AFM231 Chapter Notes - Chapter 11: Product Liability, Contributory Negligence, Strict Liability
18 May 2018
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Chapter 11 – The tort of negligence
The Law of Negligence
What is negligence?
• the law understands carelessness as a failure to show reasonable care- the care that a reasonable
person would have shown in a similar situation
• negligence very common in the commercial world
• the plaintiff need not show that the defendant intended to cause the damage. Instead, the tort of
negligence makes the defendant liable for failing to act reasonably
• business law in practice: MEAT- a company that process food made a lot of people die from their
product because it had a bacterium known as Listeria Monocytogenes. The CEO recalled the
products, closed the plant, and tested for that bacteria. Jennifer consumed the product prior to the
recall and became sick and missed months of work. She got a lawyer after and Meat has been made
a subject of a class action.
• Jennifer can succeed only if she can show that Meat failed to use reasonable care in the
manufacture of the product she consumed
• Negligence law like tort law in general seeks to compensate victims for loss or injury
• Deteies ho’s liale ad ho uh
• Without it, usiess ould e elutat to podue eause the ould’t ko the ost of
liability in negligence
Establishing a Negligence Action
• The elements in a tort action lack a certain specificity. Their purpose is to describe general standards
to help the court assess if defendant is negligent
1. Does the defendant owe the plaintiff a duty of care?
• Meat will be liable if it owes Jennifer a duty of care (the responsibility owed to avoid carelessness
that causes harm to others)
• Neighbour piiple, eas aoe ho ight easoal e affeted the defedat’s odut.
Meat will owe them a duty of care
find more resources at oneclass.com
find more resources at oneclass.com
• Stage 1: in the relationship between the plaintiff and defendant, is there a prima facie duty of care?
Prima facie- at first sight or no first appearances
• The plaintiff must demonstrate reasonable foreseeability: That the harm that occurred was
a reasonabl foeseeale oseuee of the defedat’s at
• AND
• Proximity: that there is 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 (whether the
defendant is under a oligatio to e idful of the plaitiff’s legitiate iteests i
conducting his or her affairs)
• Stage 2: are there residual policy considerations outside the relationship of the parties that may
negate the imposition of a duty of care?
• No longer considers the relationship of parties
• Determine whether imposing a duty would be unwise because it would extend liability too
far
• Its lea that Meat oes a dut of ae to the osues eause it’s easoal foeseeale that
careless acts could cause harm and the relationship between them is of sufficient proximity to
establish a duty of care
• Under stage 2, check if there are general considerations that ought to eliminate or reduce that duty
so defendants are not liable to unreasonably broad, unknowable, and indeterminate extent
• Likely to arise in area of pure economic loss e.g. loss of profit
• I Meat’s ase, the judge would certainly not find any reason under stage 2 that would
eliiate Meat’s dut of ae to osues
2. Did the defendant breach the standard of care?
• I geeal, the defedat’s odut is judged i opaiso to a easoale peso i soiet
• Where the defendant exercises specialized skills such as doctors, lawyers, the standard of the
reasonable person described above is not applied. They must meet a higher standard of care
• When the activity or product poses a high risk, the law imposes a higher standard of care
• Fo eat, the uial eleae ould e ho saitatio at the defedat’s plat easued up to
standards in the industry ad hethe thee ee a failues i Meat’s hygiene protocol
3. Did the defedat’s aeless at o oissio ause the plaitiff’s iju?
• Legal test for causation the elatioship that eists etee the defedat’s odut ad the
plaitiff’s loss or injury) is sometimes debated
• Cout ould ask: ould the ha ot hae oued ut fo the defedat’s atios?
• Gie that Listeia as foud i Meat’s peises ad i soe of its poduts, iludig the
kind consumed by Jennifer, causation appears to be in place
4. Was the injury suffered by the plaintiff too remote?
• Court asks, ee if thee is a oligatio to take easoale ae ad it as eahed, ho fa ill
the legal liailit of the defedat steth?
• Jennifer was sickened by listeriosis and so the injury is not too remove and is clearly a
easoale foeseeale oseuee of Meat’s egligee
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
The ceo recalled the products, closed the plant, and tested for that bacteria. Jennifer consumed the product prior to the recall and became sick and missed months of work. She got a lawyer after and meat has been made a subject of a class action. Establishing a negligence action: the elements in a tort action lack a certain specificity. Likely to arise in area of pure economic loss e. g. loss of profit. I(cid:374) ge(cid:374)e(cid:396)al, the defe(cid:374)da(cid:374)t"s (cid:272)o(cid:374)du(cid:272)t is judged i(cid:374) (cid:272)o(cid:373)pa(cid:396)iso(cid:374) to a (cid:396)easo(cid:374)a(cid:271)le pe(cid:396)so(cid:374) i(cid:374) so(cid:272)iet(cid:455: where the defendant exercises specialized skills such as doctors, lawyers, the standard of the reasonable person described above is not applied. It is only in a relatively few areas, such as negligent misstatement, that a plaintiff can recover for pure economic loss: the law requires the plaintiff to prove each and every element in a negligence action.
