2.3 - Breach of Duty Flashcards
Describe breach of duty and its relationship with damages
Definition - “Proximate Cause”
-a cause that, in a natural and continuous sequence unbroken by any new and independent event, produces an event and without which the event would not have happened
causal relationship between breach and damages
-for a victim to collect damages from a tortfeasor he or she must be able to show the court that it was in fact the breach of duty by the defendant that caused the damages being claimed
-in this regard, the ‘proximate cause’ rule is applied - in other words, there must exist an uninterrupted unfolding of events without the intervention of another main cause from the initial act to the conclusion
-the damages must be expressed in monetary terms
-most liability policies limit the type of damages recoverable in the insuring agreement to compensatory damages - which refers to money that will reimburse the plaintiff for the injury or loss actually suffered. Punitive or exemplary damages do not fall within the definition of compensatory damages under the typical liability policy and therefore are not covered.
-these traditionally have been divided into two categories:
- ‘Special damages’ compensate the victim for economic losses or expenses such as medical bills, damaged clothing, and income lost. Special damages compensate plaintiffs for expenses they have already incurred and expect to be incurred in future. Generally plaintiffs are expected to provide receipts or other supporting documentation for any such expenditures being claimed
- ‘General damages’ compensate the victim for non-economic, hard-to-quantify aspects of a claim. Such damages require the discretion of the claims handler, judge, or jury to determine by considering, among other factors, the pain and suffering of the injured party, loss of enjoyment of life, loss of companionship, and physical disfigurement
-awards for economic loss are common when physical injury to persons or property has occurred
-for example, income-earning property is damaged as a result of a negligent act, the owner could sue for loss of rental income (consequential economic loss)
-but for pure economic loss - losses that are purely financial without any physical injury - the law is more restrictive as far as recovering in a tort action for negligence
-for example - ‘1688782 Ontario Inc. v. Maple Leaf Foods Inc.’ the Supreme Court of Canada observed that “pure economic loss may be recoverable in certain circumstances, but there is no general right in tort protecting against the negligent or intentional infliction of pure economic loss”
-however, a professional who renders a service to protect or advance someone’s economic interests would be liable for any pure economic loss caused by the professional’s negligence
-there are also other circumstances where pure economic loss would be recoverable
Definition and info - Additional type of damage awarded “Nominal damages”
-minimal monetary damages awarded by a court when a legal wrong has occurred but limited or no actual loss has been suffered by the party pursuing the action
-these are awarded when the plaintiff has a right of action but has suffered no real loss. A nominal amount such as $1 may be awarded
-these tend to be awarded in libel, slander, or false arrest cases
Definition and info - Additional type of damage awarded “Punitive damages”
-damages in excess of those required to compensate the plaintiff for the wrong done, which are imposed in order to punish the defendant because of the particularly wanton or willful nature of his or her wrongdoing. Also called “exemplary damages”
-these are generally awarded, in addition to other damages, as punishment to the defendant where reckless or willful behaviour is a factor
-for example, an auto manufacturer becomes aware that a particular part is a serious safety hazard yet does not issue warning or take other positive action to deal with the problem, or a defendant persist in slandering the plaintiff even though the court ordered a stop to it
-Canadian civil courts do not generally award for punitive damages if the criminal justice system imposed a punishment based on the same incident, and they rarely do so when a criminal trial resulted in acquittal
Liability policies
-a liability policy does not respond to harm expected or intended from the standpoint of the insured,
-there are exceptions to this restriction. In circumstances where an insured is compelled to use force, reasonable force used to protect a person or property will not invalidate coverage on most standard policies
-policies of insurance are generally designed to shift risk of fortuitous events, that is, they are not meant to cover certainties
-for example, should a policyholder deliberately take steps that lead to an event, generally the consequences of such actions will not be covered
-the duty to defend that arises from typical liability policies complicates matters because it is not based on the actual acts or omissions committed by the insured but rather on the allegations made by the third party
-often the pleadings of a case assert various negligent deeds committed by the insured with at least one falling within the terms of indemnity provided in the policy
-coverage applicable under a liability policy may have to brought before the court to determine whether (1) the insurer must indemnify the policyholder for the damages awarded and also whether (2) the insurer owes the policyholder a defence under the policy
-the duty to defend is much broader than a duty to indemnify. The duty to defend is based on the pleadings and the allegations. If an allegation (whether proven or not) falls within coverage, there is a duty to defend
-in instances where there is a duty to defend, but not necessarily to indemnify, an insurer can proceed to defend the claim under a reservation of rights
Definition - “remoteness of damage”
-a legal test to determine the right to recovery based on the predictability of cause or circumstance. Also called “remote cause”
Foreseeability
-in addition to proximate cause, reasonable foreseeability is required for a finding of liability
-if a reasonable person could not foresee that the act would harm someone and the defendant went ahead with the act that did harm someone, the matter would be decided on the basis of what was foreseeable
-in some circumstances, comparatively minor negligence results in enormous damage to a peculiar chain of events.
-for many years, when damage resulted from a negligent act, the negligent party would be held responsible, even though a reasonable person could not have foreseen such dire consequences. This ruling was based on a decision of an English case, ‘Polemis and Furness Withy & Co. Ltd.’ and was later overruled in the “Wagon Mound” case, ‘Overseas Tankship Ltd. v. Morts Dock and Engineering Co.’
-circumstances similar to the preceding cases are referred to as remoteness of damage when pleading a defence
-for example, if a TP suffers catostrophoc injuries caused by a their driving a stolen car, can the owner of the stolen car be held liable? Was it foreseeable the injury to the TP? Supreme Court of Canada says no, as evidenced in the decision ‘Rankin (Rankin’s Garage & Sales) v. J.J.
-the test of foresight has been criticized. It has been raised that the test of foresight does not excuse courts from making difficult decisions based on whether the defendant, whose conduct falls below the standard of the community, should be relieved from paying for damages caused
