CH 6: Negligence

- Flexible balancing of social values

- Compensation for those who suffer injuries
- Encouragement of socially useful activities: might be in society’s best interest to protect some
activities from liab., ex: difficult to sue doctors b/c judges don’t want to discourage them from
practising in risky areas
- Flexibility required at each stage of analysis

Professional negligence
- Not a separate tort, it refers to negligence that is committed by professional person, ex: banker,
accountant

Four Stages of Negligence Analysis

Plaintiff must prove there was a …

1. Duty of care
Should the defendant have been careful toward the plaintiff?

2. Breach of standard of care

How careful should the defendant have been?

3. Causation of harm
Was the damage actually caused by defendant?

Defendant may prove:

4. Defences
Was the plaintiff negligent as well?
Did the plaintiff accept the risk?
Did the plaintiff act illegally?

FIRST ELEMENT: DUTY OF CARE

Plaintiff must prove there was a duty of car (def had to use care to avoid harming the plaintiff)
- duty of care: liability possible
- no duty of care: liability not possible

Test for determining duty of care

1. Judge will ask if duty of care question has been answered by a previous case, we already that
bottler owes duty of care to a consumer & a mother does NOT owe duty of care to unborn child

2. If duty of care question not previously answered, judge will ask 3 questions about
- reasonable foreseeability
- proximity
- policy
A. Reasonable Foreseeability

- Objective test
- would reasonable person in def’s position have foreseen possibility that plaintiff would be
injured
- NOT asking if the def personally knew that its activities might harm plaintiff

- Reasonably foreseeable refers to a possibility that is not far-fetched (far-fetched: improbable,

difficult to believe), does not mean probably or likely

- Purpose of this requirement is fairness

- Unfair to hold defendant liable for every loss
- Impossible to prevent unforeseeable event
- Unfair to deny liability for subjective deficiencies (def was stupid, not paying attention)
- Plaintiff entitled to expect reasonable conduct

B. Proximity

- There must be a close and direct connection between both parties

Proximity can arise in various ways:

- Physical (eg hit by swung baseball bat)
- Social (eg bond between caregiver and child)
- Commercial (eg parties to a business transaction)
- Tavern may be responsible for drunk cust who causes traffic accident, but host of house
party NOT liable if drunk cust did same thing
- Reliance (eg reasonable use of financial advice)
- Direct causal relationship betw def’s carelessness & plaintiff’s injury

Negligent Statements

- Balance betw the compensation for those hurt by negligent statements and the need to protect
businesses from disastrous consequences of being liable

Liability more likely if (ie. duty of care more likely if)…

1. Defendant claimed or possessed special knowledge

- It is reasonable to rely on info provided by expert

2. Statement communicated on serious occasion

- It is reasonable to rely on info provided during biz meeting than at an informal party

3. Def’s Statement made in response to an inquiry

- Def who is providing info should realize it may be relied upon

4. Defendant received financial benefit for providing statement

- People usually pay for info they intend to rely on

5. Statement of fact (or opinion based on fact) rather than pure opinion
- Reasonable person would rely on info of professional stock expert but not on a prediction of the
outcome of a horse race
- Liability less likely if (ie. duty of care less likely if) def’s statement accompanied by disclaimer

Second stage of analysis

- There is a duty of care only if

1. Def knew that plaintiff (wither individually or as member of group) might rely on statement

2. Plaintiff relied on that statement for its intended purpose (ie you meant to rely on statement AND
you have to use statement for intended purpose)

C. Policy

- Court will look at the effect a duty of care will have on legal system & society in general
- Proximity: focus on parties’ relationship
- Policy: focus on legal, social, political concerns

- Court will ask if recognition of duty of care will:

1. Encourage large # of people to swap courts with lawsuits
2. Interfere with political decisions
3. Hurt a valuable type of relationship

SECOND ELEMENT: BREACH OF STANDARD OF CARE

- Plaintiff must prove def breached the std of care

- Std of care: determines how defendant with duty must act

- Std of care is breached when def acts less carefully
- Liability possible only if standard of care breached

Reasonable person test

- Std of care is determined using reasonable person test, “how would a reasonable person act in
this situation?”
- It is an objective test (no allowances for def’s subjective/personal characteristics)
- Def cannot hide behind own deficiencies (ex: def cannot say he did his best or that he suffered
from mental disability)
- Standard applied at time of alleged breach, ie std of care is based on info that was reasonable
avail to the def at time of breach

Factors

- Judge will lower std of care for children, enough that child acted as reasonable child with similar
age, intelligence, experience
- Reasonable person takes precautions against reasonably foreseeable risks, note: something can
be reasonably foreseeable even if unlikely to occur
- Reasonable person does not need to take precaution against unforeseeable risks
- Greater care required if chance of loss is high & severity is high
- Reas. person should pay for affordable precautions
- Less care if socially valuable activity, ex: appropriate for police driver to go past red light
- Sudden peril doctrine: less care if emergency, reas. person may make mistakes during
emergencies

Standard of Care: Professional Negligence

Court looks at 4 things:

1. A professional must act as reasonable professional would act in similar situation

- No allowance for inexperience
- No allowance if def claimed to have special training
- No allowance for exaggerated credentials
- Enhanced standard for specialist or expert, specialists must perform at higher level

2. Std of care is based on info that was reasonable avail to the def at time of breach
- ex: someone trying to sue hospital for not screening blood for HIV
- if that person got HIV before it was discovered, then no std of care b/c at that time, hospitals
didn’t know how to screen for HIV

3. Professional that follows an approved practice generally cannot be liable

- If approved practice itself is careless, judge will only reach this conclusion if relevant activity can
be judged by common sense

4. Std of care not breached (no liab) if def’s mistake was an error of judgment (a mistake that a
reasonable professional might make)