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LAW 122 (625)
Chapter 6

ch. 6 -Negligence .docx

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Law and Business
LAW 122
Theresa Miedema

Chapter 6 – Negligence - Most important tort of all - In non-legal terms, means “carelessness” - Legal meaning: the tort of negligence – determines whether the defendant can be held liable for carelessly causing the plaintiff to suffer a loss or injury. - Issue can arise in numerous ways: a manufacturer may product a beverage that makes a consumer sick, an investment counsellor’s bad advice may lead a client to purchase worthless stocks, a golfer may hit an errant shot that cracks a spectator’s skill, a builder may construct a defective bridge that collapses onto a motorist’s vehicle, an employer may write an inaccurate report that prevents an employee from receiving a promotion, etc. - Plaintiff must prove: o That the defendant owed a duty of care, in that they were required to act carefully toward the plaintiff o Breached the standard of care by acting carelessly o Breach of standard caused harm to the plaintiff - Defendant may be able to avoid liability by proving a defence: 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 Was injured while engaged in some form of illegal behaviour - Professional negligence – misleading b/c it suggests that there is a separate tort by that name – it simply just refers to negligence that is committed by a professional person such as a baker, lawyer, or an accountant o The cause of action in negligence is flexible enough to reflect different types of situations o Ex. the standard of care always requires the defendant to act as a reasonable person would act in similar circumstances. The precise meaning of that requirement depends upon the circumstances. It refers to the special considerations that shape the general cause of action in negligence when it’s applied to professional people. - The law of negligence contains a tension between 2 important values: 1) The courts want a wide scope of liability in order to compensate people who suffer injuries 2) The courts recognize that liability sometimes hurts society • If businesses had to fully compensate every person whom it injured, it might be forced out of business. • In some situations, that would be a good thing.An especially hazardous industry that produces few social benefits perhaps should be shut down. In other situations, it may be in society’s best interests to protect certain types of activities from liability. • The tension between the desire to provide compensation and the desire to encourage socially useful activities appears in all areas of tort. • The judge can often reasonably find for either the plaintiff or the defendant - The actual decision frequently depends on which interests the judge finds more compelling Duty of Care - Courts use the concept of duty of care to control the scope of liability under the cause of action in negligence - Aduty of care exists if the defendant is required to use reasonable care to avoid injuring the plaintiff - W/o duty of care there can’t be liability, even if the defendant carelessly injured the plaintiff Determining Existence of Duty of Care - Duty of care exists: defendant may be liable - No duty of care exists: defendant not liable for negligence o Can now be recognized any time certain conditions are met (pg. 136-137) - First look to the Common Law for precedent - If no precedent, ask 3 questions in order to determine whether or not a duty of care should exist: 1) Was it reasonably foreseeable that the plaintiff could be inured by the defendant’s carelessness? 2) Did the parties share a relationship of sufficient proximity? 3) If YES to 1) and 2), then a duty of care presumably will exist. The judge might still deny a duty of care, however, on the basis of policy reasons 1) Reasonably Foreseeable - Objective tests - The issue is not whether the defendant personally knew that its activities might injure the plaintiff, it’s whether a reasonable person in the defendant’s position would have recognized that possibility - This test is intended to strike a balance between the parties - Purpose of requirement: fairness o It would be unfair to deny compensation b/c the defendant was unaware of a danger – the plaintiff shouldn’t have to suffer b/c the defendant wasn’t paying attention o It would be unfair to hold the defendant liable for every injury that it creates, even those that were unforeseeable.  