Broad
What is negligence?
An unintentional tort that allows a victim of a tortfeasor (person who committed the tort) and allows the plaintiff to recover their losses.
Does the defendant owe the plaintiff a (fill in the blank)? (the name of element 1)
Duty of Care
What is “a reasonable person?”
A typical person of average intelligence, skill, shows prudence, and is not perfect.
What does there need to be to prove Element 3?
Damages → the plaintiff must prove they sustained damages that are recoverable in law (KEEP THOSE RECEIPTS/is there proof of a loss and/or damage) (ie.appointment bills)
What does the plaintiff need to prove?
They need to prove that their injuries/loss is not too remote. That the defendant had foreseeability that their actions would cause the extent of the damages.
What is the name of the case law that sets the stare decicis (precedent) for negligence and Element 1 of the 5 Elements of Negligence? THE CASES ARE IMPORTANT
Donohue v. Stevenson
In the case of a novel relationship, what test needs to be applied?
The Anns/Kamloops Test
How does this differ from “a reasonable expert?”
A reasonable expert is held to a higher level as they have to answer and upheld to various Code of Conduct, Ethics, and legislation. (codified in law)
For (fill in the blank), the plaintiff must show that their injuries/loss were caused by the defendant. (What is Element 4)
Causation (in fact)
What cases do we take legal principle of to aid in deciding if a claim is within bounds?
Wagon Mound 1 (too remote, too many variables) & Wagon Mound 2 (1 variable that could have been easily controlled) USE THE LEGAL PRINCIPLE IN THE SLIDES this is just simplifying them!!! You can also use Mustapha v. Culligan.
What is the legal principle that it set?
Negligence is an actionable tort! It also set out Element 1 of the elements of Negligence and that manufacturers owe customers/consumers it.
What are the steps of the test laid out above?
1. a) is there foreseeability?
1. b) is there a proximate relationship?
2. are there policy reasons against it?
What is the difference between a misfeasance and a nonfeasance?
Misfeasance = a wrong
Nonfeasance = a wrong done by not doing something you ought to have done
What is the “but for test?”
But for X did not happen, would Y have happened? If Y could not have happened otherwise then it is established that causation has occurred.
(ie. but for if the city properly salted the sidewalks, Dolores wouldn't have broke her hip by slipping)
What is ‘thin skull’ referring to?
The plaintiff can establish that a person of ordinary fortitude would have suffered an injury in the circumstances (not a pre-existing condition).
What are the 5 Elements of Negligence?
1) Duty of Care
2) Standard of Care
3) Damages
4) Causation
5) Remoteness
How could said test fail?
1. a) if the action was not foreseeable.
1. b) if there was no proximate relationship (ie. complete strangers)
2. there are policy reasons against it
What does objective and subjective mean (in simple terms)?
Objective is a neutral/non-influenced view (the “reasonable man”)
Subjective is a more nuanced view with room to interpret through a different viewpoint (ie. reasonable expert, reasonable minor)
What is the “material contribution test?”
If there is more than one tortfeasor, a material contribution test can decide that both parties are as equally liable and the compensation for the plaintiff is shared between them. It must pass the but for test, and the plaintiff is unable to identify which tortfeasor is responsible. BOTH PARTIES ON THE HOOK!
What is ‘crumbling skull’ referring to?
The plaintiff has a pre-existing condition that would have impacted their life regardless of if the tortious action had happened.
How do you note up a case/make a case brief?
Case Name: Donohue v. Stevenson
Parties: Plaintiff & Defendant
Facts: the facts of the case
Issue: the question at hand
Held: the decision of the court
Legal Principle/Ratio: the new precedent (ie. negligence is an actionable tort and manufacturers owe customers Element 1)
For the test mainly take note of Case Name and Legal Principle!
List some policy reasons.
Economic policy, Governmental policy, Litigation Chill, Environmental policy, Floodgates
How does Moule v. New Brunswick Electric demonstrate how one can show Element 1 was acknowledged, yet met the requirements for Element 2?
There was a duty of care that was owed, however they met the standard of care by limbing the tree.
On what do these tests need to be proved on (think back to test one and proving a civil case)?
A balance of probabilities (more likely than not).
In each Element of Care, there are various cases which have set the precedent. Make note of them and the legal principle they laid out. (2,000 bonus points).
You can find these cases in the slides.
These are brief notes!
Donohue v. Stevenson (negligence is an actionable tort and sets out a duty of care and the neighbour principle)
Arland v. Taylor (standard of care and what a ‘reasonable man’ is)
Athey v. Leonati & Smith v. Leech Brain Co. (causation, but for & material causation tests)
Wagon Mound 1 (too remote), Wagon Mound 2 (foreseeable), and Mustapha v. Culligan (all used for remoteness)