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McInnes/Kerr/VanDuzer: Managing the Law: The Legal Aspects of Doing Business, Fourth Edition
Chapter 6: Negligence
31) Halle is considering creating a new accounting company. She is, however, concerned
about the possibility of incurring liability under the tort of negligence if she acts carelessly.
Restricting yourself to the possibility of liability for negligent statements, which of the
following statements is TRUE with respect to Halle's proposed business?
a. Under the tort of negligence, the same rules are applied in exactly the same way whether
an allegation of negligence arises in connection with a careless statement or a careless
action.
b. Canadian courts are guided by the fact that "deeds are more volatile than words."
c. Halle's concerns would fall under the tort of professional negligence, which is different
than the tort of negligence.
d. Canadian judges apply precisely the same approach whether careless words cause
physical injury or pure economic loss.
e. Canadian judges do not apply special rules if the defendant's careless statement led to the
plaintiff's physical injury.
32) Dinar has sued Alpha Inc under the tort of negligence. The court must decide whether
or not the company owed a duty of care to Dinar. Which of the following statements is
TRUE?
a. The judge will require proof that someone within the company actually realized, as a
matter of reasonable foreseeability, that someone might be hurt in the way that Dinar was
hurt.
b. If the relationship between Dinar and Alpha Inc. falls within a recognized category of the
duty of care, there is no need for the court to analyze the duty of care on a principled basis.
c. The judge will require proof that the accident that injured Dinar was an inevitable
outcome of the company's activities.
d. While policy considerations may affect the measure of damages, it cannot affect the
existence of a duty of care.
e. Dinar must sue a person associated with Alpha Inc, rather than suing the company itself.
McInnes/Kerr/VanDuzer: Managing the Law: The Legal Aspects of Doing Business, Fourth Edition
Chapter 6: Negligence
33) A Canadian court will determine the existence of a duty of care by examining the
factors of
a. reasonable foreseeability, proximity, and policy.
b. proximity and policy.
c. proximity, policy, and intention.
d. reasonable foreseeability, policy, and intention.
e. precedent and practicality.
34) Zoe was injured last New Year’s Eve in a traffic accident that was caused by Miles.
The accident would not have occurred if Miles had not been drunk. Because Miles has no
assets and is not worth suing, Zoe has instead sued Davis, who was in control of the
premises where Miles became drunk. The judge must determine whether or not Davis owed
a duty of care to Zoe. Which of the following statements is TRUE?
a. A duty is less likely to be imposed if, without Davis's knowledge, Zoe also had been
drinking alcohol immediately before the accident.
b. A duty is less likely to be imposed if Davis knew, on the basis of past experience, that
Miles was likely to drive himself home after becoming drunk.
c. A duty of care is more likely to be imposed if liability in this case is likely to open the
floodgates to litigation against private citizens who host informal parties in their own
homes.
d. A duty is less likely to be imposed if the employee at Davis's tavern, who served alcohol
to Miles, has liability insurance.
e. A duty of care is more likely to be imposed if Davis owned a commercial tavern where
Miles became drunk.
McInnes/Kerr/VanDuzer: Managing the Law: The Legal Aspects of Doing Business, Fourth Edition
Chapter 6: Negligence
35) Nelson has sued Shaniqua under the tort of negligence. A duty of care is most likely to
be recognized by a court if
a. Nelson was injured by Shaniqua's carelessness while she carried him during pregnancy.
b. Nelson suffered a pure economic loss as a result of relying upon a financial statement
that Shaniqua had prepared for private use by another person.
c. Nelson was injured by a driver who had become obviously intoxicated while drinking to
excess at Shaniqua's tavern.
d. Nelson lost his entire retirement fund because Shaniqua, who had been appointed by the
government to regulate investment brokers, had carelessly failed to notice that Nelson's
broker was dishonest and as a government regulator Shaniqua categorically owed a duty of
care to Nelson.
e. Nelson suffered his injuries mostly because Shaniqua, who was a complete stranger at
the relevant time, refused to take life threatening steps to herself, to rescue him from a
danger that Nelson had created.
