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xThe aggrieved party must show 3 factors to establish negligence action:1.The existence of a duty of care owed by the defendant to the plaintiff 2.A breach of the duty caused by the defendant failing to meet an acceptable standard of care and 3.An actual harm ensuing from the breach. xStandard of Care in Negligence Action:x“ The degree of care which a reasonably prudent person should exercise in the circumstances”.xFor example: if an industry was being accused it will be put against the industry practice and if / how much did they deviated from these practices. xVoluntary codes can be used. xIt is not an excuse if you are unfamiliar with the voluntary codes if they are industry norms.xFor the public this is a good thing for the industries who choose not to directly participate in the voluntary programs (free-riders).xSome voluntary codes can be used in the courts (standard of care test)against those who they do not directly apply to therefore it is best for these firms to comply with these voluntary programs.xVoluntary programs can also be a problem as the levels can be set to high and yet have no huge effect on the social or environmental issues. They can also be costly to implement and therefore drive small companies out of the market creating an indirect barrier into the entry of the marketplace.xVoluntary standards can also be set to high and therefore causing industries to get away with negligence and plaintiff to suffer. P.4-11: xVisp Construction v. Scepeter: where a pipe manufactured to meet Canadian Standards Associations (CSA). Plaintiff sued as they did the pipe was defective. The court rule that find more resources at oneclass.comfind more resources at oneclass.com
the defendant exercised its due diligence and that it was not unreasonable. xMeisel v. Tolko Industries Ltd: where construction workers feel through the roof that was constructed out of wood. Since the defendant followed National Lumber Grades Authority Standards + expert testimony the court found that he had exercised due diligence. xFollowing voluntary standards can help when proving due diligence. xFailing to follow ^ can be the plaintiff proof to negligence. oReed v. Mcdermind St Lawrence Ltd:where the defendant failed to follow Investment Dealers Association Standards, as he did not “know his client”. xBenton v. Tea Tree Plaza: where it was found that breaching voluntary standards or failure to follow does not establish negligence. xMurphy et al v. Atlantic speedy Propane Ltd: where the defendant installed a dryer that later caused a fire. He claimed that he was following standards but the courts found that “ the industry standards was unsafe… and that the defendant cannot hide behind industry practices.”xDepartment of Labor v. Waste Management N.Z Limited: where an employee died using a machine that was leased by the defendant (Garbage compactor machines crushed the user of the machine). The defendant said they were following standards.. American standards…x