Textbook Notes (368,652)
Canada (162,033)
LAW 122 (625)
Stan Benda (71)
Chapter 6


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Law and Business
LAW 122
Stan Benda

Chapter 6 NegligenceNegligence in nonlegal terms carelessness In the legal term it is much the sameoTorts of Negligencedetermines whether the defendant can be held liable for carelessly causing the plaintiff to suffer a loss or injury The tort of negligence requires the plaintiff to prove that the defendantOwed a duty of care in that it was required to act carefully toward the plaintiffBreached the standard of care by acting carelesslyCaused harm to the plaintiffEven if the plaintiff proves those 3 elements the defendant may be able to avoid liability by proving a defence 3 possibilities are especially important The defendant may show that at least one of these defences existedThe plaintiff injury was caused by it owns contributory negligenceThe plaintiff voluntarily assumed the risk of being injured by the defendantThe plaintiff was injured while engaged in some form of illegal behaviourProfessional negligence simply refers to negligence that is committed by a professional person ie a lawyer banker etcThe law of negligence contains a tension between 2 important values On one hand the courts want scope of liability in order to compensate ppl who suffer injuries On the other hand the courts recognize that the imposition of liability sometimes actually hurts societyThe tension is between the desire to provide compensation and th desire to encourage socially useful activities Eg If a business compensates everybody it might not be able to carry onBut judges dont want discourage doctors from practicing in risky areasDUTY OF CAREoDuty of Care occurs when the defendant is required to use reasonable care to avoid injuring the plaintiff Without a duty of care there cannot be a liability even if the defendant carelessly injured the plaintiffTest for Determining the Existence of Duty of CareDuty of care is required for an action in negligence Based on Donoghue v Steveson the Canadian courts have developed a unique test for the creation of a duty of careThe 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 We already know for instance that the bottler of a beverage owes a duty of care to a consumerIf the duty of care question has not already been answered for the particular type of case that the judge is hearing then it will be necessary to ask 3 questions in order to determine whether or not a duty of care should existiWas it reasonably foreseeable that the plaintiff could be injured by the defendants carelessnessiiDid the parties share a relationship of sufficient proximityiiiIf an injury was reasonably foreseeable and if the parties shared a relationship of sufficient proximity then a duty of care will presumably exist The judge might still deny a duty of care however on the basis of policy reasonReasonable Foreseeable1 of 6
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