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NEGLIGENCE
Negligence
Negligence
Involves inadvertent (non-intentional), careless
conduct that causes injury or loss to another
Important area of tort liability for professionals-
lawyers, doctors,
accountants, architects and other professionals
another
Elements of negligence: A,B,C & D
Is a Duty Owed?
To determine if Duty of care is owed to anyone, need to apply the reasonable
foreseeability test
- Duty of care owed to anyone we can reasonably foresee would be harmed by
our actions
Donoghue v. Stevenson established test to determine if duty of care is owed
- Anns v. Merton London Burough Council case led to a further refinement of the
test-Now a two-stage test
First part: Degree of proximity between parties
• The HL, however, held that manufacturers owed duty of care to the
end consumers of their products.
• Lord Atkin's stated "a manufacturer of products, which he sells... to
reach the ultimate consumer in the form in which they left him... owes
a duty to the consumer to take reasonable care".
• Lord Atkin went on to establish what is known as the "neighbour
principle". "You must take reasonable care to avoid acts or omissions
which you can reasonably foresee would be likely to injure your
neighbour. Who, then, in law, is my neighbour? The answer seems to
be persons who are so closely and directly affected by my act that I
ought to have them in [mind] when I am [considering these] acts or
omissions.99—This is where the forseeability test comes into play
Donoghue v. Stevenson continued
In summary:
• If a manufacturer is going to put its products in the channels of
commerce, then it owes a duty of care to all end consumers of its
product.
• End consumers are not always the purchasers. You mom, dad, brother
and sister may buy things that you end up consuming often.
• For example: Toyota recalled more than 10 million vehicles after receiving
claims that the vehicles were accelerating unexpectedly. Many incidents of
sudden acceleration occurred when floor mats were caught under accelerator
pedals. In others, the pedals themselves may have been defective. If you dad
bougt you one of those cars from a Toyota dealer and you got into an accident
because of the defect, you would likely be able to establish that Toyota owed
you- end cosumer- a duty of care.
Anns v. Merton London Burough Council
[1978] AC 728 (HL)
50 years after Donoghue v. Stevenson, in 1978,the HL, in the case of Anns v.
Merton Burough case, established a broader test for establishing a duty of care.
Often it is said that Anns case established a two stage test for establish whether
duty of care exists.
In Anns, the plaintiffs were tenants in a block of flats under a 999year lease.
The flats suffered from structural defects due to inadequate foundations which
were 2ft 6in deep instead of 3ft deep as required by the bylaws of the Burough.
The defendant Merton Burough Council was responsible for inspecting the
foundations during the construction of the flats. Their inspector failed to
properly inspect and the Plaintiffs noticed cracks in the ceilings of the flat.
Developer was likely long gone and the plaintiffs pursued the Defendat
Merton Burough.
Anns case-continued
• The HL held that the defendant did owe a duty of care to ensure the
foundations were of the correct depth.
• Lord Wilberforce introduced a two stage test for imposing a duty of
care:
1. Is there a sufficient degree of proximity/relationship between the parties -A and B- such
that, it is forseeable to A that carelessness on his part may likely cause
injury/damage to B? If yes then a duty of care arises.
2. Is there any (policy) reason why the court should modify (or reduce or limit) the
scope of that duty?
- Reasonable person is: Not the average person; Not the perfect
person; Does not exist in reality
-E.g. Reasonable person would not have been texting while driving;
not throw remote in the audience as that sort of conduct falls
below socially acceptable standards and breaches duty of care.
B: Breach of the Standard of Care…
continued
• Here the risk of injury was great and therefore a correspondingly higher standard of
care.
• He actually plead guilty in criminal court for negligence causing death and was
sentenced to 5 months in prison
Parent of the victim may also sue him in a civil action. I am sure he had insurance that
covered his defence.
B. Breach of the Standard of care-Professionals-continued
• After showing breach of the duty of care, next must show that the breach
caused of injury or damages- have to show causation.
• Proving causation involves two steps- have to show physical causation and
legal causation.
• Legal Causation involves the Remoteness test - Whether the specific type of
injury suffered was reasonably foreseeable (Legal causation)
Mustapha case-over the page
• Mr. and Mrs. Mustapha were always both concerned about their
hygiene and health, keeping their house clean at all times. They heard
that Culligan water provided health benefits over city water. They
installed Culligan water dispensers in both the salons and their
home. For 15 years they were loyal customers of the brand.
• In November, 2001, while Mustapha and his wife were replacing the
water dispenser at home, they spotted a dead fly and part of another
inside the new, sealed Culligan water bottle.
• He said the fly in the water ruined his life, even wrecking his sex life. He said for
months he could not drink coffee made with water, and feared letting the shower water
hit his face directly. His regular nightmares involved flies flying on top of feces.
• Mr. Mustapha demanded financial compensation for his psychiatric injury caused by
Culligan's negligence in allowing the fly into the water bottle.
• At trial, the Ontario Divisional Court found Culligan liable in negligence, and awarded
Mr. Mustapha with $80,000 in general damages, $24,174.58 in special damages, and
$237,600 for loss of business.
• Culligan was concerned about the precedent of having to pay major financial
compensation for relatively minor lapses such as this. Other customers might make
similar claims for extraordinary compensation on the basis of a fly in the water, or even
less.
• Culligan appealed successfully to the Ontario Court of Appeal, which overturned the trial decision
on the basis that Mr. Mustapha's reaction to the dead fly was not reasonably foreseeable, and hence
did not give him a right to compensation. Appeal to SCC by Mustapha was unsucessful as SCC
agreed there should be no compensation paid by Culligan to Mr. Mustapha.
D: Damages
• Contributory negligence
- If plaintiff contributed to own loss, he/she must bear
some responsibility [e.g. Did not wear a seatbelt in the
accident]