What work equates to the term "responsibility: as it is used in the insurance business?
What are three categories used to classify the way in which the law imposes liability?
Negligence, Nuisance & Breach of Contract.
What is a tort?
A tort is a civil worng or injury recongized under the law, other than a breach of contract, whereby an injusred party acquires the right to sue the defendant, usually for a court award in the form of compensation.
What is a negligence?
Finding that someone has committed a tort by negligently causing damage or injury to another. Common sense should govern your conduct so that you do not do anything that could forseeably cause damage or injury to others.
What is a private nuisance?
Is interference with a person's use and enjoyment of living area.
What is public nuisance?
Is interference involving the rights of many people. Only the Attorney General may bring an action for public nuisance.
What is a breach of contract?
When a party to a contract fails to honour the terms of a contract, that party is said to be in breach of contract.
Why does our system of civil justice impose responsilities on people?
This imposition is a natural deterrent to irresponsible behaviour in both personal and corporate acts. The courts judge each set of circumstances before them and attempt to compensate for the worngs by transfer of funds from one party to another.
Identify three-levels of government that enact laws.
Federal, Provincial & Municipal governments.
How does a liability policy prtect businesses?
It shields them from legal fees and judgments that could potentially lead to bankruptcy.
What types of rights are likely to be involved in civil lawsuits?
Individual rights, family relationships, estates, contracts and in fact any dispute which does not involve a crinimal or quasi-criminal act.
What is a quasi-crime?
Provincial statues specify duties an individual owes to society, for example legislation governing highways and motor vehicles sets speed limits and makes it an offence to exceed them. Speeding is not a crime but it is an offence. Offences of this type are generally referred to as a quasi-crime.
What is the difference between criminal law and civil law?
-Act against society prohibited by statute
-Guilt is determined by courts.
-Penalties fine / imprisonment
-Dispute between individuals or legal entities.
-Fault determined by courts.
Penalties - compensation for injured party.
Very briefly review the history of the legal system in Quebec.
Quebec courts are not bound by prior rulings or decisions but they tend to be effectively persuaded when arguments are supported by case law.
Civil Code of Quebec covers every area of the law.
What is the role of the court in civil matters?
Courts role is to interpret the law and settle disputes according to the rules set out in the code.
What types of law comprise the common law system?
Case Law precedent and Statute Law.
How are cases decided under the common law system?
Under the common law, the courts look upon cases that have already been decided for guidance on how to resolve cases currently in dispute.
How is a precedent set?
The court may include in its judgment of set of rules with attendant criteria in a logical argument in support of its decision.
What is the judicial hierachy in the common law provinces?
- Small Claims court for the smallest cases
- District/County courts for medium cases
- Provincial/Territorial Superior court for larger cases.
- Provincial Court of appeal
- Supreme court of Canada
- Federal Court System
How is Quebec affected by case law?
Quebec courts are not bound by prior rulings or decisions, they tend to be effectively persuaded when arguments are supported by case law.
Not every case can be tried in the Supreme Court of Canada. Explain why?
It would tie up the court system and they would not be able to hear more important cases of national importance or to establish a precdent on some point of law.
What three elements are required to be established to the satisfaction of the court for a laintiff to establish a casue of action in negligence against a wrongdoer?
A duty of care exists.
There was a breach of that duty.
The breach caused damage.
What case furnished the common law world with the definition of negligence?
Blyth v. Birmingham Water Works.
Failing to do what a reasonable person would do, or doing something a reasonable person would not do.
What is the common law duty of care?
How has a reasonable person been defined in Canada?
Mythical creature of the law whose conduct is the standard by which the courts measure the conduct of all other persons and find it to the proper or improper in particular circumstances as they may exist from time to time.
He is not extraordinary or unusual creature, superhuman,not required to display the highest skill of which anyone is capable, not a genius and not possess unusual powers of foresight.
He is a person of normal intellegence who makes prudence a guide to his conduct. He does nothing a prudent person would not do and does not omit to do anything that a prudent person would do.
