Chapter 1 Flashcards
Primary role of Criminal Law
uses punitive sanctions as the means of enforcing its many rules. primary focus of this law is to punish the person(s) responsible for the crime (wrongs against society)
Primary role of Civil Law
body of law concerned with civil or private rights and remedies
Identify the kinds of wrongs failing within tort law for which compensation may be provided by the courts
Intentional torts
unintentional torts
A breach of contract may result in a civil action against an insured.
Provide an example of a “breach of contract.
failure, without legal excuse, to perform any promise which forms the whole or part of a contract
example: building contractor elects to quit a project before completing the work agreed to in a legal contract, legal action may be initiated by the owner for breach of contract
Identify the two main bodies of law relating to both criminal and civil matters.
Common Law
Statue Law
Outline the underlying principles which govern the administration of the common law
In ** law, the basic concept is that current court decisions must follow those made in cases having similar circumstances. This custom of standing by previous decisions is known as the rule of precedent.
Of the different kinds of tort damages awarded by the courts, which are most important in ensuring that victims are able to withstand the financial consequences of their losses? What purpose is served in the awarding of such damages?
compensatory damages are the most important in ensuring victims are able to withstand the financial consequences of the loss. Purpose are intended to compensate the injured party for the bodily injury or property damage sustained
Outline the underlying principles which govern the administration of statue law
Written law. Most effective form of law. Created by federal and provincial legislation and supersedes or amends the common law
When there is a breach of contract and the payment of damages is seen as inadequate for the circumstances, what other options are available to the courts in dealing with such breaches?
When their is a breach or failure to fulfill contractual obligations, the courts may rule in the following manner:
- provide for payment of damages to the injured party
- enforce specific performance of the terms of the contract
- grant an injunction prohibiting a party to the contract from performing certain acts, or ensuring a party to the contract performs certain acts
- permit rescission of the contract so as to return the parties substantially to their pre-contract positions
Negligence is one of the important torts affecting a business’s potential for a liability suit against it. Negligence must be proven. Identify the three conditions which must be present before the court will be satisfied that the tort of negligence has been committed.
The defendant owned the plaintiff a legal duty of care
The duty was breached as a result of the defendants negligence
The plaintiff suffered damages as a proximate result of the defendant’s negligence
The Doctrine of Strict Liability changes the way in which one’s responsibility for a wrong is viewed by the court. Discuss.
The doctorine of strict liability is based on the assumption that certain activities are so hazardous that, in the event of injury or damage arising out of them, the person conducting the activity shall be presumed to be legally liable
Although brokers are often involved in the interpretation of insurance contracts, what advice should be given to the client who asks specific questions concerning matters of law?
Clients should be referred to a qualified legal practitioner
The common duty required of Occupiers’ Liability Acts focuses on the duty of care to be provided by occupiers to those who actually enter onto their premises. Discuss the extent of the duty owed.
take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for which he is invited or permitted by the occupier to be there or is permitted by law to be there.
Occupiers may be held financially responsible for bodily injury or property damages to third parties. What factor is critical when determining if one is an occupier?
The status of the “occupier” is not dependent on ownership of the premises, but rather is based on who has control over the premises
The liability of occupiers is limited in certain instances. Discuss the law respecting:
The liability of a tenant or building owner (principal) when injury or damage to others is caused by an independent contractor performing work on the premises;
- A tenant or owner will not be liable for the negligence of an independent contractor if it can be shown: that reasonable care was exercised in the selection of the independent contractor, it was reasonable that the work the independent contractor was engaged to do should have been undertaken
- The tenant or owner will share in any liability arising out of the negligence of an independent contractor: when the work being contracted is inherently dangerous, when injury or damage results from the contractor’s use of defective fixtures, machinery or equipment supplied by the prinicipal, when the principal controls the manner in which the work is being done.
The liability of occupiers is limited in certain instances. Discuss the law respecting:
The liability of a landlord for injuries caused to a tenant and others on the premises.
