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What is the tort of negligence?
Determines whether the defendant can be held liable for carelessly causing injury to the plaintiff.
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What does the tort of negligence require the plaintiff prove about the defendant?
1. Owed a duty of care
2. Breached the standard of care by acting carelessly
3. Caused harm to the plaintiff
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What are 3 defences for negligence that a defendant can prove about the plaintiff?
1. Contributory negligence
2. Voluntarily assumed the risk of being injuried
3. Was injured while engaged in some form of illegal behaviour.
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What is duty of care?
Exists if the defendant is required to use reasonable care to avoid injuring the plaintiff.
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What 3 questions are asked in order to determine duty of care?
1. Was it reasonably foreseeable that the plaintiff could be injured by the defendant's carelessness?
2. Did the parties share a relationship of sufficient proximity?
3. Was there a policy followed?
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Is the reasonable foreseeable test dependant upon whether or not the defendant personally knew that the plaintiff might get injured?
No, it is an objective test. Would a reasonable person in the defendant's position realize the possibility?
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What deals with the relationship that exists between the parties in relation to negligence?
Proximity.
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What is concerned with the effect that a duty of care would have an the legal system and on society in general?
Policy.
- Examples being:
- 'Openning the floodgates' - very large number of people persuing lawsuits.
- Interference with political decisions
- Hurt a valuable type of relationship - mother does not owe a duty of care to unborn child.
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What is the standard of care?
Tell the defendant how they should act.
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When is the standard of care breached?
When the defendant acts carelessly.
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What is the reasonable person test?
Requires the defendant to act in the same way that a reasonable person would act in similar circumstances.
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Do judges lower the standard of care for childern defendants?
Yeah, they do not have the same amount of knowledge, intellence or experince.
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What is the but-for-test?
Requires the plaintiff to prove that it would not have suffered a loss but for the defendant's carelessness.
- If yes, defendant not liable.
- If no, defendant might held liable.
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What is a balance of probabilities?
At least 51 percent liklihood.
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What is an all-or-nothing approach?
If it is over 51% likely that it is the defendants fault, then the plaintiff will be awarded damages for all of that loss.
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Does the plaintiff have to prove that the defendant's carelessness was the only cause of a loss?
No, just that is was a cause.
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What happens when different defendants cause the plaintiff to suffer different injuries?
Then each one is responsible accordingly.
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Is the situation more complicated if different defendants create a single injury?
For sure, fool.You can charge the full amount to one person or split it between the two.
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Can a court reject the but-for-test?
Yeah, if it would lead to an unfair result.
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What is a thin skull?
If the plaintiff was unusually vulerable to injury.
You would not be responsible if a normal person wouldn't suffer any harm. But you are fully responsible if a normal person would suffer harm.
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What is an intervening act?
An event that occurs after the defendant's carelessness and that causes the plaintiff to suffer an additional injury.
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What are the 3 most important defences for negligence?
Contributory negligence
Voluntary assumption of risk
Illegality
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What is contributory negligence?
When a loss is caused partly by the defendant's carelessness and partly by the plaintiff's own carelessness.
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What is voluntary assumption of risk?
If the plaintiff freely agreed to accept a risk of injury.
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What is illegality?
Plaintiff suffered a loss while participating in an illegal act.
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