How was neighbour defined in Donoghue v. Stevenson?
Persons who are so closely and directly affected by my act that I ought reasonable to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in questions.
Give an example of standard of care.
A brain surgeon would be expected to perform on a professional level in a similar way as other brain surgeons with similar experience and training.
In law, who is an occupier?
An occupier is the person who has immediate supervision and control of the premises and the power to admit and exclude the entry of others.
In common law, what duty is owed to strangers who do not enter a premises or land?
In common law, what duty is owed to owners and occupiers of adjoining properties?
What four categories of persons in common law might enter premises?
Trespasser, licensee, invitee and contractual entrant.
List the factors considered in Veinot v. Kerr-Addison Mines Ltd. to determine whether an occupier's duty to a trespasser has been breached.
Gravity of the probable injury
Likelihood of the probable injury
Character of the intrusion or trespass
Nature of the premises trespassed upon
Knowledge the occupier had or ought to have had of the likelihood of a trespasser's presence
cost to the occupier of preventing the harm.
How does allurement relate to an occupier's duty of care?
Property or premises that would tempt children to trespass by nature of their properties required occupiers to take greater steps to safeguard them. The duty to the child was raised to that of a licensee.
What is a licensee?
Is a person who enters upon land with the consent of the occupier.
What duty is owed to a licensee according to the common law?
An occupier has a duty to protect a licensee from known concealed traps or dangers.
What is an invitee?
Is a person who enters onto the premises with permission when the occupier has some financial or other material interest in the matter.
What duty is owed to a invitee by the occupier under the common law?
The occupier owes the greatest duty of care to an invitee. It is the occupiers duty to exercise reasonable care to prevent injury to such a person from unusual danger of which the occupier knows or ought to have known.
Give an example of contractual entrant.
What is the Good Samaritan doctrine?
Is a legal principle that provides a defense against torts for an attempted rescue by someone who voluntarily helps a victim in distress.
Which law take precedence when statule law and common law are both involved?
Statutes take precedence over common law.
What duty do landlords have to their tenants?
The obligations of landlords to their tenants are the subject of the landlord and tenants legislation in the common law provinces. For example, landlords have a duty to keep their premises in good repair.
What is the purpose of hold-harmless and indemnity provisions in a contract?
Hold-harmless and indemnity provisions are used together to transfer liability from where it would normally lie to someone else and to direct who shall pay for expenses related to defending an action or satisfying a judgement.
Under what three circumstances will parents be responsible for the negligent actions of their children?
Child was acting on the parents' express instructions, or under their authority.
Child was employed by the parent and acting with the scope of the employment.
Damage was caused by a dangerous thing or animal which parents allowed the child to control - such as a motor vehicle.
Why must bailees exercise a high standard of care with property entrusted to them?
What rules were developed to prove negligence in R. in Right of Canada v. Saskatchewan Wheat Pool?
The statute must have been breached.
The conduct which was a breach of the statute must also have caused the damage for which compensation is sought.
The statute must have been intended to prevent the damage which occurred.
The peson making the claim must be amoung the group which the statute was intended to protect.
How did the case of Polemis and Furness Withy & Co. Ltd. explain foreseeability and its consequences?
How did foreseeability develop in the Wagon Mount Case?
What concept similar to foreseeability is used as a defence against liability?
What is proximate cause?
There must exist an uninterrupted unfolding of events without the intervention of another main cause from the initial act to the conclusion.
What are compensatory damages?
Compensatory damages refer to money that will reimburse the plaintiff for the insury or loss actually suffered.
What are the two main categories of damages?
What factor is traditionally necessary for loss of profit to be recoverable?
Pure Economic Loss.
How are claims involving loss of production often valued?
What are nominal damages?
Nominal damages are awarded when the plaintiff has a right of action but has suffered no real loss.
What is another name for punitive damages and when might it be imposed?
Exemplary Damages - as punishment to the defendant where reckless or wilful behavious is a factor.
How is denial used as a defence to an action?
What is remoteness of damage and how can it be proven?