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Name three factors that might reduce or eliminate the awarding of damages to a plaintiff by the courts.
- Contributory negligence
- voluntary assumption of risk
- signing an express agreement.
Contributory negligence and voluntary assumption of risk are defenses that attempt to prove what?
The plaintiff's actions should remove or reduce the liability of the defendant.
Success of the above noted defenses depend often on what three actions on the part of a business?
Educational, warning and contractual actions
What is the legal rationale behind these defenses?
The plaintiff's own actions limit the liability of the business.
What is the main difference between Canada and the United States with regards to voluntary assumption?
In the United States, voluntary assumption of risk can be a complete defence,
In Canada an explicit agreement concerning release is required.
What is contributory negligence?
Actions which were unreasonable and led to a plaintiff harming themselves
If contributory negligence is proved, in theory, who has the higher standard of care, the plaintiff or the defendant?
--In fact what really happens in regards to question #7?
Eqaul---The defendant is held to a harsher standard.
This is especially true if the defendant is seen as an expert. True or False?
Name three ways the plaintiff’s actions can contribute to the injuries.
- Contribute to the accident
- consist of self exposure to risk
- failure to take adequate precautions.
The last three paragraphs deal with Scurfield v. Cariboo Helicopter Skiing Ltd. The wife of the deceased appealed the original court award of $1,100,000.00. What happened in the appeal court?
Husband was held responsible. He knew the risks.
Who must prove voluntary assumption of risk?
pleaded and proved by the defendant
In Canada, what is the best way to defend voluntary assumption of risk?
Have clients sign an explicit written legal release.
Why is “release language” included in a waiver?
- In the case of litigation, the merits of the case will be based upon the language of the
- waiver, and not the acts of possible negligence.
Name three ways that voluntary assumption of risk can be proved.
In writing, in words, or in conduct/
Why are educational materials and safety talks important to give to a client?
- For two reasons.
- To minimize the risk to the client.
- To minimize the liability of
- the business.
Define the words expressly and implicitly.
Expressly: with specific intentions, for an express purpose.
- Implicitly: without doubt or
Most often in the adventure industry, when does an express agreement take effect
When a release form and/or waiver is signed.
What is an implied agreement and are the often successful as a defense?
- The conduct of both the business and the client serve to
- state that an agreement regarding the risks involved in the activity was in place.
- NO-These are not often successful.
The ability of a court to divide liability among those parties at fault.
Invent an example of apportionment.
- Rod suffers a nervous breakdown and sues his students as a result. The court finds that the
- students lack of punctuality and a basic grasp of the English language was a factor, but was
- nowhere near overshadowed by the fact that he repeatedly inflicted TICO and horribly annoying
- travel video hosts on his students. As such, the court finds that Rod is 98.7% at fault for his own
- spiral into madness.
At the end of the last sentence of the last paragraph, it says “(in this case, nuisance)”. What do you think it refers to?
Interruption of the right of quiet enjoyment.
Acting or experiencing through another person.
To what relationship is vicarious liability applied to?
The adventure industry employs huge numbers of contract employees. Give two reasons why.
To simplify and save operation costs, and to attempt to establish an arm's length relationship for the purposes of liability.
What is the difference between contract of service and contract for service?
- Contract of service-an employee is hired
- contract for service-independent contractor is hired.
What is a control test?
Used to determine whether an individual was an employee or an independent contractor.
What other questions might the court ask after applying a control test?
- Who owns the tools?
- Who stands to benefit?
- Whose business is it?
The third paragraph has an interesting point. So does the case named Scurfield v. Cariboo Helicopter Skiing Ltd. What definitive statement can you make about court decisions having read the material?
Court decisions are far more unpredictable than one would suspect
Does the statement “John Smith is a contract employee of my company” hold up in court?
No-Only if it passes the control test.
For what reasons can an operator refuse to supply accommodation?
- A person is perceived to be unruly,
- disorderly, unfit, or undesirable.
WHat recourse does an innkeeper have to recoup money from a non-paying guest?
They can place a lien on, and sell the property of, a gues who is unwilling to pay.
if a registered guest has a friend in the hotel room and this person is deemed undeirable, what can the hotel management do?
Evict the non-guest
Must a hotel keeper maintain a log of guests?
What types of money must a hotel keeper collect on behalf of the goverment.
Hotel tax, all related Federal and/or Provincial taxes.
When does the act apply?
When a client it taken into the Yukon Wilderness and any kind of payment is accepted for this service.
How often must an operator apply for a licences?
What must the operator have prior to applying?
Workers' compensation coverage for employees, public liability insurance, and valid first aid and CPR certification for all guides.
What must the operator prove when applying for renewal?
That they are adhering to leave no trace principles.
How does the act define no-trace travel?
Leave no more evidence of human activity than was there before arrival, pack out all unburned toilet paper and food, solid waste (unless properly buried), and use biodegradable soap.
What provinces/territories have travel agents type legislation?
British columbia, Alberta. Ontario, Quebec.
To what buiness does the travel agents act apply
Travel agents, wholesalers, and tour operators in the province of British Columbia
Someone who sells or arranges trips or tours for customers
A person or company that provides package holiday
A person or company that operates a tour
Give a synoptic or example of each of the 12 highlights of the act.
- have two years industry experince gained in past 5 years
- -resistrant must operate from commerical premises and not from residence.
- -must operate a consumer trust account at their financial institution.
- -There is an application and renewal fee.
-Must file a copy of their financial statements within 90 days of fiscal year end.
What does the activity centres( young persons safety) act 1995 do for guides?
Shifts liability to them.
What doe New Zealand no-fault legislation do?
Protects operators from legal or civil liability.
Great Britians legislation is considered reactionary and that of New Zealand proactive. What does this mean?
Great Britain's legislation was written in response to an incident, New Zealand's legislation was written in case incidents happen.
in your opinion, does the ontario liquir sales legisation differ from in the book?