36) Which of the following statements is TRUE with respect to the test that Canadian
judges apply to determine the existence of a duty of care?
a. Policy concerns usually relate to the relationship between the parties.
b. Proximity concerns usually relate to the effect that a duty of care would have on society
generally.
c. Canadian judges recently switched from a two-part test to a three-part test.
d. The fear of opening the floodgates is usually addressed under the heading of reasonable
foreseeability.
e. The fear of interfering with political decisions is usually addressed under the heading of
proximity.
McInnes/Kerr/VanDuzer: Managing the Law: The Legal Aspects of Doing Business, Fourth Edition
Chapter 6: Negligence
37) Arsenio was injured by a product that had been manufactured by Magic Enterprises Inc.
Which of the following statements is TRUE with respect to Arsenio's claim against the
company for product liability?
a. Because liability for defective products in Canada is strict, Arsenio need not prove that
Magic acted carelessly
b. It will be easier for Arsenio to win in his claim for product liability if his claim is based
on an allegation of careless manufacture, rather than careless design.
c. If Arsenio's injury occurred after he used the company's product in an improper way,
there is no chance that the company will be held liable.
d. The learned intermediary rule will apply if Arsenio uses a lawyer to bring his claim
against the company.
e. The company may be held liable in contract, but never in tort, if Arsenio bought the
harmful product directly from the company.
38) Sarah sued Jerry and Tom in negligence. A court held that Jerry and Tom were jointly
and severally liable. This means that
a. Jerry and Tom must have acted together to create a single danger.
b. Sarah must collect her damages from assets that Jerry and Tom own together.
c. Sarah must have suffered at least two distinct injuries.
d. Sarah must collect half of her damages from Jerry and the other half from Tom.
e. Sarah is entitled to collect all of her damages from Tom, even if Jerry had acted with
greater carelessness in causing her injuries.
39) Which of the following statements is TRUE with respect to the standard of care that is
applied to professionals?
McInnes/Kerr/VanDuzer: Managing the Law: The Legal Aspects of Doing Business, Fourth Edition
Chapter 6: Negligence
a. More than usual is expected of experienced professionals and less than usual is expected
of beginners.
b. A professional may be held liable despite acting in compliance with an approved
practice.
c. An error of judgment always constitutes a breach of the standard of care.
d. A judge will assess a professional's conduct in comparison to the "best practices" that
exist within a profession at the time of trial.
e. Because there is no separate tort of breach of a statutory duty, a court cannot consider the
effect of a statute when it formulates the standard of care.
40) Kirsten recently went through breast implant surgery. As a result of a rare occurrence,
one of the implants ruptured and leaked harmful fluid into her body. Kirsten has sued the
manufacturer of the implant under the tort of negligence. That manufacturer
a. will not be held liable unless the implant was carelessly designed.
b. might not be held liable if it issued a warning of the relevant risk to Kirsten's physician,
even if it did not warn Kirsten herself.
c. can escape liability under the learned intermediary rule if it can prove that Kirsten could
have discovered the risk if she had done sufficient research on the internet.
d. will not be held liable to Kirsten unless she personally paid the manufacturer for the
implant.
e. is subject to strict liability because its products are so dangerous.
41) Xander believes that the CEO of his company, Trish, has been negligent, breaching her
duty of care to the shareholders. As the company’s accountant, he has noticed that Trish
gives him records that seem incomplete. After confronting her, Xander finds out that she
didn’t know about any incomplete records, but that it might be because she just throws out
McInnes/Kerr/VanDuzer: Managing the Law: The Legal Aspects of Doing Business, Fourth Edition
Chapter 6: Negligence
transactions that are less than $200 because she thinks it doesn’t really affect anything.
