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Chapter 6

Chapter 6 NEGLIGENCELaw 122.doc

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Law and Business
LAW 122
Theresa Miedema

Chapter 6 NEGLIGENCE Law 122 Tort of Negligence: determines whether the defendant can be held liable for carelessly causing injury to the plaintiff Ex. A manufacture may produce a beverage that makes a consumer sick Tort of Negligence requires the plaintiff to prove that the defendant:  owed a duty of care (relational issue between defendant and plaintiff), in that it was required to act carefully toward the plaintiff  Breached the standard of care (what the defendant did or failed to do) by acting carelessly  Caused harm (established a link, defendant could have changed the outcome) to the plaintiff  Need to prove all 3 if you are a plaintiff for negligence Defendant may be able to avoid liability if they show at least one of the three possibilities:  Plaintiffs harm caused by its own 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: refers to negligence that is committed by a professional person such as a banker or lawyer, or an accountant. Have to act as a reasonable person 2. Law of negligence contains a tension between two important values. On the one hand, the courts want a wide scope of liability in order to compensate people who suffer injuries. In the other hand, the courts recognize that the imposition of liability sometimes actually hurts society -quite difficult to sue a physician, largely because judges do not want to discourage doctors from practicing in risky areas, such as obstetrics. DUTY OF CARE Use to control the scope of liability under the cause of action of negligence. Duty of care: occurs when the defendant is required to use reasonable care to avoid injuring the plaintiff.----- without duty of care there cannot be a liability , even if the defendant carelessly injured the plaintiff. 1 TEST OF DETERMING DUTY OF CARE 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. Recently replaced those categories with a single test Donoghue v Stevenson (pg 131 ) Test:  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  If the duty of care question has not already been answered for the particular type of case that the judge is hearing, then three questions will be asked to see if duty of care should exist o 1. was reasonably foreseeable that the plaintiff could be injured by the defendant’s carelessness? o 2. Did the parties share a relationship of sufficient proximity? o 3. If an injury was reasonably foreseeable and if the parties shared a relationship of sufficient proximity, then a duty of care will presumably exits. The judge might still deny a duty of care, however, on the basis of Policy Reasons. 1. Reasonable Foresee ability  Test is objective  Important that reasonable person in the defendants position would have recognized that possibility.  Test is intended to strike a balance between parties  Plaintiff should not have to suffer because defendant was not paying attention  It would be unfair to hold the defendant liable for every injury that it creates. 2. Proximity  Duty of care will not be recognized unless there was also a relationship of proximity  There should be a close and direct connection between the parties o Whether parties shared a social relationship (parent look after child, stranger is not) o Shared a commercial relationship ( tavern may be responsible for drunken driver, while house party host may not be responsible for drunken guest) o If there was a direct causal connection (motorist who rams in bridge will be liable for damages but not for profits that were lost to a store due to the accident) 2 o Whether plaintiff relied on the fact that the defendant represented that it would act in a certain way ( railway company and safety gate ) Concept is very broad and open ended, court look all circumstances before recognizing a new duty of care DUTY of Care for Professional Statements Some information from professionals is inaccurate, and customers will suffer a loss due to this. -law of negligence should strike a balance between the need to compensate people who are hurt by the negligent statements and the need to protect business from the potentially disastrous consequences of being held liable. -careless statements are different from careless actions  Words are more volatile than deeds  Careless actions usually result in property damage or personal injury  Canadian courts apply special rules when deciding whether to recognize a duty of care if the defendants careless statement caused the plaintiff to suffer a pure economic loss Case 6.2 (pg 134-135) 1. you should be very careful about providing information and advice 2. you do not wish to be held liable for your statement, you should clearly disclaim responsibility 3. You should be careful about relying on statements made by others. 3. POLICY  Duty of care will not necessarily exist even if there was a reasonable foreseeability and proximity  Proximity deals with the relationships that exist between parties, whereas policy is concerned with the effect that a duty of care would have on the legal system and on society generally.  Ex, a court may ask whether a recognition of duty of care would: o Open the floodgates o Interfere with political decisions o Hurt a valuable type of relationship Duty of care and policy: Regulation of Professions  Many professions are governed by regulatory bodies  Professionals can be liable responsible if it hurts a person 3 BREACH OF THE STANDARD OF CARE  First element of the cause of action of negligence requires the plaintiff to prove that the defendant owed a duty of care  Second element requires the plaintiff to prove that the defendant breached the standard of care  Standard of care: tells the defendant how it should act  Breached- when he defendant acts less carefully  Standard
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