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MCS 3040 (228)
Chapter 11

Chapter 11 Business & Consumer Law

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Marketing and Consumer Studies
MCS 3040
Joseph Radocchia

Chapter 11 The tort of Negligence The Law of Negligence  Tort of negligence is a careless act that causes harm to another/ failure to show reasonable care Reasonable Care: The care a reasonable person would exhibit in a similar way  The tort law of negligence makes the defendant liable for failing to act reasonably eg. Driving to fast, unprofessional advice etc.  Negligence law like tort law seeks to compensate victims for their loss or injury Steps to a Negligence Action Step 1: Does the defendant owe the plaintiff a duty of care? If yes, proceed. Step 2: Did the defendant breach the standard of care? If yes, proceed to the next step. Step 3: Did the defendant’s careless careless act (or omission) cause the plaintiff’s injury? Step 4: Was the injury suffered by the plaintiff too remote? If not, the plaintiff has proven negligence Neighbor: Anyone who might reasonably be affected by another’s conduct. Duty of care: The responsibility owed to avoid carelessness that causes harm to others.  A court must 1 ask whether the case at bar presents a novel situation or not. If the case is comparable to an already-decided case in which duty of care was recognized, stage 1 can be skipped and the plaintiff can proceed directly to the 2 stage. If the case issue is novel, court is required to assess the issue of duty. Prima Facie: At first sight or on first appearances Step 1 Stage 1: Is there a prima facie duty of care?: Court must consider several smaller question a. Is the harm that occurred reasonably foreseeable consequence of the defendants act? > If yes, proceed to next question b. Is there a relationship of sufficient proximity between the parties such that it would not be unjust or unfair to impose a duty of care on the defendant? > Proximity considered whether the specific circumstances of the party’s relationship are such that the defendant is under an obligation to be mindful of the plaintiff’s legitimate interests in conducting his/her affairs > If yes proceed to stage 2 Stage 2: Are there residual policy considerations outside the relationship of the parties that may negative the imposition of a duty of care?  This stage asks the question to determine if imposing duty in this circumstance would be unwise  Must determine if there are any considerations that would eliminate or reduce the duty Step 2: Did the defendant breach the standard of care?  Defendant’s conduct is judged according to the standards of behaviour that would be observed by the reasonable person in society Reasonable Person: The standard used to judge whether a person’s conduct in a particular situation  Where the defendant exercises specialized skills, the standard of a reasonable person. Professionals such as doctors, accountants etc. must meet a higher or specialized standard b/c of their level of expertise of the average member of society is simply an inadequate as a measure of competence  Where the activity or product poses a high risk, the law imposes higher standards of care Step 3  Did the defendant’s careless act (or omission) cause the plaintiff’s injury? Causation: The relationship that exists between the defendant’s conduct and the plaintiff’s loss or Injury.  Legal test for causation is sometimes debated courts generally have little difficulty reaching a decision on causation by asking: would the harm not have occurred but for the defendant’s actions? Step 4: Was the injury suffered by the plaintiff too remote?  The court asks, “even if there is an obligation to take reasonable care and it was breached, how far will the legal liability of the defendant stretch?  Idea here is that there must be some limit on the defendants responsibility for the consequences of his negligence  Remoteness of Damage: The absence of a sufficiently clos
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