LAW 140 Torts Negligence Flow Chart Sec0on 004 Professor Kelly. Remoteness

Transcription

1 LAW 140 Torts Negligence Flow Chart Sec0on 004 Professor Kelly Duty of Page 1 Standard of Page 2 Causa0on Page 3 Remoteness Page 4 Defenses Page 5 Page 6

2 Duty of Does the rela3onship fit into an exis3ng category? [26 & 27] Is the rela3onship analogous to an exis3ng category? Consider Test from Cooper [24] Standard of Were the par3es in a rela3onship of proximity? [24] Was the risk of injury specific to P or a class of Ps? [25] Did D s act create the risk of any kind of injury? [25] Was the harm that occurred a reasonably foreseeable consequence of D s act? Is this a tort about negligent misrepresenta3on or pure economic loss? Is there a policy reason to prevent a duty between these two par3es? Do residual policy concerns negate the duty? Did P use the statement for the precise purpose for which it was made? [30] Did D know the iden3ty of P (or the class of Ps) who would rely on the statement? [30] Ensure that reliance by P was reasonable. [30] Standard of Does an unambiguous disclaimer clause exist? [30] Do residual policy concerns negate the duty? Established Du3es: Manufacturer to consumer (Donoghue 24) Misfeasance in public office (Cooper 24) Warn of risk of danger (Cooper 24) Inspec3on (Cooper 24) Conduct undertaken work (Cooper 24) Trimming trees under power lines (Moule 25) Perform a rescue already undertaken (Ma;hews 26 & 27) Commercial hosts and patrons of all kinds (Crocker 26) Duty to control others (List on 26) Police where crime is foreseeable (Jane Doe 26) Pre concep3on wrongs (Paxton 27) Wrongful Pregnancy (Kealy 27) Pre natal injuries other than mother (Dobson 27) Manufacturer to eventual consumer (Hollis 27) Negligent misrepresenta3on (List on 30) Professional rela3onships (Obvious)

3 Standard of Does D suffer from a relevant disability? [32] Is D a child engaged in a non adult ac3vity? [32] Is D a professional ac3ng in the course of his profession? [32] Proceed using a reasonable person with D s disability. Consider if he should be aware of it and taking precau3ons.[32] Proceed using a reasonable child of D s age, intelligence and experience. [32] Proceed using a reasonable member of the profession using standard prac3ces. [32] Proceed using the reasonable person. [31] What care would have been taken by the appropriate reasonable person in the circumstances per Arland? [31] What was the probability of foreseeable harm? [31] What was the severity of the foreseeable harm? [31] What were the social and personal costs of preven3on? [31] Is D a professional ac3ng in the course of his profession? [32] S3ll If D is employed as a public authority, reconsider with social benefits of the ac3on. [31] Does the severity of the harm, weighted by its probability, outweigh the costs of preven3on? [31] w Consider if the professional standard is too low. [32] Is the prac3ce in ques3on too complex, technical, or scien3fic for the ordinary judge or jury to understand? [32] Did D fail to meet a reasonable precau3on obvious to the ordinary judge or jury? [32] Causa$on Standards of to Consider: Would it have been enough to warn P, or to post warnings to the world? Does a statute such as the Good Samaritan Act raise the standard of care to gross negligence? Courts demand a higher standard where the foreseeable harm includes bodily injury, especially specific injuries. (Paris 31) Arland (31) defines the reasonable man. Courts generally have a lower than expected standard for children (Joyal 32)

4 Causa0on Did P suffer a divisible loss? [34] What kind of indivisible loss? [34] One or more Sufficient All Insufficient Was there more than one tort? [34] Successive Causes of Parallel Injury: If caused by tor3ous behaviour, D can t rely on it to escape damages unless it somehow improves P s condi3on (Baker 34). Assume But for test for each D. [33] Are there mul3ple negligent par3es obscuring the true D?[33] Is there a learned intermediary? [33] If caused by non culpable behaviour, D can rely on the successive injury to reduce damages (Penner 34) Burden shids to Ds to disprove causa3on individually. [33] Did P discharge its duty by informing the expert?[33] Did P give informed consent where D failed to warn P of risks? [33] Joint Torieasors: Are liable for the losses caused by the other torieasors even if they didn t directly cause it. Regardless Remoteness Would a reasonable person in P s posi3on have consented if properly informed?[33] Per Cook 34, agents, employees, and those who act in concert to being about an end that is illegal, inherently dangerous, or is one from which negligence can be expected. Did P s injuries fall within the ambit of risk of D s breach of the standard of care? [33] Is it impossible to use the But for test?[33] Did D materially increase the risk to P amidst other causes? [33] Success Against Mul3ple Ds: They all become joint and severally liable, may sue each other on specific %s. Failure Apply the standard But for test. Relax the standard where the science is not conclusive. [33] Would the tort have occurred without both D s conduct?[34] Success Remoteness

