 Welcome to Negligence Torts and Professional Liability, Module 3B Part D. In this part, we will look at standard of care. In examining standard of care, we will look at the reasonable person's standard. We'll also look at the higher standard of care that is applicable to professionals to determine professional negligence and also product liability. Whether or not a particular person is liable for negligence, we have to show or the plaintiff has to show that the defendant breached the applicable standard of care. So the question that we need to consider is, was the defendant careful enough? Or an even more specific question that a court would look at would be, what would a reasonable person do in similar circumstances? So that begs the question, who is this reasonable person? We don't know who exactly this person is. It could be male, it could be female. We don't know what their experience or what their upbringing is. But let's find out some clues that courts have given us as to who is the reasonable person. Now to be clear, the reasonable person is not the defendant. We are not asking whether or not the defendant did their best in that particular situation when the accident happened. The legal test that we apply here for standard of care is what's called an objective test and not a subjective test. We're not asking subjectively whether or not the actual person did their best in avoiding or doing their job to avoid the accident. We are asking whether or not a reasonable person would have caused the same accident. Now in determining what a reasonable person would do in similar circumstances, courts have given us some clues or guidance. So courts have said that a reasonable person takes precautions against foreseeable risks, but not necessarily precautions against every conceivable danger. Another clue that we have from previous court decisions is that a reasonable person considers the likelihood of harm and the potential severity of harm. So a reasonable person would logically sit down and think, how likely is something wrong going to happen and how severe will be the consequences. Another thing that a reasonable person would do is that a reasonable person would adopt affordable precautions to prevent against mishap or accidents or injury. So a reasonable person does consider the cost. So there is a cost benefit analysis that a reasonable person would apply. A reasonable person takes risks where social utility is involved. So a reasonable person would take greater risk if it involves an emergency kind of situation where the reasonable person is trying to save someone's life, for example. And related to that is also the sudden peril doctrine which allows a reasonable person to make mistakes where there are difficult circumstances, especially in an emergency situation. So we cut a person more slack in an emergency situation. If the person being sued for negligence happens to be a professional such as a lawyer, a doctor, accountant, or an engineer, for example, then we don't apply the general standard of a reasonable person because a reasonable person does not have the expertise or training of any of those professionals. So we apply a higher standard to professionals. The question that we ask is, what would a reasonably competent and experienced professional do in similar circumstances? So who is this reasonable professional? So this reasonable professional is reasonably competent and reasonably experienced. And if whatever level of expertise is being claimed by the professional, if they claim to be a doctor, we hold them to the standard of a reasonable doctor. Even if that person is either exaggerating or just plain lying about being a doctor. If that's what they say they are, we hold them to the standard of a reasonably competent and experienced doctor. Now if a professional holds himself out to be a specialist, so if a doctor says they are a heart specialist or a cardiologist, then they are held to the higher standard of a reasonably competent and experienced cardiologist, not the standard of a reasonable general practitioner. If we have an inexperienced professional, let's say a lawyer fresh out of law school, we don't cut that person any slack for being inexperienced. We still hold them to the higher standard of being reasonably competent and reasonably experienced. Now professionals are allowed to make errors of judgment and not be held liable for them. So there is a difference between an error of judgment and negligence. An error of judgment is where a reasonable professional in that same situation might have made the same decision. So that would be considered an error of judgment for which there is no liability under negligence. Now in determining whether someone was reasonably competent and experienced in a particular situation, we have to base it on the information that's reasonably available at the time of the accident. It's always easy to look at the information that comes to light after an accident to assess whether or not someone was negligent or not. That would be an unfair way of assessing negligence. We have to base it on the information that's reasonably available at the time of the accident. If a professional happens to follow approved practice and still the accident happened or someone gets hurt, then usually there's no liability for having followed that standard professional practice. So that standard professional practice is often set by the governing body for a particular profession. As well, sometimes under particular statutes, there are certain requirements that have to be met by a professional. If a professional happens to comply with that statutory standard, that is at least a significant factor in determining that the professional exercised reasonable care and therefore is not liable or has not breached the standard of care. Let's now have a look at this quick quiz question. Please pause this video at this time so that you can consider this question and also look at a previous slide. China acted as Evan's accountant. In the course of her professional duties, she made a mistake that caused Evan to lose $100,000. Evan has sued China for negligence. She claims, however, that she did not breach the standard of care. China can avoid liability by proving that. So we need to determine what is the appropriate standard of care that applied to China as an accountant? The answer is C. A reasonably competent and experienced accountant would have made the same mistake. So the standard of care that applied to China was that of a reasonably competent and experienced accountant. If a court finds that a reasonably competent and experienced accountant would have made the same mistake, then there would be no liability. When someone is injured or incurred a loss because of a defective manufactured product, how do we determine whether or not the manufacturer has either breached or met its standard of care in manufacturing that product? There