Chapter 5: Negligence, Profesional Liability, and Insurance

What must a plaintiff establish to succeed in a negligence action?

Four elements:

Duty of Care – defendant owed a duty to take reasonable care.

Breach of Standard of Care – defendant failed to meet the reasonable person standard.

Causation – defendant’s breach caused the injury (“but for” test).

Damages – plaintiff suffered actual harm or loss.

What remedies are available for intentional torts that may not be available for negligence?

Punitive damages or exemplary damages may be awarded for intentional torts but are rarely awarded for unintentional negligence.

What is the reasonable person test?

A legal standard used to determine if conduct is negligent: "What would a reasonably prudent person have done in the same circumstances?"

How do courts determine whether a defendant owed a duty of care?

By using the foreseeable plaintiff / reasonable foreseeability test:

Was the plaintiff a reasonably foreseeable victim?

Was there proximity (time, place, relationship) between the parties?

Are there policy reasons limiting the scope of duty?

How did the Supreme Court of Canada modify duty of care using the Anns case test?

The Anns test adds a two-stage analysis:

Foreseeability & proximity – is harm foreseeable and is there a close relationship?

Policy considerations – are there reasons to limit or negate the duty? This expanded Donoghue v. Stevenson’s “neighbor principle” to include policy-based limits.

Distinguish misfeasance and nonfeasance.

Misfeasance: wrongful act – courts more willing to impose liability.

Nonfeasance: failure to act – only actionable if a specific duty to act exists (e.g., parent, lifeguard).

How is the standard of care determined in negligence cases?

By applying the reasonable person standard considering:

Foreseeability of harm

Likely seriousness of harm

Practicality of precautions

Professional skill (for experts)

How has occupiers' liability changed recently?

Modern laws require occupiers to take reasonable care to ensure safety for all visitors, including damage to property brought onto premises.

How does the "but for" test work in causation?

Plaintiff must show the injury would not have occurred but for the defendant’s negligent act. For multiple causes, courts may apply material contribution test.

Distinguish thin skull and crumbling skull rules.

Thin skull: defendant takes victim as found; fully liable for pre-existing vulnerabilities.

Crumbling skull: defendant only liable for additional harm caused, not pre-existing condition.

How has contributory negligence been modified?

Previously a complete bar; now partial liability allows courts to apportion damages based on plaintiff’s share of fault.

Why is volenti non fit injuria difficult to prove?

Plaintiff must have knowingly assumed both physical and legal risk, with mutual understanding that the defendant had no duty of care.

What obligations does a producer have regarding products?

Must ensure safety and proper warnings, liable to buyers, users, and foreseeable third parties.

Why is Haig v. Bamford important?

Clarified liability for foreseeability and proximity in negligence; illustrates courts' approach to duty of care.

How does the Anns case affect professional liability?

Foreseeability + policy analysis can establish duty of care in professional contexts, expanding liability beyond contractual duties.

What principle is established in Rylands v. Fletcher?

Strict liability for non-natural use of land causing harm; applied when damage is highly unusual or inherently dangerous.

What is vicarious liability and its limits?

Employers held liable for employees’ wrongful acts done in the course of employment; not for independent actions outside scope of employment.

How does standard of care differ for professionals?

Higher standard based on specialized skills expected of the profession; judged against reasonable professional in same field.

What is a fiduciary duty?

Duty to act in best interest of another, arises in relationships of trust (e.g., agent-principal, director-corporation).

What powers do professional organizations have?

Can regulate education, licensing, conduct, and discipline members. Members have rights to notice, hearing, and representation during proceedings.

Distinguish business interruption insurance and fire insurance.

Fire insurance: covers property damage.

Business interruption: covers lost income and continuing expenses during downtime. Businesses often need both to restore financial position.

What is insurable interest?

Must suffer real loss from the insured event. Applies to property, life, or liability insurance.

What remedies does an insurer have for misrepresentation?

Can deny coverage, reduce payout, or cancel policy if insured misrepresented material facts.

What is the right of subrogation?

Insurer can step into insured’s shoes after paying claim and sue the party causing the loss to recover damages.

How do insurers minimize losses beyond subrogation?

Options include repair, replacement, or salvage of damaged property, or settlement strategies to reduce payout.