Chapter 6

Outline the scope of the defence of illegality

The defence of illegality may apply if the plaintiff suffered a loss while participating in an illegal act.

Explain why the concept of proximity is important to the duty of care, especially in the context of claims for negligent statements

A duty of care will not be recognised unless there was also a relationship of proximity. The basic idea is that there must somehow be a close and direct connection between the parties. The different types of proximity are -Physical proximity - Social relationship - Commercial relationship (Client- Server) - Direct casual connection - Whether the plaintiff relied on the fact that the defendant represented that they would act in a certain way. The concept of proximity often plays a crucial role in determining whether or not a duty of care exists. The best example is negligent statements. in areas such as financial advisors, business consultants, lawyers, stockbrokers and bankers. Special rules are needed because careless statements are different from careless actions in at least three ways: 1) Since the dangers associated with physical conduct are usually obvious, the need for precaution is normally clear as well. 2) Careless action is limited in time and space while careless statements are not. (Words are more volatile than deeds) 3) Careless actions usually result in property damage or personal injuries while careless statements result in pure economic losses. There are special rules when deciding if a careless statement caused the plaintiff to suffer pure economic loss: 1) As a business person you should be very careful about providing information and advice. 2) If you do not wish to be held liable for your statements, you should clearly disclaim responsibility. 3) Third, you should be careful about relying on statements made by others.

Tort of negligence

Determines whether the defendant can be held liable for carelessly causing injury to the plaintiff. The tort of negligence requires true plaintiff to prove that the defendant: -Owed a duty of care, in that they were required to act carefully toward the plaintiff - Breach the standard of care by acting carelessly -caused harm to the plaintiff Three defences are: - The plaintiff was guilty of contributory negligence that caused or contributed to the injury - Voluntarily assumed the risk of being injured by the defendant - Was injured while engaged in some form of illegal behaviour.

Describe the nature and function of the concept of a duty of care.

Duty of care exists if the defendant is required to use reasonable care to avoid injuring the plaintiff. Without a duty of care, there cannot be liability, even if the defendant carelessly injured the plaintiff.

Outline the special considerations that arise when a court decides whether a professional has acted carelessly.

First, it is enough for a professional person, while engaged in a profession activity, to meet the standard that would be applied if a layperson performed the same task. A professional must act as a reasonable professional would: 1) They must live up to the training that they received or claim to have received. 2) Even within the same profession, more may be expected of a specialist than of a generalist. 3) Special allowances are not made for beginners. Second, by the standard of care is based on information that was reasonably available to the defendant at the time of the accident, not hindsight. Third, careless is different from mere errors of judgement. As long as the defendant's mistake is one that a reasonable professional might make, the standard of care is not breached. Fourth, a professional who follows an approved practice generally cannot be held liable. Fifth, just as compliance with a professional standard usually protects a professional from liability, so too compliance with a statutory standard may protect defendant.

Explain the role of policy under the duty of care concept, especially as it applies to the regulation of professions.

Policy is concerned with the effect that a duty of care would have on the legal system and on society generally.

Explain the term "reasonable foreseeability" and explain the ways in which that concept is relevant to the tort of negligence.

Reasonable foreseeability is objective, its whether a reasonable person in the defendant's position would have recognised that possibility.

Outline the nature and function of the but-for test

The but-for test requires the plaintiff to prove that they would not have suffered a loss but for the defendants's carelessness 1) The plaintiff generally has to prove all of the elements of the tort of negligence, including causation on a balance of probabilities. 2) The law generally adopts an all-or-nothing approach. 3) The plaintiff has to prove only that the defendant's carelessness was a cause- not necessarily the only cause of a loss. 4) If different defendants cause the plaintiff to suffer different injuries, then each one is responsible accordingly. 5) The situation is more complicated if different defendants create a single injury. 6) Sixth, a court may reject the but-for test if it would lead to an unfair result.

Briefly describe the defence of contributory negligence

The defence of contributory negligence occurs when a loss is caused partly by the defendant's carelessness and partly by the plaintiff's own carelessness. It may arise if the plaintiff: 1) Unreasonably steps into a dangerous situation 2) Unreasonably contributes to the creation of an accident 3) Unreasonably contributes not to the creation of an accident, but to the damage that it causes.

Describe the reasonable person and explain how that person is relevant to the standard of care.

The reasonable person test requires the defendant to act in the same way that a reasonable person would act in similar circumstances. The standard of care tells the defendant how they should act. The standard of care is breached when the defendant acts less carefully. Some of the important factors are: - The reasonable person is said to be objective. -The reasonable person takes precautions against reasonably foreseeable risks. - The reasonable person is influenced by both the likelihood of harm and the potential severity of harm. - The reasonable person is more likely to adopt affordable precautions. - The reasonable person may act in a way that has great social utility. -The standard of care requires the defendant to act as the reasonable person would act "in similar circumstances" Consequently, less care is required during emergencies. The sudden peril doctrine states that even a reasonable person may make a mistake under difficult circumstances.

Explain why and how the courts have limited the defence of voluntary assumption of risk.

Voluntary assumption of risk applies if the plaintiff freely agreed to accept a risk of injury. If it applies the plaintiff cannot recover any damages. The defendant has to prove that the plaintiff expressly or implicitly agreed to a crept both the physical and the legal risk of injury. The last part of that test is not satisfied unless the plaintiff agreed to give up the right to sue the defendant for negligence.