Which of the following statements is true?
a. The court will not be able to determine if there is a duty of care unless the case falls into
one of the traditional categories.
b. If there has not been a decision, the court will look at reasonable foreseeability,
proximity, and policy to determine if there is a duty of care.
c. There is no case for negligence, but there is one for the tort of deceit.
d. This would not be negligence because Donoghue v Stevenson determined that negligence
could only occur between a manufacturer and their customers.
e. There is no case for negligence because Trish is right, $200 transactions won’t affect
anything.
42) Trine is a judge deciding a negligence case. In the case, the defendant says that they
had a commercial relationship with the plaintiff and that she knew the plaintiff was relying
on her statements, but claims she had no idea that her actions would injure the plaintiff.
Trine is worried that this decision may prompt others to sue for the same thing. Which of
the following is false?
a. The suit does not pass the test of reasonable foreseeability if the defendant acted as a
reasonable person would.
b. The suit passes the test of proximity, but only if a direct causal connection is established.
c. The suit passes the test of policy, but only if it doesn’t interfere with political decisions.
d. If the action was a professional statement, the plaintiff can only recover economic losses.
e. If the defendant is part of a professional association, the plaintiff should also sue the
association.
43) Pishoy is a general practitioner of medicine and runs an office in a small town. A
patient of his, Rick, a 39-year-old, has recently been diagnosed with late stage colon cancer.
Pishoy had told Rick he would be doing a colonoscopy when he turned 40, as is the
standard. Rick is now suing Pishoy for negligence, claiming that he breached his
professional standard of care. Which of the following is true?
McInnes/Kerr/VanDuzer: Managing the Law: The Legal Aspects of Doing Business, Fourth Edition
Chapter 6: Negligence
a. Rick will probably win the case because Pishoy did not act as a reasonable professional
would act.
b. Rick will probably win the case because any reasonable person would be able to detect
late stage cancer.
c. Rick will probably win the case because Pishoy could be considered a specialist and
therefore has a higher standard of care.
d. Pishoy will be absolved of any negligence if he admits that he didn’t actually pass
medical school.
e. Rick will probably not win the case because Pishoy acted as a reasonable general
practitioner would have acted.
44) Rita is a construction worker. She is using a pneumatic lift owned by her company. The
lift is defective and often suddenly and violently stops. When this happens to her, Rita is
flung off the lift and breaks her collarbone. Her coworkers tell her she has to be more
careful next time, because sometimes that just happens with that machine. Rita should
a. listen to her coworkers and ensure she is always holding on tightly.
b. sue the manufacturer for negligence; the lift should have had a warning of sudden stops.
c. sue the manufacturer for negligence; the lift was obviously improperly designed.
d. sue the manufacturer for negligence; the defective lift was carelessly manufactured.
e. sue her coworkers for negligence; they had a standard of care to warn her.
45) Uli went to Donnie’s house party with the intention of getting drunk, so he brought
alcohol with him. Upon arriving, he realized Donnie was supplying free drinks, so he didn’t
have to drink the alcohol he brought. On his last drink of the night, Walter drugs his drink.
As he is leaving, Uli falls down a set of stairs. Uli feels that Donnie and Walter are both
liable for causing him to fall down the stairs. Which of the following is true?
a. Uli is correct. Donnie is liable for supplying him with alcohol and Walter is liable for
drugging his drink.
b. Only Donnie is liable because the but-for test will prove that he would have fallen down
the stairs because of the alcohol even if his drink weren’t spiked.
McInnes/Kerr/VanDuzer: Managing the Law: The Legal Aspects of Doing Business, Fourth Edition
Chapter 6: Negligence
c. Only Walter is liable because the spiking of the drink is the most directly causal action.
d. Neither are liable because Uli had the intention to be drunk, so the result would have
been the same.
e. Donnie is only 30% liable and Walter is 70% liable because of joint and severable
liability.
46) Xiang was tripped by Saorise and won a court case for the tort of negligence. She had
to be on crutches for one month because of the injury. During that time, a car hit Xiang
because she couldn’t get out of the way fast enough and she was mugged and unable to
chase the perpetrator because of her crutches. Xiang sues Saorise for an intervening act.
