4. An Economic Analysis of the Standard of Care
- Hands Theorem: jury should attmept to measure three things: the magnitude of loss if an accident occurs, the probability of the accident occuring; and the burden of taking precautions that would avert it. If the product of th first two terms exceeds the burden of precautions, the failure to take those precautions is negligence.
5. Special Standards of Care
a) THE DISABLED
general principle: must be a capacity to understand nature of duty owed in order to be held liable - in order to be released from liabilty inabilty to understaind and appreciate must be due to disabilty
Buckley and TTC v Smith TPT Ltd [1946] - syphillitic truck drivver goes insane w/o warning and crashes into transport unit
test: not whether delusion existed, but whether delusion prevented D from understanding and appreciating duty which he was under
- note: physically handicapped are required to meet the standard of care of a reasonable person with a similar handicap
- what happens when nature of duty is understood, but but there is an inablity to act (ex undergoing an epileptic seizure)
b) CHILDREN
general principle: standard of care of child of like age, intelligence, and experience, however much heed is paid to peculiarities of childs experience
Joyal v Barsby (1965) - 6 year old runs onto busy road and is struck by semi- issue at appeal was child contributorily neg’t in stepping onto busyt highway?
- child 40% c.neg’t : trained in highway safety and had she looked wouldn’t have stepped onto road
- a child involved in a normally adult activity such as driving a car, hunting, or snowmobiling will be required to meet the standard of care excpected of a reasonable adult Ryan v Hicksson (1974) - waving snowmobile kids who got air
- a parent, guardsian or other supervisor will not be held vicariously liable when child commits a tort, but will be held liable if they have failed to control ormointor childs conduct - held to standard of reasonably parent of ordinary prudence LaPlante (Guardian ad litem of) v LaPlante -father held liable for letting 16 yr old son who just got his liscence drive in icy conditions with traffic at highway speed (Dennis and Emily’s Moot)
c) PROFFESSIONALS
- general principle: an error in judgement is not neg’ce, neg’ce will only be found where performance is not found to comply with ordianry procedure, or is such that reasonable practioner in simialr circs would find perofrmance to be substandard
White v Turner (1981) - ruching plasitc surgeon does a bad breast reduction that leads to deformity
-general practioners are excpected to excersie the standard of care of a reasonable, cmpetent general practioner. this includes knowing their limits and when to refer patients to a specialist Layden v Cope (1984)
- standard of care required of an intern is that of the reasonable intern, but residents are held to standard of qualified physician ( Fraser v Vancouver General Hospital)
-volunteers are expected to have skill and training required to perform their tasks adequately, this includes knowing when to refer
- individuals may be held to proffessional standard of care if they implicitly or explicity hold themselves out as having the skills of a proffessional
- lawyers will be held to the standard of a reasonably competent and diligent lawyer (Brenner v Gregory)
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