5 Remoteness Is there reason to use the old test from Wagon Mound #1? [35], Wagon Mound #2 Were P s injuries possible based on D s negligence? te they do not need to be likely and can happen only very rarely in excep3onal circumstances. [36] Follow WM#2 test, replace with reasonably foreseeable. Seriously Seriously? Whoops Consider with Hughes and Assiniboine principle: Damage must be of the same kind that was foreseeable; extent and incidence then don t maker. [35 & 36] Are you sure? This is a low standard? Defenses Was it a foreseeable result of D s ac3on? If yes, appor3on damages. Subject new Ds to WM#2 test. [36] Was there an intervening cause? [36] Thin Skull Rule: A torieasor must take D as they find them. If P suffered more harm then the average man because of a par3cular suscep3bility, that would not naturally have led to harm, D is s3ll liable for all of the harm. This doctrine is not affected by remotes. Per Leech Brain 35 the test is whether P could have reasonably foreseen that D would be harmed, not that could have reasonably foreseen that D would be harmed and then die to a pre exis3ng condi3on. The standard of reasonable foreseeability was later reduced by WM#2. Crumbling Skull Rule: Related, to the thin skull rule, this applies where the vic3m has a preexis3ng condi3on that would have eventually led to the injury that he sustained without D s interference. In this case D is only liable for the 3me he sped up the injury. If would have suffered the injury in X years had D not entered his life, D is only liable for damages for X years. Usefulness of Remoteness Remoteness has become so watered down and friendly to P that it is effec3vely a non issue in modern 3mes. Losing a tort to remoteness absent an intervening cause is extremely unlikely.

6 Defenses Was it an inevitable accident?[42] Volen3: Was there an understanding between the par3es that D assumed no responsibility for P and that P didn t expect him to? [42] Ex Turpi: Was P par3cipa3ng in a criminal ac3vity when the tort happened? [42] Maybe Did something happen over which D had no control and which could not have been avoided with the greatest skill? [42] P can only get medical damages etc. no profits or lost income.[42] Per Hall, would it damage the integrity of the legal system for P to recover? [42] Judge P not by what a prudent man would ve ordinarily done but by what he might do in the situa3on created by D. [41] Was P CN? [41] Appor3on Losses. [41] Check Vicarious Liability. [40] P should not be expected to meet the same standard of care as D. [41] Does statutory VL apply; or is D the employee or agent of X? [40] Recall CN is harder to prove than N. [41] Statute or Agent VL applies, X is now liable in addi3on to D. [41] Check Contributory Negligence. [41] Employee VL applies, X is now liable in addi3on to D. [41] Was D ac3ng in the course and scope of his employment per Salmond? (Acts authorized by X or acts so connected to what is authorized they might be regarded as the former) [40] Are D and X in an employment rela3onship covered by VL per Saggaz? (Control Factors) [40] Possible Alterna3ve to Salmond VL Test: Bazley (40): Different framework to evaluate if VL should apply, but so far confined to inten3onal torts. Should consider whether VL should apply as a policy considera3on. Is the tort sufficiently related to the conduct authorized by X? Generally appropriate if the tort is connected to the crea3on or enhancement of a risk by X. Should consider whether X gave D the opportunity to abuse his power, the extent to which D s act furthered X s aims, the extent to which it was related to fric3on inherent in the job, the extent of the power conferred to D in rela3on to X.

7 Present Did P suffer a loss due to the incident or a likelihood of a future loss? [43] Mul3ply all damages by likelihood of future injury. [43] Did P act reasonably, in all the circumstances of the case, to mi3gate their loss per Janiak? [43] Future Consider pecuniary loss: future care per Andrews: The amount which should reasonably be expected to return P to their posi3on before the injury. Rely heavily on experts. [43] Offset any losses P would ve incurred had the incident not occurred. [43] Treat as CN, reduce damages. [43] Consider pecuniary loss: lost income per Andrews: Consider age, projected wages, length of working life. Balance with con3ngencies such as unemployment or economic downturn. [43] Consider pecuniary loss: relevant factors per Andrews: Make allowances for interest rates, infla3on, taxa3on, etc. [43] Consider noncompensatory damages. [43] Recall that non pecuniary awards should be based on previous decisions, but more importantly on fairness and reasonableness. [43] Consider non pecuniary loss per Andrews: Use a func3onal approach aiming to provide P with reasonable solace for his loss. [43] Check all damages to prevent double compensa3on for anything. [43] Award, P Wins Lost Income for Children: Use income tables. te that these have various prejudices: men favoured. Family background and character traits of parents evaluated to determine how children will turn out. Types of : minal vindicate P s rights in situa3ons where no injury occurred not applicable in negligence as injuries are required Compensatory compensate P for any loss suffered and return him to his situa3on before the tort occurred main negligence award Aggravated subset of compensatory, intended to compensate for loss of dignity, humilia3on or distress very rare in negligence Puni3ve a form of punishment, denuncia3on and deterrence rare in negligence as usually D is just careless Special pre trial pecuniary (financial) losses such as expenses and lost wages General pre trial non pecuniary (non financial) losses and all post trial losses such as pain and suffering, future expenses and future lost income