law 140 – torts – negligence flow chart 2010‐11 – secon...

Duty of Care

Standard of Care

Causa0on

Remoteness

Defenses

Damages

LAW 140 – Torts – Negligence Flow Chart 2010‐11 – Sec0on 004 – Professor Kelly

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Duty of Care Does the rela3onship fit into an exis3ng category? [26 & 27]

Is the rela3onship analogous to an exis3ng category?

Con$nue to Standard of

Care

Yes

Yes

No Start Consider Test from Cooper [24]

No

Was the harm that occurred a reasonably foreseeable consequence of D’s act?

Con3nue

Did D’s act create the risk of any kind of injury? [25]

Con3nue Was the risk of injury specific to P or a class of Ps? [25]

No

Tort Claim Fails, D Wins

Yes

No

Were the par3es in a rela3onship of proximity? [24]

Yes

No

Yes


Is this a tort about negligent misrepresenta3on or pure

economic loss? Yes

Is there a policy reason to prevent a duty between

these two par3es?

No Do residual

policy concerns negate the duty?

No Yes

Ensure that reliance by P was reasonable. [30]

Did D know the iden3ty of P (or the class of Ps) who would rely on the statement? [30]

Con3nue

Yes

Con$nue to Standard of

Care

No

No

Did P use the statement for the precise purpose for which it was made? [30]

No

Does an unambiguous disclaimer clause

exist? [30]

Yes

Yes

Yes


Do residual policy concerns negate the duty?

No Yes

No

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)

Yes

Standard of Care

Does D suffer from a relevant disability?

[32]

Start Is D a child engaged

in a non‐adult ac3vity? [32]

Is D a professional ac3ng in the course of his profession? [32]

No No No

Proceed using the reasonable person. [31]

Proceed using a reasonable member of the profession

using standard prac3ces. [32]

Proceed using a reasonable child of D’s age, intelligence

and experience. [32]

Proceed using a reasonable person with D’s disability. Consider if he should be aware of it and taking precau3ons.[32]

Yes Yes Yes

What care would have been taken by the appropriate reasonable person in the circumstances per Arland? [31]

Con3nue Con3nue Con3nue Con3nue

Con3nue What was the probability of

foreseeable harm? [31]

What was the severity of the foreseeable

harm? [31]

Con3nue What were the social and personal costs of preven3on? [31]

Con3nue

Does the severity of the harm, weighted by its probability, outweigh

the costs of preven3on? [31]

Con3nue

If D is employed as a public authority, reconsider with social

benefits of the ac3on. [31]

No S3ll No Is D a professional

ac3ng in the course of his profession? [32]

Con$nue to Causa$on

Yes Now Yes

Consider if the professional standard

is too low. [32]

Yes


No

Is the prac3ce in ques3on too complex, technical, or scien3fic for the ordinary judge or jury to understand? [32]

Con3nue


Yes

Did D fail to meet a reasonable precau3on obvious to the ordinary judge or jury? [32]

No Yes

No

Standards of Care 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)

Causa0on Did P suffer a divisible loss? [34]

Start

Assume “But for…” test for each D. [33]

Yes

What kind of indivisible loss? [34]

No

Are there mul3ple negligent par3es

obscuring the true D?[33]

Con3nue

Burden shids to Ds to disprove causa3on individually. [33]

Yes

Con$nue to Remoteness

Regardless

Is there a learned intermediary? [33]

No

Did P discharge its duty by informing the

expert?[33]

Yes

No


Yes Did P give informed

consent where D failed to warn P of risks? [33]

No

Would a reasonable person in P’s posi3on have consented if

properly informed?[33]

Yes

Yes

No

Did D materially increase the risk to P amidst other

causes? [33]

No

Is it impossible to use the “But for…” test?[33]

Yes Did P’s injuries fall within the ambit of risk of D’s breach of the standard of care? [33]

Yes

Yes

Apply the standard “But for…” test. Relax the standard where the science is not conclusive. [33]

Con$nue to Remoteness


No No No

Failure

Success

Was there more than one

tort? [34]

All Insufficient

No

Would the tort have occurred without both

D’s conduct?[34]

Yes

One or more Sufficient

Yes

No

Success Against Mul3ple Ds: They all become joint and severally liable, may sue each other on specific %s.

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). If caused by non‐culpable behaviour, D can rely on the successive injury to reduce damages (Penner 34)

Joint Torieasors: Are liable for the losses caused by the other torieasors even if they didn’t directly cause it. 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.

Remoteness Is there reason to use the old test from

Wagon Mound #1? [35]

Start

Seriously? Follow WM#2 test,

replace with reasonably foreseeable.

Yes

Seriously

Were P’s injuries possible based on D’s negligence? Note they do not need to be likely and can happen only very

rarely in excep3onal circumstances. [36]

Whoops

No, Wagon Mound #2


No 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]

Con3nue

Con3nue

Are you sure? This is a low standard?

Yes Was there an intervening cause? [36]

Con$nue to Defenses

No

Yes

No

Was it a foreseeable result of D’s ac3on? If yes, appor3on damages. Subject new Ds to WM#2 test. [36]

Yes


Yes

No

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 pre‐exis3ng 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.

Defenses Start

Yes

Yes

No

Did something happen over which D had no control and which could not have been

avoided with the greatest skill? [42]

Maybe

P can only get medical damages etc. no profits or lost income.[42]

Ex Turpi: Was P par3cipa3ng in a criminal ac3vity when the tort happened? [42]

Was it an inevitable

accident?[42]

Per Hall, would it damage the integrity of the legal

system for P to recover? [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] Yes

No

Con3nue

Check Contributory

Negligence. [41]

No

No Con3nue

Recall CN is harder to prove than N. [41]

Con3nue P should not be expected to meet the same standard

of care as D. [41]

Con3nue 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]

Con3nue Was P CN? [41]

Appor3on Losses. [41]

Yes Check

Vicarious Liability. [40]

Con3nue

No

Does statutory VL apply; or is D the employee or

agent of X? [40]

Con3nue Statute or Agent

Are D and X in an employment rela3onship covered by VL per Saggaz? (Control Factors) [40]

VL applies, X is now liable in addi3on to

D. [41]

Con$nue to Damages

No Con3nue

Employee

No

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]

Con$nue to Damages

No

Yes VL applies, X is now liable in addi3on to

D. [41]

Yes

Con3nue

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.

Damages Did P act reasonably, in all the circumstances of the case, to

mi3gate their loss per Janiak? [43]

Start

Types of Damages: Nominal – 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

Treat as CN, reduce

damages. [43]

Offset any losses P would’ve incurred had the incident not occurred. [43]

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]

Present

Future Con3nue No

Yes

Con3nue 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]

Con3nue

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]

Con3nue

Consider pecuniary loss: relevant factors per Andrews: Make allowances for interest rates,

infla3on, taxa3on, etc. [43]

Con3nue

Consider non‐pecuniary loss per Andrews: Use a func3onal approach aiming to provide P with

reasonable solace for his loss. [43]

Con3nue

Recall that non‐pecuniary awards should be based on previous decisions, but more importantly on

fairness and reasonableness. [43]

Con3nue Con3nue Consider non‐compensatory damages. [43]

Con3nue

Lost Income for Children: Use income tables. Note that these have various prejudices: men favoured. Family background and character traits of parents evaluated to determine how children will turn out.

Award Damages, P

Wins

Check all damages to prevent double‐compensa3on for

anything. [43]

Con3nue

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