Duty of Care
What is the creature that started the modern negligence action?
A snail
What is the "standard of care"?
The standard by which negligent behaviour is judged - that of a reasonable person in the same position as the defendant.
What is the "but for" test? T
The primary test for causation in Canadian law. It is stated several ways: The plaintiff's harm would not have happened "but for" the negligence of the defendant.
What is the first leading case on the modern theory of remoteness?
Wagon Mound 1, but I will also accept Justice Andrews' dissent in Palsgraf.
What are the three ways a plaintiff can contribute to her own harm?
Active contribution (ie, bad driving); increasing the risk of harm; and failing to take reasonable precautions.
What is defamation?
Either spoken or written words that tend to bring he reputation of the plaintiff into disrepute.
In a novel claim for pure economic loss, what is the first thing a court will determine?
whether the plaintiff and defendant were "proximate". in a case of pure economic loss, there is always a contract somewhere. The proximity question can often be dealt with by asking whether the plaintiff had options under the contract
What is the leading Canadian case regarding duty of care in novel cases?
Cooper v Hobart.
What happened in Boulton v Stone?
The members of a cricket club were sued by a woman who was hit by a ball which went over the fence surrounding the club.
What happened in Harris v TTC?
The case that said rotten children can stick their hands out of the window of a bus, and still collect damages, even if there is a warning posted.
What is the remoteness rule for rescuers who sue for damages?
There isn't one. Rescuers will almost always recover damages.
What is the Latin term for "a volunteer can't complain of injury"?
volenti non fit injuria.
What case says judges are allowed to draw reasonable inferences about causation?
Athey v Leonati
What are the elements of the Anns/Cooper test?
Stage 1a Foreseeability + Stage 1b proximity = prima facie duty; Stage 2 Public policy reasons to negative the prima facie duty
What happened in Waldick v Malcolm?
The plaintiffs slipped on the ice on the driveway of the defendants' home. The defendants argued that no one salted and sanded their driveways in that community, so the community standard was the appropriate standard of care. The defendants lost.
What is the rule about damages in Athey v Leonati?
What is the rule in Athey v Leonati? If a defendant was "a" cause of the injury to the plaintiff, the defendant may be liable for all of the harm.
Who wrote the majority judgment in Palsgraf and Long Island Railway?
Justice Cardozo. All my respect if you also tell me this was an American decision.
What is a liability waiver?
A contractual promise made by a potential plaintiff that she will not and cannot sue a defendant for negligence (or anything else), usually in exchange for permission to engage in an activity.
Name four defences to defamation
Truth, Absolute Privilege, Qualified privilege, Fair comment - you can also add "innocent dissemination"
A crumbling skull plaintiff is...
Someone who already has an injury, and has symptoms, but the injury is made worse by the defendant's negligence.
What happened in Hill v Hamilton?
The plaintiff was charged with ten counts of break and enter. The Crown did not investigate other defendants. The court allowed the novel tort of negligent investigation, but the plaintiff lost on standard of care.
What is the rule in Saskatchewan Wheat Pool?
The existence of a statutory obligation does not always define the standard of care in a negligence case
What is the rule in Cook v Lewis?
If two or more defendants have both done the same act, and the plaintiff has been injured, but and no one can tell which one actually caused the harm, both are equally liable.
What is a thin-skulled plaintiff?
A plaintiff with a predisposition, but no overt symptoms.
What is the rule in Hall v Herbert?
The defence of ex turpi causa is to be applied in cases in which the plaintiff is claiming to profit from his or her illegal conduct.
What is the main element in the tort of deceit?
Fraud
Why was Hedley Byrne v Heller such an important case?
It is a decision of the House of Lords in which there was no contractual relationship between the plaintiff and defendant. The plaintiff asked a bank for credit information about one of its customers. The bank replied vaguely that the customer could meet its current obligations, but also added a disclaimer in the letter. In short, the case created the potential for claims for negligent misrepsentation.
The case in which it was held that the police have an obligation to prevent crime, which may include an obligation to warn citizens of harm
What is Jane Doe v Metropolitan Toronto (Commissioners) of Police
What is "informed consent"?
The information a physician must give a patient so she can make a proper decision about whether to have a medical treatment or procedure.
What is the rule in Clements v Clements, or what is the material contribution to risk test?
If there is more than one cause of the harm to the plaintiff, and it is not possible to apply the but for test fairly, the court will consider whether a defendant contributed to the harm in a significant way.
What is the remoteness rule for psychiatric damage?
The plaintiff must suffer mental damage that a person of "ordinary fortitude" would also suffer.
What is the statutory provision in Ontario that allows for contributory negligence, or apportionment of fault, in Ontario?
Section 3 of the Negligence Act.
A student sends an email to a prof saying "you are a horrible professor, a jerk, a malicious POS" and so on. The student intends the email to be sent to the prof only, but hits "reply all". Is the statement published?
Yes.
The cap on damages for pain and suffering in Canada is now...
Somewhere north of $400,000.