, characteristics.  The reasonable person takes precautions against reasonably foreseeable risks. As long as it is not fancitical, something may be reasonably foreseeable even if it is unlikely to occur  The reasonable person is influenced by both the likelihood of harm and the potential severity of harm  The reasonable person is more likely to adopt affordable precautions  The reasonable person may act in a way that has great social utility, even though it creates risk  The standard of care requires the defendant to act as the reasonable person would act ―in similar circumstances.‖ The sudden peril doctrine states that even a reasonable person may make a mistake under difficult circumstances The Standard of Care for Professionals: Professional Negligence pg. 138 5 factors the courts pay attention to when dealing with professionals 1. First, the existence of a close relationship between parties and second, the extent to which the client relied upon the professional. Now must consider the standard of care that professionals are expected to meet  Professionals must live up to the training that they r received or claim to have received.  More expected to be a specialist rather than a generalist 2 LAW 122- Chapter 6 - Negligence  Special allowances are not made for beginners 2. Second, by the time a case gets into trial, it is often easy to say what the defendant could have done to avoid injuring the plaintiff. It would be unfair, however, to judge the defendant in hindsight 3. Third, carelessness is different from mere errors of judgment. The former can result in liability; the latter cannot. A professional does not have to be perfect. As long as the defendant’s mistake is the one that a reasonable professional might make, the standard of care is not breached 4. Forth, a professional who follows an approved practice generally cannot be held liable. Consequently, the standard of care is usually met if the defendant either complies with requirements established by professional organization or follows the same procedures that are used by other members of the profession 5. Fifth, just as compliance with a professional standard usually protects a professional from liability, so too compliance with a statutory standard may protect a defendant. The issue breach of statutory duty actually extends beyond t
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