What is the test for negligence in the context of medical malpractice?

Saskatchewan, Canada


The following excerpt is from Matheson v. Patrick Construction Company, 1953 CanLII 178 (SK QB):

I prefer to accept the statement of Brett, M.R., in Heaven v. Pender (1883) 11 QBD 503, at 509, 52 LJQB 702, where he said: “Whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to the person or property of the other, a duty arises to use ordinary care and skill to avoid such injury.”

In my opinion the defendant followed the usual practice in placing planks and lighted lanterns to warn the public of the dangerous condition of the street, but the question remains whether the defendant was under a duty to maintain the warnings throughout the night, which would have necessitated the employment of a night watchman. The cases in which there was no inherent danger in an obstruction are not applicable. See Donovan v. Union Cartage Co. [1933] 2 KB 7, 102 LJKB 270.

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