Some brief summaries of the nature of Tort Law (based on Canadian law).
II . Introduction to the Tort of Negligence (Canadian Law)
2. The Elements of a Negligence Action: The Elements of the Tort of Negligence
In the Elements of a Negligence Action it is the plaintiff who usually bears the burden of proving the first five in the following list, while the defendant has the burden of proving the sixth. The list is:
- 1. Duty of Care (limiting step) – this duty of care exists when it is reasonably foreseeable that your actions will have an effect on another person
2. Standard of Care and its Breach – in most negligence actions, the standard of care is the reasonable person standard
3. Causation – Consider, has the breach of the duty of care caused an injury to the plaintiff? Conversely, but for the breach of the duty of care, would the injury have occurred?
4 . Remoteness of Damages (limiting step) – if the damages are found to be to remote from the breach of the standard of care, the plaintiff will not win the case
5 . Actual Loss – without loss, the plaintiff will not be successful (as opposed to intentional torts)
6 . Defences – voluntary assumption of risk, illegality
IV: NEGLIGENCE: DUTIES OF AFFIRMATIVE ACTION (Categories)
Category #1: Creation of Control of Risky Situation
Category #2: Paternalistic Supervision and Control
Category #3: Public Function or Responsibility
Category #4: Gratuitous Undertakings and Reliance
V. NEGLIGENCE: SPECIAL DUTIES OF CARE
2. The Duty of Care Owed to Rescuers
3. Nervous Shock: Historically – conservative judicial policy toward psychiatric claims implemented by narrow definition of recoverable psychiatric loss and heavy restriction on scope of Duty of Care to avoid such loss; Reasons for conservatism: Policy (floodgates), challenges to loss assessment; cultural stigma.
4. A Manufacturer’s and Supplier’s Duty to Warn
LEARNED INTERMEDIARY RULE
28 Generally, the rule is applicable either where a product is highly technical in nature and is intended to be used only under the supervision of experts, or where the nature of the product is such that the consumer will not realistically receive a direct warning from the manufacturer before using the product. In such cases, where an intermediate inspection of the product is anticipated or where a consumer is placing primary reliance on the judgment of a “learned intermediary” and not the manufacturer, a warning to the ultimate consumer may not be necessary and the manufacturer may satisfy its duty to warn the ultimate consumer by warning the learned intermediary of the risks inherent in the use of the product
29 …The rule operates to discharge the manufacturer’s duty not to the learned intermediary, but to the ultimate consumer, who has a right to full and current information about any risks inherent in the ordinary use of the product. Thus, the rule presumes that the intermediary is “learned”, that is to say, fully apprised of the risks associated with the use of the product. Accordingly, the manufacturer can only be said to have discharged its duty to the consumer when the intermediary’s knowledge approximates that of the manufacturer. To allow manufacturers to claim the benefit of the rule where they have not fully warned the physician would undermine the policy rationale for the duty to warn, which is to ensure that the consumer is fully informed of all risks. Since the manufacturer is in the best position to know the risks […] the primary duty to give a clear, complete, and current warning must fall on its shoulders.
5. Liability of Public Authorities: Statutory Duty (mandatory exercise) v. Statutory Power (optional exercise)
6. Economic Loss: Negligent Misrepresentation
VI. NEGLIGENCE: BREACH OF DUTY
1. The Common Law Standard of Care: The Reasonable Person Test
2. Factors Considered in Determining Breach: Probability and Severity of the Harm
-these two factors must be considered at the time of the breach, rather than in hindsight
-what would a reasonable person in the defendant’s position have done?
3. Economic Analysis
4. Special Standards of Care