The court would likely find
a. Saorise is liable for the car accident because of the thin skull doctrine.
b. Soarise is not liable for the mugging because being on crutches did not increase Xiang’s
chances of being mugged.
c. Saorise is not liable for the car accident because the crutches did not increase Xiang’s
risk.
d. that both actions are too remote for Saorise to be held liable.
e. Saorise is liable for the mugging because of the but-for test.
47) Remy suggests that he and his friend Quentin snowboard down a mountain in tandem.
Quentin initially refuses, but eventually begrudgingly agrees. During the run, they fall and
Quentin suffers an injury. He is now suing Remy for negligence. Which of the following is
Remy’s best defense?
a. Contributory negligence because Quentin stepped into a dangerous situation
b. Volenti because Quentin expressly agreed to accept the physical and legal risk
c. Illegality because it is illegal to ride snowboards in tandem
d. Contributory negligence because Quentin contributed to the damage caused by the
accident
e. Remy has no defense, he should settle before court
McInnes/Kerr/VanDuzer: Managing the Law: The Legal Aspects of Doing Business, Fourth Edition
Chapter 6: Negligence
48) Patrick asks Keanu to participate in a bank robbery. Before the robbery, he gets Keanu
to sign an exclusion clause stating that Patrick is not liable for any injury during the
robbery. Keanu agrees because Patrick is a professional bank robber. Keanu is shot during
the robbery and sues Patrick for negligence. Which of the following is Patrick’s best
defense?
a. Contributory negligence because Keanu stepped into a dangerous situation
b. Voluntary assumption of risk because he signed an exclusion clause
c. Illegality because it is illegal to rob a bank
d. Any of these would work as complete defenses
e. Any of these would work as defenses, but only volenti and illegality are complete
defenses
Essay Questions
1) Identify and briefly explain the primary social tension that the cause of action in
negligence attempts to resolve. How is the flexibility of the action in negligence related to
the resolution of that tension?
McInnes/Kerr/VanDuzer: Managing the Law: The Legal Aspects of Doing Business, Fourth Edition
Chapter 6: Negligence
2) Gamma Corp carelessly allowed its factory to spew toxic chemicals into the
environment. Gamma Corp's factory is located near a park. Mary often visited that park
while she was pregnant with Antonio. Antonio was born with a severe disability. That
disability was caused by one of two factors: the toxic chemicals that Gamma Corp's factory
emitted or the cigarettes that Mary smoked during her pregnancy. Mary chose to chain-
smoke during her pregnancy despite knowing the risks that her behaviour presented for her
unborn child. Can Antonio recover compensatory damages if the evidence proves that his
disability was caused by Gamma Corp? Can he recover compensatory damages if the
evidence proves that his disability was caused by his mother's smoking? Provide the best
explanation for your answer.
3) Leia was injured in a car accident with Hakim. At trial, Hakim admits that he crashed
into Leia's vehicle, but he insists that he should not be held liable because, at the time of the
McInnes/Kerr/VanDuzer: Managing the Law: The Legal Aspects of Doing Business, Fourth Edition
Chapter 6: Negligence
accident, he was suffering from a form of mental illness that deprived him of control over
his actions. The expert evidence supports Hakim's version of events, but it also reveals that
Hakim is now fully cured of his illness. Will Hakim be held liable to Leia?
4) Explain the two-fold significance of the decision in Donoghue v Stevenson.
McInnes/Kerr/VanDuzer: Managing the Law: The Legal Aspects of Doing Business, Fourth Edition
Chapter 6: Negligence
5) Jinyan wants to start a new internet service provider business. Before she does so,
however, she wants to ensure that she will be able to afford liability insurance premiums. In
that regard, she wants to know how the test of reasonable foreseeability affects the issue of
risk management. She has heard conflicting statements. Some suggest that the concept of
reasonable foreseeability protects business people from liability. Others suggest that the
same concept can unexpectedly lead to the imposition of liability. Which statement is true?
