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Chapter 5 negligence

Identify the four elements of a negligence claim

Negligence involves inadvertent or unintentionally careless
conduct causing injury or damage to another person or his property
Four required elements( failure to establish any one of these four
will lead to dismissal of the plaintiffs action):
A: A duty of care is owed to the plaintiff
B: Breach of that duty; breach of the standard of care
C: Causation
D: Damage
A duty to exercise care must exist
The court must determine whether the defendant owed a duty of
care to the plaintiff.
The court uses the reasonable foreseeability test, also
called foreseeable plaintiff test.
Two stage test for determining the existence of a duty of care:
Proximity between the parties, if the person being sued
realized his actions posed a risk of danger to the other.
- Injury to the plaintiff was reasonably foreseeable
- There is a relationship between them
The second set of questions probes deeper. Was there any
reason that the duty should not be imposed? Should the scope
of the duty be reduced?...
The court can apply the second half of the anns case test
negating or modifying that duty on the basis of policy
Policy considerations into account before a duty of care is
recognized in new situation, weaken the predictability of case law
Misfeasance and nonfeasance
Misfeasance or wrongful conduct is involved; the courts are ready to impose liability
on the wrongdoer.
But the court are very reluctant to provide a remedy in a case of nonfeasance.
(a person fail to do something, failure to act. Doctor pass an accident and do
nothing. )
Once starting help, person must take reasonable care.
Describe breach of the standard of care, identifying
the test used to determine if a breach has occurred
Breach of the standard of care
in a negligence action, once the existence of a duty is established,
the second issue is whether the defendant demonstrated sufficient
The reasonable person test is used by the court in many areas of
law to establish standard of socially acceptable behavior.

Reasonable care, not perfection, required

A reasonable person is expected to be prudent or particularly
careful, demonstrating a level of behavior considerably better than
if the conduct of the defendant is found to have fallen below this
standard, he is negligent and liable for any injury or loss thus
Reasonable conduct vary with the circumstances
Expenses or costs will also be taken into consideration in
determining the required standard of care.
Reasonable behavior will also vary with the expertise of the
person being sued. (doctor vs non medical person)
Liability varies with age( small children vs teenage playing
matches and causing fire)
Liability may be established by circumstantial evidence (falling
of a piano from 4 th level to the street)
= Res ipsa loquitur= the thing speaks for itself
prima facie= on the face of it
C and D: Causation and Damages
Negligence requires that some sort of loss to person or property be
Customer slips and falls but no injury, no need to sue. Only when
then have a tangible, physical injury, which provide grounds for and
Without damages, negligence cannot be established.
The courts are willing to provide a remedy even in case of
pure economic loss or where the negligence has caused a
recognized mental disorder, such as depression

Explain how both physical and legal causation are

Physical causation, BUT FOR test
For negligence to apply, not only must there be damage, but also
that damage must be a direct result of the careless conduct.
The but for test is the general rest for causation, where this test is
unworkable, as where multiple causes bring about a single harm the
court will look for material causation.
Remoteness test- legal causation
Problem of remoteness: the connection between the conduct
complained of and the actual damage suffered is too remote.
Liability is avoided if the injury is too remote, or too unforeseeable.

With duty of care, the test is used to determine whether danger to

the plaintiff should have been anticipated, whereas with remoteness
it is the type of injury itself that must have been foreseen.
Identify the types of damage or loss that the courts have
recognized as compensable
Thin skull rule, if a person experiences greater injury from our
conduct than would be expected because of a unique physical
condition, there is nonetheless a responsibility to compensate for all
consequences of the injury.
Crumbling skull rule, if the concert pianist had a deteriorating
condition in his hand such as arthritis, and in a short time would
have lost use of it anyway, we are not responsible for the lost career
as those damages would have taken place in any case ( pre-existing
frailties )
Distinguish the defences applicable to the tort
of negligence
The courts developed the last clear chance doctrine, which
held the person who had the last opportunity to avoid the
accident, and failed to do so, completely reasonable.
The Negligence Act in Ontario, abandons the all or nothing
approach and permits the court to apportion responsibility
between the two parties.
All or nothing: if the defendant can show that the plaintiff was
also careless, contributing to his own loss.
Voluntary assumption of risk
Volenti non fit injuria: a plaintiff voluntarily assumed the risk of
injury. Getting into a car with a drunk driver.
To escape liability the defendant must show that the plaintiff not
only assumed the physical risk but also the legal risk.
But assumption of legal risk must be clear.
Contributory negligence, which permits the courts to
apportion the loss between the parties.
The principle of volenti does not apply to work-related
accidents, even if the work being performed is inherently
dangerous. The employer cannot avoid liability arguing that
the employee voluntarily participated in the work.
If the rescuer is injured, the author of the danger cannot
escape liability by claiming the rescuer voluntarily assumed
the risk.(mum jumps in front of a train to save her son, and is

