Will a court find that professionals breached the standard of care if they
complied with an approved practice? Explain your answer.
No, usually a court will not find a professional liable if they have complied with an
approved practice. As the supreme court explains "[C]ourts do not ordinarily have
the expertise to tell professionals that they are not behaving appropriately in their
field. . . . As a general rule, where a procedure involves difficult or uncertain
questions of medical treatment or complex, scientific or highly technical matters that
are beyond the ordinary experience and understanding of a judge or jury, it will not
be open to find a standard medical practice negligent. On the other hand, as an
exception to the general rule, if a standard practice fails to adopt obvious and
reasonable precautions which are readily apparent to the ordinary finder of fact, then
it is no excuse for a practitioner to claim that he or she was merely conforming to
such a negligent common practice." Neuzen v Korn (1995) 127 DLR (4th) 577 (SCC).
"Causation is determined on a balance of probabilities in an all-or-nothing
manner." What does that statement mean?
It means that if courts find that there is a 51% probability that the defendant did
cause the actions that harmed the plaintiff then they will award damages for all that
loss, and vice versa. If the defendant is only 49% at fault, then no damages will be
In the context of product liability, identify three ways in which the
defendant's carelessness may create an intolerable risk of injury for
consumers. Are the courts equally willing to impose liability on all three
grounds? Explain your answer.
If the manufacturer careless manufactured a product that injures a plaintiff, if the
design of the product inherently creates a danger to the consumer and it affects
everyone of the products, and if the manufacturer did not warn the consumer about
the inherent dangers of using the product.
Usually, courts are willing to impose liability for all three, however, design is usually
a tougher sell. As a judge will weigh the benefits vs the disadvantages, and
probability of severity vs. the difficulty and expense of changing the design.
Is the but-for test always applied to resolve the issue of causation?
Illustrate your answer with an example.
Yes, it is. It states that if not but for **** the plaintiff was harmed or suffered a loss.
An example would be:
Imagine a pedestrian walking down the street, a driver runs a red light and hits
In this case we can apply the test by asking "But for the driver running the red light,
would the pedestrian have been hit?" Clearly, the answer is no and therefore, the