Joe Hayden, a postal worker, is delivering a package during his regular rounds on a bright autumn morning to a house owned by Melvina Drumpf. Melvina left a rake on the front walkway that was partly covered by freshly fallen leaves. Joe trips on the rake and drops the package containing fireworks. Joe doesn't know the contents of the package but when he picks up the damaged package the fireworks explode, burning Joe's hand (his only injury), but Joe's ambition to become a concert pianist may never come true. The reworks also shot over a fence, bounced off a ladder, then hitting and destroying an antique garden gnome purchased yesterday by Jason Trudo. The garden gnome cost $5000. A Duty of Care Melvina could reasonably predict that Joe would be walking up her front walk. If she left the rake on the front walkway it is reasonably foreseeable that someone like Joe could be injured if he tripped on the rake There is no policy consideration to exclude this duty of care. in fact there are good reasons to impose the duty. since every homeowner should ensure that the walkway is safe for visitors and others like Joe. Breach of the Standard of Care A reasonable, prudent person demonstrating a standard of care considerably better than average, would conform to socially acceptable behaviour. Here it is not socially acceptable to leave a trip hazard such as rake on the front walkway, particularly if there is a probability that the rake could become covered with leaves. Since Melvina did not conform to this standard there is a breach of the standard of care. Causation If Melvina had not left the rake on the front walk, Joe would not have tripped on it. "But for" the breach of the standard of care by Melvina leaving the rake on the sidewalk, there would be no physical connection between the rake on the front walk and Joe's injury. The hazard is foreseeable and there is a predictable connection between the the conduct complained of and the loss by Joe even if the particulars of the extent of Joe's injury are not predictable. Melvina may not know there are fireworks in the package, or that they could explode if dropped or that Joe had ambitions as a concert pianist, but so long as the danger of injury is foreseeable then physical causation exists. However even if the particulars of the injury are not foreseeable such as loss of career options, Melvina as the tortfeasor is liable for the full extent of the losses because "we take our victims as we find them" (thin skull rule). An exception exists if Joe had a preexisting condition (such as arthritis) that would have eventually prevented Joe's ambition as a concert pianist. In this case Melvina is responsible for only the accelerated loss of his career options. By contrast, the destruction of Jason's garden gnome is not easily predicted. The loss is unusual (unintended exploding fireworks bouncing off a ladder hitting an unseen recent purchase in the neighbour's yard) and therefore even if there is a physical connection between Joe tripping and the destruction of the garden gnome. it is not likely that the court would find legal causation and Melvia would not be legally responsible for Jason's loss. Damages Joe's injury to his hand is a legally recognized physical loss causing him pain and suffering, requiring him to take time from work or other activities (such as piano lessons), 'Incur expenses for medications or physiotherapy and possibly thwarting his future career as a concert pianist. All are compensable by money payable by Melvina. However, Joe would have to prove that he had a high probability of becoming a concert pianist including the likely economic losses 'If he were to collect from Melvina for loss of his future concert income. The other damages such as prescriptions costs (special damages) or pain and suffering (general damages) are easier to prove and likely Melvina would be ordered by the Court to pay. Criterion 1 Assess if there is a brief, understandable description of a hazard. The hazard cannot be one described by the instructor or in the sample submission. Criterion 2 O No explanation or no submission, or the description is longer than 300 words (about one page). Hazard submitted, but it is identical to one described by the instructor in class, on the video, or in the sample submission. 0 Hazard submitted but it is unclear, or confusing, or does not constitute a hazard. 0 Brief, clear description of the hazard. The hazard is clearly analyzed by reference to the "A test." ("A" Duty of Care) The hazard analysis has a clear description of the duty of care owed by one person to the plaintiff. The analysis must use the reasonable foreseeability or proximity test. The analysis must describe who owes a duty to a foreseeable plaintiff. Higher marl-(s are given if a discussion of policy considerations negate the duty of care. 0 No explanation or no submission, or the description is longer than 300 words (about one page). 0 Duty of care is mentioned but submission is confusing, badly stated or incorrect. O Duty of care is described, who owes that duty and to whom it is owed, The duty of care is described including who owes the duty, to whom it is owed along with legal reasons why such duty is owed using the reasonable foreseeability (proximity) test stated in a convincing way. All of the above are included along with an analysis of any policy considerations as to why the duty may not be imposed. Criterion 3 The hazard is clearly analyzed by reference to the "B test." ("Breach of a Standard of Care") The hazard analysis has a clear description of the standard of care applicable IF a Duty of Care is owed. The analysis must use the reasonable person test. The analysis must describe whether or not the person was careful enough in the facts described Higher marks are given if a discussion of the context allows a flexible standard of care appropriate to the facts and the persons involved. 0 No explanation or no submission, or the description is longer than 300 words (about one page). 0 Standard of care is mentioned but submission is confusing or badly stated or incorrect. 0 Standard of care is described. how the standard is applicable in the hazard and how this helps the plaintiff. The standard of care is described, how the standard is applicable in the hazard and how this helps the plaintiff 0 along with legal reasons why such standard is applicable using the reasonable person test stated in a convincing way. All of the above are included along with an analysis of why a standard of care may vary depending on the context including whether a higher or lower standard may apply to the tortfeasor. Criterion 4 The hazard is clearly analyzed by reference to the "C test." ("Causation") The hazard analysis has a clear description of the Causation test applicable IF A Duty of Care is owed, AND IF there is a Breach of the applicable Standard of Care. The analysis must use physical causation test ("but for" the tortfeasor's negligence the harm would not have occured) AND refer back to reasonable foreseeability (proximity) test (the A test) to reinforce legal causation. The analysis must describe whether or not the person was careful enough in the facts described. Higher marks are given if there is a discussion of legal remoteness so that the harm is not reasonably foreseeable even if there is physical causation. O No explanation or no submission, or the description is longer than 300 words (about one page). 0 Causation is mentioned but submission is confusing or badly stated or incorrect. O Causation is described, how the "but for" test is applicable in the hazard and how this helps the plaintiff. Causation is described, how the "but for" test is applicable in the hazard and how this helps the plaintiff, AND the analysis applies the reasonable foreseeability test to reinforce legal causation. 0 All of the above but with excellent insight that is well written and clear. \fCriterion 5 The hazard is clearly analyzed by reference to the "D test." ("Damages") The hazard analysis has a clear description of the Damages test applicable IF A Duty of Care is owed, AND IF there is a Breach of the applicable Standard of Care AND IF there is an an analysis of the Causation test _ The analysis must describe how the plaintiff suffered an injury or loss (the "damages") that is recognized by the courts as being compensable. Higher marks are given if there is a discussion of how causation and damages are related, whether any aggravating principle applies such as the thin skull rule ("We take our victims as we find them") or mitigating principle applies such as the crumbling skull rule (We are not responsible for inevitable loss). 0 No explanation or no submission, or the description is longer than 300 words (about one page) 0 Damages in the form of loss or injury is described but submission is confusing or badly stated or incorrect. Damages are described, how the courts have recognized the particular loss or injury applicable in the described hazard and how this helps the plaintiff. Damages are described, how the legal tests for causation and damages are interrelated, and whether any aggravating or mitigating principles apply that may affect the outcome of the case. Criterion 6 Rate the overall quality of the submission. 0 Submission is overall confusing, or too long, or incorrect in all of the ABCD tests. 0 Submission has spelling or grammar mistakes that cause it to be confusing or unclear. 0 Submission is clear, brief and insightful. O The submission has brilliant insight and it might even change the way I look at the issues