Explain your answer.
6) Identify and briefly explain three ways in which careless statements are significantly
different, in a legal sense, than careless actions.
McInnes/Kerr/VanDuzer: Managing the Law: The Legal Aspects of Doing Business, Fourth Edition
Chapter 6: Negligence
7) Under the terms of a contract, Abigail provided accounting services to Theta Inc. Those
services culminated in the production of a financial statement. Unfortunately, Abigail did
her job carelessly and the financial statement was inaccurate. Raekwon, who is a
shareholder in Theta Inc, suffered a loss after relying upon the financial statements that
Abigail prepared. He has sued her for negligence. Identify and briefly explain the factors
that a court will consider in deciding whether or not Abigail owed Raekwon a duty of care.
McInnes/Kerr/VanDuzer: Managing the Law: The Legal Aspects of Doing Business, Fourth Edition
Chapter 6: Negligence
8) Shamar works as a financial adviser. He was recently asked by the Upsilon Corp to
produce a report. Because Upsilon Corp is involved in a highly complex and highly volatile
field, Shamar is very concerned about making a mistake and being held liable to the
company. The company is sympathetic to that concern, and is therefore willing to make
some concessions in its contract with Shamar. Assuming that he wants to perform the
project, what should he do, from a risk management standpoint, to avoid the possibility of
liability to the company. Provide the single best answer to that question.
McInnes/Kerr/VanDuzer: Managing the Law: The Legal Aspects of Doing Business, Fourth Edition
Chapter 6: Negligence
9) Tyrek has sued Cassandra for negligence. The only issue at trial is whether or not
Cassandra breached the standard of care. The parties agree that the court must use the
reasonable person test, but they cannot agree on the identification of the reasonable person.
Is it Tyrek? Cassandra? The judge? Explain your answer and indicate why the law provides
that answer.
10) Tallal sued Fiona for negligence. She admits that she owed him a duty of care and that
she caused his injury. She insists, however, that she cannot be held liable because she did
McInnes/Kerr/VanDuzer: Managing the Law: The Legal Aspects of Doing Business, Fourth Edition
Chapter 6: Negligence
not breach the standard of care. While she committed an act that would, in normal
circumstances, be considered clearly careless, she did so while suffering from a severe
mental illness. Is it possible for Fiona to escape liability on that basis? Explain your answer.
11) Samir has sued Beatrice for the negligent performance of a professional service. How is
Beatrice's status as a professional person relevant to the standard of care? Would it matter if
she was a novice at the time of the accident? What if she was an expert? What if she falsely
claimed to be an expert? Explain your answers.
McInnes/Kerr/VanDuzer: Managing the Law: The Legal Aspects of Doing Business, Fourth Edition
Chapter 6: Negligence
12) Indira has informed the Bogus Corp that she intends to sue it for product liability, but
she has not yet provided details of her claim. The company is curious as to whether she is
claiming negligent manufacture or negligent design. What is the factual difference between
those two possibilities? What is the legal difference? Which type of claim do courts
approach more carefully?
13) "Liability in negligence is an all-or-nothing proposition." Is that statement true? How is
that statement related to the concept of a "balance of probabilities"? Explain your answers.
McInnes/Kerr/VanDuzer: Managing the Law: The Legal Aspects of Doing Business, Fourth Edition
Chapter 6: Negligence
14) Thalia has sued Pi Inc for negligence. The company admits liability, but can prove that
most of Thalia's damages stemmed from the fact that she could not financially afford to
mitigate her losses in a timely manner. The company therefore insists that it should not be
held liable for those losses. How would a modern court resolve that issue?
McInnes/Kerr/VanDuzer: Managing the Law: The Legal Aspects of Doing Business, Fourth Edition
Chapter 6: Negligence
15) What is the difference between a complete defence and an apportionment defence?
Provide an example of each. Explain your answer.
