Chapter 6 Review Questions LGST 369

Chapter 6 Review Questions: Although tort law is generally concerned with striking a balance between the desire to provide compensation and the desire to protect socially useful activities from liability, that issue is particularly important in the context of the tort of negligence. Why? It is important because of the pervasive nature of negligence tort law. It tries to balance a desire to provide compensation to injured parties while also protecting the activities that benefit the social utility of society. How will a court decide whether or not a duty of care will exist in a particular case? A court will decide whether duty of care will exist first and foremost by precedent, If this exists then they will turn to that precedent to decide. If it is a new duty, then reasonable foreseeability, proximity, and policy come into play. Reasonable foreseeability asks whether it is reasonable for the plaintiff to be injured by the carelessness of the defendant and is objective. Proximity asks if the parties shared a relationship of sufficient proximity. This can include social relationships, commercial relationships, direct causal relationships, and any reliance or representation relationships. Policy asks if the legal system or society will be affected by the outcome of the ruling. Factors that determine policy are things such as, will it open the floodgates for more litigation of the same nature, does it interfere with a political decision, would the duty hurt some type of valuable relationship, like that between a mother and child. Does the duty of care analysis differ if the plaintiff complains about psychiatric injuries rather than physical injuries? Explain your answer. Yes, the court will have to analysis the case more intensely than that of a physical wrong. In regards to reasonable foreseeability and proximity, a case involving psychiatric injuries will involve factors such as the plaintiff's vulnerability, the nature of the relation ship involved, how remote the proximity of the relationship is to defendant, if the defendant was directly involved, These cases usually require expert evidence as they are much more complex than a physical injury to determine severity. "The tort of negligence normally is not available if an employee wants to complain that they suffered mental distress as a result of an employer's carelessness." Is that statement true? Explain your answer. At which stage of the negligence analysis would a court resolve that issue? Yes, this is true. If this was the case the courts would have held that it would not allow business to carry on in an efficient manner. The stage of policy is when this

would occur. Explain the concept of reasonable foreseeability. How is that concept related to the issue of risk management? At which stage(s) of the negligence analysis does the concept arise? Reasonable foreseeability looks to establish if a fictional reasonable character in the defendant's position would have recognized the possibility of the plaintiff suffering a loss or injury. When Identifying risks one can view this what a reasonable person would do to try and prevent a negligent situation from occurring. It shows up first in establishing duty of care, which is the first stage of negligence, it is relevant when determining a breach of standard of care, and finally in again it shows up in establishing causation. "The standard of care requires everyone to act like a reasonable adult would act. That rule may seem harsh when it is applied to a child. The rule is acceptable, however, because it allows the victim of a child's tort to recover damages from the child's parents. Once a child is held liable, the child's parents can be held vicariously liable." Are those statements true? Explain your answer. Generally courts have held a lower standard of care when dealing with minors, however the rule is different if the child is participating in an action that is an adult activity, such as driving a boat. Under the Parental Responsibility Act parents are not held vicariously liable regarding their children. However, they can be held liable if they are not properly supervising the children. Summarize the factors that a judge considers in deciding whether the defendant breached the standard of care. The judge will look at the following factors: - Reasonably foreseeable risk - A reasonable person takes precautions against risk, even if it is 1 in 1000. However, a reasonable person cannot take precautions for unforeseeable risk. - The likelihood and severity - If there is a higher likelihood or severity of the outcome, then a reasonable person would take more care to make sure protections were in place. - Affordability - If it is cheap to institute then a reasonable person would spend the money to make institute the precautions. - Social Utility - If it has a great social utility then a reasonable person can act in a way that creates a risk. An example is an ambulance driving through a red light to save a dying patient. - Sudden Peril Doctrine - Less care is required in emergencies, as even a reasonable person can make mistakes during an emergency.

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 awarded. 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 them. 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