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BUS 393 (52)
Chapter 5

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Business Administration
BUS 393
Shafik Bhalloo

Chapter 5: Negligence, Professional liability and Insurance 1. Negligence  Inadvertent, careless conduct that causes injury to other  Important area of tort liability for professionals 2. Negligence: It’s A, B, C, and D  Essential Elements: -A: A duty to exercise care -B: Breach of the standard of care -C: Causation- the act cased the injury -D: Damages- Victim suffered a loss 3. Is a Duty owed?  Reasonable foreseeability test -If it would be apparent to a prudent person that the conduct was likely to cause injury- duty is owed.  We owe a duty to anyone we can reasonably anticipate might be harmed by our conduct 4. Anns Case  Is there any public policy reason to reduce or eliminate this duty? -The second policy aspect of the Anns test will only be applied to those new situations that don’t fit into a category of negligence where a duty of care has already been recognized by the courts.  Now unique to Canada in the common law world: in new situations or classes of cases where a duty of care has not been established, the court can apply the second half of the Anns case test negating or modifying that duty on the basis of policy considerations. 5. Case Summary  Donoghue v. Stevenson set several procedures in the law of negligence -The test to determine the existence of a duty -Product liability: manufacture owes a duty to customers -Privity of contract will not defeat an action for negligence in product liability case p148 6. A: A duty to exercise care must exist  Misfeasance -An act that causes harm to another (wrongdoing) -Court will provide remedy  Nonfeasance -A failure to prevent an injury -Courts reluctant to provide remedy  If a person attempts to help there is a duty to exercise reasonable care, courts reluctant to provide remedy without special relationship 7. B: Breach of the Standard of Care  What would a reasonable person have done in the circumstances?  Actions that fall below socially acceptable standard create liability for damages  Risk- The greater the risk of injury the higher the standard 8. Reasonable Person test  Reasonable person is a prudent person, in possession of all the facts, exercising care- absolutely consistently, all the time - Not the average person - Not the perfect person - Does not exist in reality 9. Liability of Children  Children liable for their torts -standard is that of a reasonable child of that age  Parents not generally responsible for their children’s torts -except there is obviously failure to control, instruct or supervise, or -a statute imposes a duty 10. C and D: Causation and Damages  “But for” test- “but for” the conduct of the plaintiff, no injury would have resulted (Physical causation) P153  Remoteness test- Whether specific type of injury suffered was reasonably foreseeable (Legal causation)  Thin skull rule:
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