The courts should refuse to entertain a lawsuit brought by a
party who engaged in unlawful activity.
Ex turpi causa, non oritur actio = an action does not arise
from a base cause
ex turpi causa applied to prevent injustice
Special Situations
Human 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.
No fault Program: by which people are treated the same and
compensated for their injuries whether they were at fault or not.
Non-pecuniary damages (damages based on non-monetary
factors): passed controversial legislation setting a threshold for
physical injury that must be met before, as pain and suffering can
be awarded.
Strict liability
Tort law generally requires the demonstration of fault, but
there are some situations where liability will be imposed even
where there is no fault on the part of the defendant who has
acted completely reasonable.
Strict liability distinguished from those situations where fault
is required.
If a person brings something inherently dangerous, such as
stored water or explosives, onto his property and it escapes,
the occupier is liable for any damage.
Strict liability will be imposed if the unusual use of the
Vicarious liability , employer is being held responsible for the
wrongful acts of an employee even though the employer has
done nothing wrong
Occupiers liability
In common law, people who occupy property have a special
obligation to people who are injured on their property.
This obligation rests on the occupier, not the owner.
Invitee: a person coming on a property for a business purpose.
Licensee: a person coming with permission, but for a nonbusiness purpose.
Trespasser: a person there without permission
For trespasser, most jurisdictions retain the common law minimum
obligation not to willfully or recklessly cause them injury.

At common law, an innkeeper - being in a unique position- was

required to protect his guests from the wrongful acts of others, even
when the innkeeper or servant was not at fault
Clarify when product liability may be imposed
Manufactured products are often dangerous, either because of some
inherent defect or because of their nature, such as in the case of
chemicals, tools, or explosives.
This is a strict liability approach requiring no demonstration of fault
on the part of the manufacturer.
In Canada, it is still necessary to establish fault when suing
manufacturers for some injury or loss caused by their product
Not only duty to be careful, but also to prove that there was a failure
to live up to that duty.
Lack of intervening inspection confirms duty rests with
The purchaser buys the product for a third party; the courts may
regard the purchaser as the agent for the ultimate consumer
The Donoghue case suggested that a duty is owed by the
manufacturer to the consumer if a product was designed in such a
way as to get into the hands of the consumer without intervening
inspection or modification
The manufacturer was able to avoid liability to the end user, when
the intermediate inspection is contemplated and has occurred
Shared liability
The introduction of contributory negligence legislation
Both the negligent manufacturer and the negligent inspector may
beheld jointly liable to the injured consumer.
Similarly, if it is the plaintiff who has failed to adequately inspect a
product before its use, or uses a product despite an apparent defect,
he may be held partly responsible
Shared liability preferred
Liability may also be imposed for negligent designs or negligent
Difficult problem in product liability cases is to show that someone
was careless in the manufacturing process.
Circumstantial evidence method replaces the res ipsa loquitur
approach used in the past and also seems more appropriate for
product liability case.
Liability for damage or injury caused by products may also
be based on contract.

Anne case prove which law? According to anne case you can get
what .

Case study
1, Describe the plaintiff and defendant
2. Brief overview: what happened?
Claims: damages for personal injuries
Main concern of the trail was on the issue of liability
3. Relate to the lecture. Negligence
4. Examples
5. Issues:
Duty of care -- did they breach the duty of care? What is the
defendants situation within the case?
6. Plaintiffs action. Did the plaintiff contribute to the liability?
7. The judges reasoning
Compare to the precedent cases
8. Do you agree?