Chapter 5.docx

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Western University
Management and Organizational Studies
Management and Organizational Studies 2275A/B
Cristin Keller

Chapter Five: Negligence, Professional Liability, and Insurance NEGLIGENCE  Unlike intentional torts, negligence involves inadvertent conduct causing injury or damage to others  Do NOT need to prove intention  Failure of the wrongdoer to live up to the degree of skill or care required in a certain circumstance; failure to act in a careful manner MUST PROVE: A: Duty of Care  Court must determine whether the defendant owed a duty of care to the plaintiff  Court uses the reasonable foreseeability test (foreseeable plaintiff test) to determine the existence of such a duty (set out in the Donoghue v. Stevenson case)  We owe a duty of care to anyone whom we can reasonably anticipate may be harmed by our conduct  Reasonable foreseeability test is further described in the English Anns Case which consists of two parts: 1. There was a degree of neighbourhood or proximity between the parties such that it the person being sued had thought of it, he or she would have realized that his actions posed a risk of danger to the other (essentially restates the Donoghue v. Stevenson reasonable foreseeability test). 2. The scope of the duty can be reduced where appropriate (this aspect will only be applied in cases that don’t fit into a category of negligence where a duty of care has already been recognized by the courts). Misfeasance: An unacceptable action Nonfeasance: When a person fails to do something; usually no duty in cases that involve nonfeasance EXCEPT in particular relationships such as a swimmer and a lifeguard or a child and a guardian B: Breach of the Standard of Care  Once the court has decided that the defendant DID owe the plaintiff a duty of care, it must be determined HOW careful the defendant should have been  We use the reasonable person test to decide what level of care should have been exercised (did they or did they not meet the standards of a “reasonable person”)  If the person did not meet the standards of a “reasonable person”, he is negligent and is liable for injuries incurred  What is reasonable will vary with the circumstances and looking at similar past cases to see what a “reasonable person” would do can be helpful in determining standard of care  Risk of injury and expense or costs will also be taken into consideration in determining the required standard of care  Reasonable behaviour will also vary with the expertise of the person being sued. E.g., a doctor is expected to function at a higher level than a non-medical person and thus, would be held to a higher standard of care 1  If it is blatantly obvious that the defendant was negligent, liability may be established by circumstantial evidence  The court can find that the circumstantial evidence establishes a prima facie (“on the face of it”) case and turn to the defendants to produce evidence that they WERE NOT negligent  Without such evidence, the plaintiff will be successful C and D: Causation and Damages  Whereas intentional torts may be actionable per se (harm does not have to be done in order to sue), negligence requires that some sort of loss to a person or property be suffered  That damage must be a direct result of the careless conduct  Today, courts are willing to provide a remedy in cases of economic loss or where negligence has caused a mental disorder such as depression  “But For” Test: Causation  But for the conduct complained of, no injury would have resulted  If defendant didn’t do what he did, would the injuries still have occurred?  Remoteness Test – Legal Causation  Can you be reliable for something unexpected?  Courts will only impose liability when the defendant could have reasonably anticipated the nature of the injury or damage suffered  Liability is avoided if the injury is too remote or unforeseeable  Remoteness test  used to foresee whether or not the type of injury the plaintiff suffered could have been anticipated  Duty test  used to foresee whether or not danger to the plaintiff could have been anticipated  There IS a difference between the two**  Thin Skull Plaintiff Rule: “we take our victims as we find them”  If the type of injury was foreseeable, and the victim suffered greater injuries because of a unique physical condition, you are responsible for the extent of those injuries  Crumbling Skull Rule: If the plaintiff has pre-existing frailties that would have eventually resulted in the same outcome, the defendant is not responsible for the inevitable loss  MUST be used in conjunction with the Thin Skull Plaintiff Rule  Contributory Negligence  Historically, if defendant could prove that the plaintiff was also careless (e.g., not wearing a seatbelt), it was a complete bar to recovery (plaintiff would get nothing)  this is an all or nothing result and clearly unfair, SO...  Courts developed last clear chance doctrine which held the person who had the last opportunity to avoid the accident and failed to do so completely liable  this wasn’t much better either SO...  The Negligence Act (in Ontario) was developed to apportion responsibility between the two parties and compensation is paid in proportion to that assigned responsibility  Voluntary Assumption of Risk  Historically, when a plaintiff voluntary assumed the risk of injury, that was a complete bar to recovery of damages, e.g., getting into a car with a drunk driver  This is called volenti non fit injuria 2  Today, it is much harder for the defendant to escape liability; must prove that the plaintiff assumed both the physical risk and legal risk (person taking the risk makes it clear that he/she is absolving the other party of any responsibility)  This is very rare so courts usually end up using contributory negligence to settle these types of cases  If a rescuer voluntarily tries to save somebody, duty of care IS owed to the rescuer  If the potential danger was reasonably foreseeable so was the potential need for a rescue and thus, the person who caused the danger must pay compensation to both the victim and the rescuer SPECIAL SITUATIONS Occupier’s Liability  Occupier of land owes duty of care to those who come on his land  Standard of care varies with visitors’ status  An invitee or licensee (people who are there with permission) deserves a higher standard of care than a trespasser (the only duty owed to trespasser is to not wilfully or recklessly cause him harm) Alcohol Liability  Courts hold commercial dispenser of alcoholic beverages (e.g., restaurants) at least partially responsible when a patron becomes intoxicated and is injured or injures others  Businesses supplying liquor at company functions have also been found liable for drinking- related injuries  S.C.C has so far refused to extend responsibility to social hosts holding private parties where a guest becomes drunk and is subsequently involved in an accident (e.g., Zoe Childs case)  However, there is still a possibility that this law will be changed if it involves a more compelling case where the hosts actually supplied the liquor to someone they knew was driving and knew was drunk Legislation  Modifications to the law imposed by statues  These statutes do not create new categories of tort unless they specifically say so;  Humans rights acts and privacy legislation may impose new obligations on people, but violations of these obligations do not amount to a tort unless the act says they do  Some jurisdictions have changed tort law with respect to automobile collisions  “No Fault” programs which by people are treated the same and compensated for their injuries whether or not they were at fault  Alberta has recently passed legislation creating a duty of care on a mother towards their unborn child  Thus, if a pregnant woman were in a car crash that caused injury to her unborn baby, since she owed a duty of care to the child, liability can be established and her insurance would cover any injuries incurred by the unborn child 3 Negligent Misstatement  Negligent words may create liability Strict Liability  Liability even when conduct was reasonable disclosed Product Liability  When suing manufacturers for some injury or loss caused by their product you still must prove that there was a duty to be careful and also that there was a failure to live up to that duty  If a product is designed and sold to a consumer without any intervening inspection or modification, a duty of care DOES exist  Breach of duty of care can be implied from circumstantial evidence, e.g., in the Donoghue v. Stevenson case the decomposing snail in the bottle would have been enough evidence to draw an inference of negligence on the part of the defendant  Manufacturers must also warn and act reasonably to make dangerous products safer in order to escape liability  Liability for damage or injury caused by products may also be based on contract  If this is the case, fault does not need to be determined as liability will follow simply by showing that there was a breach of contract LIABILITY OF PROFESSIONALS AND OTHER EXPERTS Contract  In the past, liability of professionals was based on contract with their clients  When professionals provide substandard service, they are liable for the losses resulting from the breach of the contract  Liability is also limited to the individual party that signed the contract and no one else; however, the court’s willingness to expand tort liability beyond these immediate parties has ha
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