Chapter 5

Question 1

What is negligence?

Answer 1

Unintentional conduct that causes injury or damage to another person or property

Question 2

What four elements must all be established to succeed in a negligent action?

Answer 2

A duty of care, Breach of duty, Causation, and Damage

Question 3

What needs to be established in a duty of care?

Answer 3

That the proximity of the parties created an obligation to exercise caution or care

Question 4

What needs to be established in a Breach of Duty?

Answer 4

That the defendant was not careful enough

Question 5

What needs to be established in Causation?

Answer 5

(1) that the defendant directly or physically caused the injury (2) that the injury was reasonably foreseeable

Question 6

What needs to be established for Damage?

Answer 6

That the plaintiff suffered injury or loss

Question 7

Explain what duty of care means

Answer 7

A duty to be cautious to anyone we can reasonably anticipate might be harmed by our conduct

Question 8

Explain what the reasonable forseeablility test is

Answer 8

If it would be apparent to a reasonable person that the conduct was likely to cause injury, a duty is owed.

Question 9

Describe what the Anns Case is

Answer 9

Two stage test for determining the existence duty of care—used in new situations or classes of cases where duty of care has not already been established
(1) foreseeable injury and proximity (2) provides for exemptions or modifications to the primary test for policy reasons

Question 10

What is misfeasance?

Answer 10

An act that causes harm to another

Question 11

What is nonfeasance?

Answer 11

Failure to prevent injury—like watching someone drown

Question 12

Once the existence of a duty is established what’s the second issue?

Answer 12

Whether the defendant demonstrated sufficient care—reasonable care is required not perfection

Question 13

What does breach of standard of care vary with?

Answer 13

(1) expertise of person being sued (2) standard of care doesn’t diminish in the case of an elderly person (3) expectations for children are lower

Question 14

Explain the “but for test”

Answer 14

“But for” the conduct of the plaintiff, no injury would have resulted

Question 15

Explain the remoteness test

Answer 15

Whether the specific type of injury suffered was reasonably foreseeable—remoteness may arise twice in a negligence action: duty of care and causation

Question 16

Explain the thin skull rule

Answer 16

We take our victims as we find them—one is liable for the full extent of injuries suffered

Question 17

List the three defences to a negligence claim

Answer 17

(1) voluntary assumption of risk (2) contributory negligence (3) Illegality

Question 18

Explain voluntary assumption of risk (volenti non fit injuria) as a defence to a negligent claim

Answer 18

(1) the law will not assist those who volunteer to bear risk
(2) the defendant must show that the plaintiff assumed the physical risk and legal risk (3) a successful claim of volenti is rare today

Question 19

Explain contributory negligence as a defence to a negligence claim

Answer 19

(1) duty is owed to the rescuers (2) provincial statutes now allow court to apportion responsibility among plaintiff and defendants

Question 20

Explain Illegality as a defence to a negligence claim

Answer 20

(1) courts will not hear a lawsuit brought by a party engaged in unlawful activity (2) illegal conduct must cause loss to the plaintiff before the defence will operate

Question 21

List and explain what a plaintiff must establish to succeed in a negligence action

Answer 21

(1) It must be demonstrated through a reasonable foreseeability test that there was a duty to be careful (2) there was a failure to live up to that duty (3) it must be demonstrated that damages or injuries are present and that those injuries were caused by the careless conduct complained of. (4) it must also be clear that the injury was not too remote from the conduct complained of.

Question 22

When a tort is committed intentionally, what remedies are available that may not be available when the conduct is unintentional?

Answer 22

The remedy that is usually available when serious intentional wrongdoer is involved is punitive damages. This remedy may not be available for negligence.

Question 23

Explain how the adoption of the Anns case test by the Supreme Court of Canada modified the approach to duty of care established in Donoghue v. Stevenson

Answer 23

The Anns case added a second part to the test. The first part is a re-statement of the test from Donoghue v. Stevenson. The second part asks if there is a public policy reason the duty should not be imposed, or should it be reduced or restricted in some way?

Question 24

How does the “but for” test help to satisfy the requirements of causation?

Answer 24

It is necessary to establish that the action complained of actually caused the injury. The ‘but for’ test is simply a way of applying that principle.

Question 25

Explain the defence of volenti non fit injuria is difficult to establish

Answer 25

To be successful the defendant must show the plaintiff assumed not only the physical risk, but also the legal risk of undertaking the action which is very rarely done.

Question 26

Distinguish between misfeasance and nonfeasance; and explain the significance of the difference in tort law?

Answer 26

Misfeasance involves wrongful conduct; nonfeasance is the failure to act. Generally the law, will not impose an obligation to do something unless some duty can be shown because of the unique relationship between the two parties. Misfeasance is wrongful conduct that is usually controlled by the law of negligence.

Question 27

Describe the test used in determining the appropriate standard of care demanded of the defendant in a negligence action.

Answer 27

The reasonable person test is used to determine what the appropriate standard of care is for negligence. What should the reasonably prudent person, in possession of all the facts do? The courts also take into account the costs of the taking action and the risks.

Question 28

How has an occupiers liability to persons using the property changed in recent years?

Answer 28

The most significant change is that occupiers liability has been changed in many provinces by legislation. In common law in the past it was thought that the standard of care demanded from an occupier varied with the status of the person on the property. An invitee was owed a different duty than a license and very little duty was owed to a trespasser.

Question 29

Distinguish between the thin skull rule and the crumbling skull rule

Answer 29

(1) With the thin skull rule, as long as the defendant could have foreseen the possibility of injury, the fact that the plaintiff was more susceptible to injury than the average person is not significant. The defendant must “take the victim as he lies” (2) in a crumbling skull situation, the plaintiff had a pre-existing condition that would have affected them, even if the defendant had never caused anything to happen to the plaintiff. The defendant will therefore be responsible for part of the plaintiffs injuries, but not all.

Question 30

Explain how the effect of contributory has been modified in recent years

Answer 30

Historically at common law where there was contributory negligence on the part of the plaintiff, victims were entitled to no compensation from the tortfeasor because of their own negligent conduct. The significant change has been the legislation now permitting the courts to apportion the loss among parties.

Question 31

Explain the obligations that are imposed on the producer of a product and to whom that obligation is owed

Answer 31

The producer must exercise reasonable care in the manufacture of a product. The duty is owed to the ultimate consumer as long there has been no intermediate inspection or modification.

Question 32

Why is the case of Haig v. Bamford important in the development of tort law?

Answer 32

It was thought prior to this decision that a careless statement that resulted in economic loss was not actionable unless some special fiduciary duty could be demonstrated.