Chapter 5 - Negligence, Professional Liability, and Insurance.docx

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

Chapter 5Negligence Professional Liability and Insurance Negligence involves inadvertent or unintentionally careless conduct causing injury or damage to another person or his propertyy 4 elements must be established by plaintiff to succeed in a negligence action A A duty of care is owed to the plaintiff o Test used Foreseeable plaintiff test based on proximity and policy considerationsB Breach of that duty breach of the standard of care o Test used Reasonable person testwhat would a reasonably prudent person in possession of all the facts of the case have done in this situationstandard of care has special implications for professionals Inexperience not an excuse Courts however recognize that children cannot be expected to act at same level of responsibility as adultC Causation o Test used Physicalbut for testLegalremoteness test driver damaging power pole causing abusiness economic loss is too remote Unforeseeable D Damage o Test used refer to precedentshas this type been recognized by courts as compensabledamage or injury must be present and it must be a direct result of the careless conductthin skull rule vs crumbling skull ruleFailure to establish any one of these four elements will lead to dismissal of the plaintiffs action Defences Contributory Negligencehistorically defendant can show that plaintiff was also carelessAfter last clear chance doctrine held person who had last opportunity to avoid accidentand failed to do so completely responsible Today usually both parties are heldresponsible Voluntary Assumption of Riskto escape liability defendant must show that plaintiff not onlyassumed the physical risk but also the legal risk Very difficult to do1
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