Single Occupancy buildings - for injuries to tenants or their customers caused by the unsafe conditions of the premises
Exceptions: Landlord fails to notify tenants of dangerous conditions they were aware of, or ought to have been aware of, that existed at the time the lease was made, and, if landlord covenants to make repairs and fails to so so after receiving notice of the danger
Multiple Occupancy Buildings - Landlord is responsible to the tenants and others only for the condition of areas common to all occupancies
A products liability claim cannot originate on the premises of the person supplying the defective product. What conditions must have been present for a products liability suit to be successful?
A products liability claim can arise only when it is shown that the injury or damage:
- occurred away from the premises of the seller; and
- occurred after the seller had clearly relinquished possession of the defective product
Identify the parties having the right to claim damages for injuries sustained through the use of the seller’s product when the action alleges:
Breach of contract.
Only the person who actually purchased the defective product and who was injured by it is entitled to sue for breach of contract
Identify the parties having the right to claim damages for injuries sustained through the use of the seller’s product when the action alleges:
Tort of negligence.
All users of defective products are entitled to sue manufacturers for their negligence when the use of such products results in injury or damage
What effect did the 1932 decision re:
Donaghue v. Stevenson have on the way in which the law viewed the responsibility of manufacturers for their products?
As a result of this decision, the responsibility of manufacturers for their negligence was extended to the ultimate user of their products (manufacturers are liable in tort for damages caused when their products are most likely to be used without immediate examination)
State three duties of manufacturers
safe design
safe manufacture, construction, assembly, and packaging
Provide instructions, if needed
State two duties of sellers.
- sellers are considered to be experts when it comes to the ingredients and properties of the articles they sell
- sellers are expected to tell the truth about their products
Explain when an operation is considered to be completed
An operation is considered to be completed when it can be shown that the injury or damage giving rise to the claim:
- occurred away from the premises of the person(s) doing the work
- that such work has been completed or abandoned
Provide two examples of a contingent liability exposure
A contingent liability exposure can exist when:
1: work is done by persons who are not employees (e.g. general contractor might be sued for fault work performed by a subcontractor)
2: when employees work in another province for longer periods than are permitted by the Workers Compensation Plan (e.g., injured employee may sue employer for damages
Trespass
unlawful interference with ones’ person, property or rights
Nuisance
everything that endangers life or health, gives offense to senses, violates the laws of decency, or obstructs reasonable and comfortable use of the property
Occupier
a person who has immediate supervision and control of the premises and the power to admit and exclude the entry of others is an occupier
Strict Liability
Doctorine based on the assumption that certain activities are so hazardous that, in the event of injury or damage arising out of them, the person conducting the activity shall be presumed to be legally liable
Negligence
The failure to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent man would not do
Doctrine of Negligence
rests on the duty of all persons to exercise due care in their conduct towards others from which injury may result
Nominal damages
Damages are awared when there is no substantial loss or injury to be compensated for, but one is seeking the court award, for no other reason than to validate the plaintiffs claim when a question of principal is at stake
Exemplary or punitive damages
damages which are intended to punish defendants for their behaviour or to make an example of them
Special Damages
These are the damages which can be measured as to amount and are often referred to as out of pocket expenses. These may include: doctor, dentists and specialist charges
General damages
These are the damages which cannot be exactly determined in monetary terms, but reflect an amount that the court believes necessary to compensate the aggrieved party fairly
Compensatory damages
are intended to compensate the injured party for the bodily injury or property damage sustained
Damages
compensation in money for the loss or damage suffered
Statue law
Written law
Created by federal and provincial legislation and supersedes or amends the common law
Rule of precedent
The custom of standing by previous decisions (those made in similar circumstances)
Breach of contract
Failure, without legal excuse, to perform any promise which forms the whole or part of a contract
Intentional Torts
the wrongs first recognized by the law as a basis for awarding compensation were those that were intentional
examples: assault, conversion of goods
Unintentional Torts
can result from careless or negligent conduct
