Chapter 6.docx

15 views6 pages
15 Apr 2012
Course
Professor

For unlimited access to Textbook Notes, a Class+ subscription is required.

Chapter 6 Negligence
Tort of negligence determines whether the defendant can be held liable for carelessly
causing the plaintiff to suffer a loss or injury (ex. On pg 129)
Tort of negligence requires the plaintiff to prove that the defendant
o Owed a duty of care, in that it was required to act carefully toward the plaintiff
o Breached the standard of care by acting carelessly
o Caused harm to the plaintiff
Even if plaintiff proves those parts, defendant may be able to avoid liability by proving a
defence, 3 possibilities the defendant may show that the
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 (shown in fig 6.1 on
pg 129)
Duty of care
Duty of care exists if the defendant is required to use reasonable care to avoid injuring
the plaintiff
Test for determining the existence of duty of care
Duty of care is needed for an action in negligence (Case brief 6.1 on pg 131)
Based on Donohue v Stevenson, Canadian courts have developed a unique test for the
creation of a duty of care (on pg 131-132)
Reasonable foreseeability
o This means whether a reasonable person in the defendant’s position would have
recognized that its activities might harm the plaintiff
o This test brings a balance btwn the 2 parties
o Plaintiff should not suffer just cuz the defendant was not paying attention
o Also defendant should not be always held liable for every injury that it creates cuz
a person cannot take precautions against a hidden danger (Business Decision 6.1
on pg 132 useful)
Proximity
o Duty of care would not be recognized if there was no relationship of proximity
o This means there must somehow be a close & direct connection btwn the parties
o Court may focus on physical proximity (ex. On pg 133)
o It may focus on
Parties sharing a social relationship (ex. On pg 133)
If parties shared a commercial relationship (ex. On pg 133)
If there was a direct casual connection btwn the defendant’s carelessness
& the plaintiff’s injury (ex. On pg 133)
Unlock document

This preview shows pages 1-2 of the document.
Unlock all 6 pages and 3 million more documents.

Already have an account? Log in
If the plaintiff relied on the fact that the defendant represented that it
would act in a certain way (ex. On pg 133)
o Duty of care for professional statements
In business contexts, negligence statements is a concern
Ex. On pg 133
Law of negligence must bring a balance btwn the need to compensate ppl
who r hurt by negligent statements & the need to protect businesses from
the possible terrible consequences of being held liable
Special rules r needed cuz careless statements r different from careless
actions in 3 ways
Since dangers with physical conduct r obvious, the need for
precaution is also clear (ex. On pg 133) but risks linked with
statements r often hidden, the need for care is also less obvious
Risks created by a careless action are limited in time & space but
in careless statement there is a possibility that it can happen
anywhere anytime (ex. On pg 134)
Careless actions results in property damage or personal injuries but
careless statements results in pure economic losses or financial
losses (ex. On pg 134)
Policy
o Court also looks at the policy grounds
o Policy is concerned with the effect that a duty of care would have on the legal
system & on society generally (ex. On pg 135)
o Duty of care & policy: regulation of professions
More on pg 136 & Case Brief 6.3 is useful
Breach of the standard of care
First part required plaintiff to prove that the defendant owed a duty of care
Second part requires the plaintiff to prove that the defendant breached the standard of
care
o Standard of care tells the defendant how it should act
o It is breached when the defendant acts less carefully
o Standard of care is based on the reasonable person test which requires the
defendant to act in the same way that a reasonable person would act in similar
situation
o Reasonable person test gives courts a great deal of flexibility in deciding whether
the defendant acted carelessly, some important relevant factors r
It is said to be objective, it does not make exceptions for the defendant’s
subjective (one-sided) or personal characteristics (ex. on pg 137)
Unlock document

This preview shows pages 1-2 of the document.
Unlock all 6 pages and 3 million more documents.

Already have an account? Log in

Get access

Grade+
$10 USD/m
Billed $120 USD annually
Homework Help
Class Notes
Textbook Notes
40 Verified Answers
Study Guides
1 Booster Class
Class+
$8 USD/m
Billed $96 USD annually
Homework Help
Class Notes
Textbook Notes
30 Verified Answers
Study Guides
1 Booster Class