Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
28 Cards in this Set
- Front
- Back
|
What is negligence? |
• Negligence consists of doing, or omitting to do something that a reasonable person would do or not do under the circumstances • Failing to exercise a duty of care toward others where a reasonable person could foresee that a neighbour would be injured |
|
|
What are the Elements of Proof? |
1.) Duty of Care 2.) Standard of Care 3.) Proximate Cause - Causation 4.) Foreseeable Injury |
|
|
What is the Duty of Care? |
Duty of care implies that the defendant is in control of his/her actions or that the defendant has assumed control of an article that, from his/her actions or failure to act, could cause injury to someone else • plaintiff must show that the defendant owed the plaintiff a duty of care • the defendant must fail to meet that duty of care in order to be found negligent by the court. |
|
|
What is the Reasonable Person Test? |
A reasonable person is thoughtful, thinks before acting, carefully considers the consequences of his/her actions, and avoid actions that might harm others
•The concept of the reasonable person is an important principle in many negligence cases. • Nonetheless, The law does not expect a person to be perfect - only reasonable.what |
|
|
What is the Standard of Care? |
• The plaintiff must establish the a appropriate standard of care - the amount or level of care appropriate in the circumstances. • If the defendant fell below the required standard of care, the defendant may be negligent • If the defendant met or exceeded the required standard of care, the defendant is not negligent • The Standard of care may very from cases to case - it is based on the persons involved and the fact of each individual cases, eg medical, education, professionals, children |
|
|
What is Proximate Cause/ Causation? |
There must be a relationship or connection between the defendants actions and the plaintiffs injury before the court will hold the defendant liable. • Did the defendants act (or omission ( a failure to act)) cause the plaintiffs injury • Is the defendants act close enough to the injury or loss - the “proximate cause” of the plaintiff injury? • Or is the defendants act “too remote” to hold the defendant liable. |
|
|
What is Foreseeable Injury/ Foreseeability? |
People are obliged to exercise care toward those whom they can reasonably foresee might be injured by their acts or omissions • the plaintiff must prove that the defendant could have foreseen damage or injury • this does not imply that a defendant knew exactly what would happen or who would be the victim, but only that the defendant could have known that the victim belonged to a class of people whose presence was reasonably foreseeable • If the Injury was not foreseeable the defendant will not be liable If the injury is foreseeable the defendant may be liable. |
|
|
What is Donoghue vs. Stevenson, 1932, and why is it so important? |
• Donoghue became ill after finding the remains of a decomposed snail in the bottom of a bottle of ginger beer she had drank. • Donoghue contended that there was negligence on the part of the manufacture (Stevenson) for not having a system of proper inspection. •Stevenson argued that Donoghue had no cause of action against him because there was no contract between them • the trial judge dismissed the case but Donoghue appealed and the House of Lords reversed the decision ruling that she had roper cause of action and ordered the case tried. • the parties settled out of court • the significance of this case lay in the decision that the plaintiff had a proper case to be tried. • Lord Atkin’s “neighbour principle “ (you must not injure your neighbour) and “reasonable person” ( a reasonable person thinks before acting, carefully considering the consequences of their actions) altered negligence law |
|
|
What is the careful parent rule? |
A teacher or caregiver must take care of a child as carefully as a parent would take care of his/her child |
|
|
What is the But-For-Test? |
Some courts sometimes apply this test, meaning that the injury would not have happened “but for” the defendants negligence |
|
|
What is novus actus interveniens (an intervening act)? |
It is a valid defence to show that another act, separate and distinct entered the chain at some stage and created a new situation - this is an intervening act |
|
|
What is Malfeasance? |
The defendant performed an activity, but carelessly • this is negligence |
|
|
What is Nonfeasance? |
The defendant failed to act - an omission- and that was careless activity: failure to act when action was required • this is negligence |
|
|
What is Contributory negligence? |
The plaintiffs own negligence caused plaintiffs injury in whole or in part - or is a third party fully or partially responsible |
|
|
What is Last Opportunity Rule? |