Aperson can’t take precautions against a hidden danger 2) Proximity - Aduty of care won’t be recognized unless there was also a relationship of proximity - Proximity means there must somehow be a close and direct connection between the parties o Physical proximity – when the defendant carelessly swings a baseball bat while standing next to the plaintiff o Whether the parties shared a social relationship – a parent is required to look after a child, but a stranger isn’t o Commercial relationship – a tavern may be responsible if a drunken customer later causes a traffic accident, but the host of a house party may not be responsible if a drunken guest injures a pedestrian on the way home o Direct casual connection – between the defendant’s carelessness and the plaintiff’s injury – a motorist who rams into a bridge will be liable for the damage to the bridge, but probably not for the profits that were lost when customers couldn’t reach a store that was located on the other side of the bridge o Reliance – whether the plaintiff relied on the fact that the defendant represented that they would act in a certain way – a railway company may have a duty to continue operating a safety gate that it voluntarily installed and that pedestrians have come to rely upon Duty of Care for Professional Statements - Negligent statements: common business risk o The Canadian economy is increasingly based on the supply of info and advice, rather than on the prod’n of physical goods  The law of negligence must strike a balance between the need to compensate people whoa re hurt by negligent statements and the need to protect businesses from the potentially disastrous consequences of being held liable - Careless statements are different from careless actions: o Since the dangers associated w. physical conduct are usually obvious, the need for precaution is normally clear as well. b/c the risks associated w. statements are often hidden, the need for care is usually less apparent. People tend to speak loosely, especially in social settings o “Words are more volatile than deed” – the risk created by a careless action is limited in time and space. If a duty of care exists for a careless statement, there’s a possibility of “liability in an indeterminate amount for an indeterminate time to an indeterminate class” o Careless actions usually result in property damage or personal injures. Careless statements usually result in pure economic losses, financial losses that aren’t tired to any property damage or personal injuries. - As a business person, you should be very careful about providing info and advice – if you don’t wish to be held liable for your statements, you should disclaim responsibility. You should be careful about relying on statements made by others. While you may be entitled to compensation, your claim may also be rejected for lack of proximity 3) Policy - a duty of care won’t necessarily exist even if there was reasonable foreseeable ability and proximity. The court will also ask whether liability should be denied on policy grounds. Proximity deals with the relationship that exists between the parties, whereas policy is concerned with the effect that a duty of care would have on the legal system and on society generally. - Court may ask whether the recognition of a duty of care would: o “Open the floodgates” by encourage a very large number of people to swamp the courts with lawsuits (that’s one reason why the courts are reluctant to recognize duty of care for negligent statements) o Interfere with political decisions (that’s why a govn’t may be able to escape responsibility for deciding that it couldn’t afford to frequently check a stretch of road for fallen trees) o Hurt a valuable type of relationship (one reason that a mother doesn’t owe a duty of care to her unborn child) Breach of the Standard of Care - The first element of the cause of action in negligence requires the plaintiff to prove that the defendant owed a duty of care. The second element requires the plaintiff to prove that the defendant breached the standard of care o The standard of care tells the defendant how they should act o 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 frictional character o The reasonable person test gives the courts a great deal of flexibility in deciding whether the defendant acted carelessly. Important factors: (pg. 144)  Reasonable test is said to be objective. It doesn’t make allowances for the defendant’s subjective, or personal, characteristics. (lower standard of care for children)  Areasonable person takes precautions against reasonably foreseeable risks  Reasonable person is influenced by likelihood of harm and the potential severity of harm  Reasonable person is more likely to drop affordable precautions  Acts in ways that have great social utility even with some risk (ambulance)  Sudden peril doctrine: less care is required in emergencies – even a reasonable person may make a mistake under difficult circumstances Standard of Care for Professionals: Professional Negligence: (pg. 145-146) - There must be an existence of a close relationship between the parties and the extent to which the client relied upon the professional - Standard of care professionals are expected to meet: o Aprofessional must act as a reasonable person, as the reasonable professional would act in similar circumstances 1. Must live up to the training that they received or claim to have received, more may be expected of a specialist, special allowances are not made for beginners – no allowance for inexperience and for exaggerated credentials 2. Unfair to judge the defendant’s actions in hindsight – soc is based on info that was r
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