are two different approaches. The American approach and a Canadian approach. The American approach takes or applies strict liability, which means that the courts in the U.S. hold the manufacturer liable for any defects causing injury. And there's no need to show that the manufacturer was negligent. If you show that the injury was caused by a defect in the product, that's enough to hold the manufacturer liable in the U.S. In Canada, however, we need to show negligence. So the manufacturer is liable only for defects arising from its carelessness. The plaintiff has the obligation to prove that the manufacturer was negligent. So that means that in Canada, it's much more difficult to hold a manufacturer liable for a defective product than it is in the U.S. The Canadian approach of requiring proof of negligence on the part of the manufacturer is definitely tilted in favor of manufacturers. However, whether or not the U.S. strict liability approach is better or not is a matter of debate. In terms of the advantages or the pros of the strict liability approach, firstly, under that approach, it better ensures that consumers are compensated for injuries. And it also encourages manufacturers to develop safer products. And the losses for injuries are more easily sustained by the manufacturer who profit it from selling the defective products instead of putting that full burden on individual injured consumers. The cons or disadvantages of the strict liability approach are that it's unfair to require a manufacturer to pay for an injury even though it has acted with reasonable care. The second con is that it increases the number of lawsuits that are started against manufacturers, especially class action lawsuits. And it also increases the cost of liability insurance that manufacturers may want to purchase. And related to that is that it increases the cost of the products because the cost of any injuries arising from a product, whether they are caused negligently or not, will be sustained by the manufacturer and the manufacturer will build in those costs in the prices of their products. So here in Canada, if you are injured from using a product and you want to sue the manufacturer, you will need to prove that that manufacturer was negligent, or in other words, that the manufacturer breached their standard of care. So what are the different ways that a manufacturer can be negligent? So that negligence can be in the manufacturing of the product. The most obvious example is the case of Donahue and Stevenson, which we looked at earlier. In that manufacturing process, in that factory where they manufactured the ginger beer that made Donahue drink, there was a flaw in that process which allowed a snail to crawl into that bottle of ginger beer. A manufacturer can be negligent also due to careless design. If it's a design that caused the injury, the manufacturer can be sued for careless design. A notorious example of this is the Ford Pinto that was sold in the 1970s. It was designed with a gas tank that ruptured very easily whenever the car was hit from behind and caused the whole car to burst into flames. It actually did cause the death or serious injury to thousands of people. A third way that a manufacturer can be negligent is due to failing to warn of reasonable risks arising from the use of the product. So this obligation is usually satisfied in the form of warning labels that are provided by the manufacturer. These warning labels will warn of risks regarding intended and unintended uses, but they all are reasonably foreseeable uses. Here are some examples of real warning labels. If you look very closely, I won't read them out to you, just have a close look. You'll see some of these uses that are being worn against some of them may be intended and some of them are really unintended, whether they're reasonably foreseeable, that's debatable. Now, once a product is out in the market, there may be a danger that arises from the use that was not foreseen. Once that danger is discovered and the manufacturer becomes aware of it, they have an obligation to take reasonable steps to warn consumers of that danger and even recall the product altogether. Who has this obligation to provide a warning? It can be the seller, the retailer, distributor, or even the installer. There's something called the learner intermediary rule. This applies when a product is sold not by the manufacturer to the consumer, but by a professional to the consumer. An example of this would be the sale of breast implants. You would never get a breast implant directly from the manufacturer. You would get it from the plastic surgeon that performs the surgery to install the implants. The obligation to warn the consumer in that case where there is a learned intermediary, there's a highly skilled person who is the plastic surgeon in this case, that learned intermediary has the obligation to warn the consumer, not the manufacturer. The manufacturer's obligation is to warn the professional. Let's now do this quick quiz question. Please pause the video at this time so that you have a moment to read through the question and try to choose the best answer. The answer is C, but let's go through each of the choices and explain why each of them is either correct or incorrect. So A is incorrect. It says temple beats will be viable on the basis of strict liability for the manufacturer of a product that is so vital to a patient's health. So that's incorrect because strict liability is applicable in the U.S., not in Canada. Choice B says if David can prove that the pacemaker has caused his deterioration in health, he will win the case. That's also incorrect because what that describes is strict liability. Under a strict liability system, if you are able to prove that the product caused your injury or in this case caused his deterioration in health, that's enough to win the case without having to prove actual negligence. Choice C is the correct answer. It says temple beat will not be held liable unless the court accepts evidence that the pacemaker was carelessly designed manufacturer or there was a failure to warn. So that's the Canadian system, which is the need to prove negligence on the part of the manufacturer, which is temple beats. Negligence in the form of either careless design, careless manufacture, or a failure to warn of reasonable risks. D is also an incorrect answer. Temple beat cannot avoid liability if it warn the surgeon of the chance that the implantation of the device could do more harm than good in a patient with a badly deteriorated heart. So that's an incorrect answer because temple beat can avoid liability if it warn the surgeon. So that's the learned intermediary rule. The surgeon here is a learned intermediary. It's the surgeon that has the obligation to warn the consumer, not the manufacturer. The manufacturer's obligation is just to warn the professional, which in this case is the surgeon.