This holds that blame rests chiefly upon the person who had the last chance to avoid the accident. |
|
|
What is Circumstantial Evidence? |
• Evidence which, by itself, does not prove a fact in issue • party asks court to draw an inference of the existence of a fact through proof of surrounding circumstances (proof of other facts) that will allow the court to logically conclude that another fact exists |
|
|
What are some defences to negligence? |
1.) The plaintiff fails to prove one of the necessary elements for negligence on balance of probabilities 2.) Intervening Act - act of a person interrupts causation link 3.) Contributory negligence - plaintiffs own negligence caused plaintiffs injury in whole or in part - or is a third party fully or partially responsible? • Voluntary assumption of risk • Disclaimer Clause |
|
|
What is Voluntary assumption of risk? |
• A person who voluntarily accepts a risk cannot complain of injury • three things must be proven successfully to argue this: 1.) the risk was know to the plaintiff 2.) the plaintiff has personally assumed the risk 3.) the plaintiff has clearly absolved the defendant of liability |
|
|
What is Liability to Rescuers? |
• A forced rescuer can sue the defendant even though the rescuer acted voluntarily • a forced rescuer is a person who has no choice but to act, even though the compulsion was a moral one not a legal one |
|
|
What is Strict Liability? |
• A special concept or principle in negligence law - if you crate a dangerous situation, you may be held liable without personal negligence. • eg. If a person chooses to keep a wild animal and the animal escapes the house and attacks someone, the person who chose to keep the wild animal is liable even though it may not have been that persons fault that the animal escaped. |
|
|
What are the elements of Strict Liability? |
1.) the substance causing harm must be inherently (by its basic nature) mischievous or dangerous 2.) the defendant must have brought it onto the location - it was not there naturally 3.) the defendant failed to control it, and it escaped and caused damage to the plaintiff or the plaintiff’s property |
|
|
What is the liability of a child? |
In Ontario children are liable for their torts once they reach the age of reason, which is 18 in Ontario • a child must conform to the standard of intelligence of other children the same age • a child performing an adult act must meet the standard of care of an adult |
|
|
What is parental liability? |
• parents are not automatically liable for their children’s torts • they may become liable only if they in some way brought about a Tort or failed to control their children when they should have been exercising parental control • adults must not put dangerous things in the possession of children • parents must educate their children on right and wrong • parents must supervise children properly |
|
|
In regards to Automobile Negligence, what is Owner’s Liability? |
• imposes by legislation • if an owner allows another to use a vehicle with the owner’s consent, the owner is liable even if not in the vehicle |
|
|
In regards to Automobile Negligence, what is the liability to the passenger? |
• a person in a car can sue the driver for negligence • a person who accepts arise with a driver who is drunk cannot sue the driver • a driver must ensure the young passengers wear their seatbelt |
|
|
What is Automobile Contributory Negligence? |
• a person guilty of Contributory negligence may receive reduced compensation depending upon the extent to which the person contributed to their own injuries. • eg. If there’s a car accident A hits B, B dies but B was not wearing his seatbelt, B would have contributed to his death by not wearing his seatbelt • It must be proved though that the seatbelt would have made a difference • failure to wear a seatbelt or removal of a safety device is Contributory negligence |
|
|
What is Inevitable Accident and what are the three main causes? |
• the defendant can escape liability for an accident if the defendant can show that the accident was inevitable • the three most common causes of inevitable accident are: 1.) Mechanical failure - means the driver loses control of the vehicle because of a mechanical malfunction over which the driver has no control (it must be something that the driver was not aware of before) 2.) Driver failure - means that an accident occurs because of a physical problem that suddenly seized the driver like a heart attack (with no history of a problem) 3.) Weather conditions - road conditions can cause an inevitable accident - drivers must take extra care while driving |
|
|
What is Manufacturers Negligence? |
• design of items - negligent design • manufacture - something wrong with process, failure to perform quality assurance • failing to give proper instructions for use • failure to warn of potential dangers of a product known to manufacturer |
