REMEDIAL QUIZ Flashcards
What are the four components of negligence in general?
- Duty of care
- Causation
- Remoteness
- Défenses
What test is used to determine whether D is in breach of the duty of care?
The reasonable person test. D is required to take as much care as would be taken by a reasonable person. An ordinary person of normal intelligence who uses ordinary prudence. It’s an objective and impersonal test.
(Ward v Tesco Stores) - superstore breached conduct, yogurt left for 3 hours
(Tedstone v Bourne Leisure) - hotel jacuzzi no breach of duty, water left for five minutes
(Robertson v Adigbite) - community services not in breach of duty of care, it was not reasonably foreseeable that this person that was mentally unwell would injure anyone.
What test is used for causation?
The “but for” test if it can be proven, on the balance of probabilities, that P’s injury would not have occurred but for D’s negligence, the causal connection is established.
—> Lord Denning (Cork v Kirby Maclean Ltd) “if you can say that the damage would not have happened but for a particular fault, then that fault is in fact a cause of the damage.
What act is in place when a second incidence occurs? (Causation)
Novus Actus Interveniens (a new intervening act)
The question for the court is: whether the second act, with its injuries results, should be considered to be within the risk set into motion by D, and thus remain D’s responsibility or whether the act should be seen as a novus actus interviens severing the causal connection
(Smith v Littlewoods Organization Ltd) - it was the vandals act, not D’s omission, caused the damage.
What does the “remoteness” question?
Whether the actual harm suffered by P was too unrelated to the wrongful conduct to hold D fairly liable (whether the harm actually suffered was reasonable foreseeable or not)
(Mustapha v Culligan of Canada Ltd.) - dead fly to depressive disorder. No problem exists for duty of care, breach of duty and causation. The proble is that his extreme reaction to a relatively insignificant event was not a reasonable foreseeable consequence of the fly incident. Only if mental injury would occur in a person of ordinary mental fortitude
What rule applies for remoteness when D must take the victim as he finds him?
The thin skull rule
- There is a difference between the “type” of injury and the “extent” of injury
- As long as the type of injury is reasonable foreseeable, D is liable to the full extent of P’s injury even where a prior vunerability or inherent weakness makes harm more serious.
(Athey v Leonati) - thin skull, liable even if injuries are unexpectedly severe in accordance to a pre-existing condition
(Smith v Leech Brain Co Ltd) - burnt lip, cancer “one need not foresee the extent of injury, but only the type of injury”
What type of negligence relates to P contributing or partially causing an injury?
Contributory Negligence refers to unreasonable conduct by P that contributed, or partially caused, his injury. The damage will be reduced to such extent with regard to the P’s share in responsibility. The court will have to approportion balance accordingly. Ex. Not wearing seatbelt when hit, crossing road when pedestrian light is red, take a ride in vehicle knowing driver is drunk.
(Kralik v Mount Seymour Resorts) - ski resort, brushing off ice from lift - contributory by clearing ice.
What type of negligence relates to P being fully and voluntarily responsible for injury?
Volenti defence (Voluntary Assumption of Risk). A person who knowingly and voluntarily risks danger cannot recover for any injury complete defense. The typical situation is in a sporting event, obvious/normal/neccessary risks of the sport is not negligence
(Ellision v Rogers) - golfer hit, risk assumed/normal
(Agar v Canning) - hockey, revenge strike “beyond limit”
Injuries inflicted in circumstances which show a definite resolve to to cause serious injury do not fall within the scope of the implied consent.
