CHAPTER 6 CLAIM IN NEGLIGENCE AND ITS FACTORS
TORT OF NEGLIGENCE: determines whether the defendant can be held liable for
carelessly causing injury to the plaintiff.
1. Duty of Care
2. Breached Standard of Care
3. Caused harm
1. Contributory Negligence
2. Voluntary Assumption of Risk
3. Illegal Behaviour
DUTY OF CARE
• Exists if the defendant is required to use reasonable care to avoid injuring the
• Without this, there cant be liability
• Businesses can be legal to consumers
• REASONABLY FORSEEABLE
o Did they know
o Close and direct relationship between the parties
o Social relationship
o Commercial relationship
o Casual connection
Duty of Care for Statements
CARELESS STATEMENTS v CARELESS ACTIONS
• Risks associated with statements are hidden
• Need for care is less apparent
• Statements usually result in pure economic loss
• Courts reluctant to compensate for pure economic loss
More likely to be imposed if….
• Defendant has special or expert knowledge or on a serious occasion.
• In response to an inquiry
• If defendant gets financial benefit from it
• If defendant communicated FACT rather than OPINION Less likely if…
• Defendant issued disclaimer
It will only be recognized if….
• Defendant knew that plaintiff might rely on statement
• Plaintiff relied on statement for INTENED purpose
o Effect that duty of care would have on legal system and society.
o May hurt relationships, swamp courts
BREACH OF THE STANDARD OF CARE
• Tells defendant how it should act
• Reasonable Person Test: required defendant to act in the same way that a
reasonable person would act in similar circumstances.
• Does not maker allowances for defendants personality
• Lower standards for children
• Something may be reasonably foreseeable even if it is unlikely to occur
• REASONABLE PERSON
o Likelihood of harm
o Severity of harm
o Affordable prevention
o SUDDEN PERIL DOCTRINE: states that even a reasonable person may
make mistakes in tough situations (EG EMERGENCIES)
STANDARD OF CARE FOR PROFESSIONALS
• If people say the have expert power and then say they were lying, they cannot
• Special allowances are NOT made for beginners. Still must conform to
1. Must act as a reasonable professional would
2. Based on information available to defendant at time of accident.
3. Mere errors of judgment do not result in liability (choosing what a physicians
would usually chose and then having it fail)
4. Approved practice generally cannot be held liable. BUT IF A STANDARD WAS
TO DO SOMETHING NEGLIGENT, YOU CANNOT CLAIM THAT YOU WERE
MERLY CONFORMING TO THE NEGLIGENCE.
5. Statutory duty maynot MUST provide evidence that the standard of care was not
STANDARD OF CARE FOR PRODUCTS
• Product liability can occur when person is injur