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Canada (161,763)
LAW 122 (625)


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Law and Business
LAW 122
Asher Alkoby

CHAPTER 6NEGLIGENCETort of negligence determines whether the defendant can be held liable for carelessly causing injury to the plaintiffExamples a manufacturer may produce a beverage that makes a consumer sick an investment counsellors bad advice may lead a client to purchase worthless stocks etcRequirementsPlaintiff should prove that the defendantduty of care owed a duty of care in that they were required to act carefully toward the plaintiffbreached standard of care breached the standard of care by acting carelesslycausation of loss caused harm to the plaintiffThree possibilities of defence that the defendant can use the plaintiff was guilty of contributory negligence that cause or contributed to the injury the plaintiff voluntarily assumed the risk of being injured by the defendant the plaintiff was injured while engaged in some form of illegal behaviourPreliminary matters1 sometimes people talk about professional negligence phrase is misleading because it suggests that there is a separate tort by that name but it just refers to negligence that is committed by a professional person2 the law of negligence contains a tensions between two important values On one hand the courts want a wide scope of liability in order to compensate people who suffer injuries On the other hand the courts recognize that liability sometimes hurts societyDUTY OF CAREDuty of care exists if the defendant is required to use reasonable care to avoid injuring the plaintiffTest for determining the existence of duty of care Traditionally no way to decide when to impose the duty a duty of care was restricted to certain types of relationships such as innkeeper and traveller lawyer and client surgeon and patient etc Plaintiff could win only if they fell within one of those relationships Eventually courts replaced those with a single test where conditions need to be met1 The judge will ask whether or not the duty of care question has already been answered for the particular type of case that is being litigated2 If the duty of care question has not already been answered then it will be necessary to all three questions in order to determine whether or not duty of care should existi Reasonable Foreseeability Was it reasonable foreseeable that the plaintiff could be injured by the defendants carelessness This test is objective based on whether a reasonable person in the defendants position would have recognized that possibilityii Proximity Did the parties share a relationship of sufficient proximity Basic idea is that there must somehow be a close and direct connection between the parties In more complication situations they may ask whether the parties shared a social relationship a commercial relationship a direct causal connection or if the plaintiff relied on the fact that the defendant represented that they would act in a certain wayiii Policy Even if previous two are met the judge can still deny a duty of care on the basis of policy reasons
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