Chapter 1 Study Guide and Checkpoints Flashcards
1
Q
Identify the two divisions in the Canadian Legal System
A
1) Criminal Law
2) Civil Law
2
Q
Brokers should always recommend clients questions concerning matters of law to who?
A
A qualified legal practitioner
3
Q
Identify four Examples of CRIMINAL WRONGS
A
1) Drug trafficking
2) Murder
3) Polution
4) Burglary
4
Q
Identify two duties of the state with respect to those who commit criminal wrongs
A
1) To prosecute
2) To punish
5
Q
3 type of SANCTIONS criminal law uses to enforce its rules
A
1) Fines
2) Penalties
3) Imprisonment
6
Q
Identify the two areas of CIVIL LAW
A
1) Tort Law
2. Contract Law
7
Q
Identify the primary role of TORT LAW
A
To enable victims to obtain COMPENSATION for their LOSS from those that caused it
8
Q
Define TORT
A
A PRIVATE or CIVIL WRONG OR INJURY, (other than contract), for which the court will provide a REMEDY in the form of an ACTION for DAMAGES
9
Q
2 kinds of TORTS for which compensation may be provided by the courts
A
- Intentional torts
2. Unintentional
10
Q
Define Breach of Contract
A
Failure, without LEGAL EXCUSE, to perform any PROMISE which forms the whole or part of a CONTRACT
11
Q
2 ways that both criminal and civil laws are established
A
- Common Law
2. Statute Law
12
Q
Common Law is also known as:
A
Case Law
13
Q
How current court decisions are made in Common Law
A
By the RULE OF PRECEDENT
14
Q
Statute law is:
A
WRITTEN LAW enacted by legislation
15
Q
Which of statute law or common law supersedes or amends the other
A
Statute law supercedes
16
Q
3 types of DAMAGES a court may award in tort actions
A
- Compensatory Damages
- Exemplary or Punitive Damages
- Nominal Damages
17
Q
2 types of COMPENSATORY damages
A
- General Damages
2. Special Damages
18
Q
3 types of GENERAL DAMAGES
A
- Humiliation
- Disfigurement
- Inconvenience
These are just examples
19
Q
Examples of SPECIAL DAMAGES
A
- Doctor/dentist
- Travel Expense
- Nursing Fees
- Prosthetics
20
Q
3 Factors that can impact on the amount of COMPENSATORY DAMAGES
A
- Financial circumstances
- Reputation
- Social Position
There are more, these are just examples
21
Q
The purpose of exemplary or punitive damages
A
- to PUNISH
2. and to DETER
22
Q
Explain why Nominal Damages may be awarded
A
When there is a desire to establish the VALIDITY of a plaintiffs claim. Nominal is where they are awarded like $1 only.
23
Q
4 REMEDIES for a breach of contract
PEPP is the REMEDY!
A
- Provide for payment of damages to the injured party
- Enforce specific performance of the terms of the contract
- Prohibit the party from performing certain acts
- Permit rescission of the contract so as to return parties to pre-contract positions
24
Q
Negligence
A
Fault or failure of the defendant to exercise reasonable care
25
3 conditions to be present to establish negligence
1. Defendant owed plaintiff LEGAL DUTY OF CARE
2. Duty was BREACHED as a result of the defendants negligence
3. Plaintiff suffered some damages
26
What is the reasonable man
He varies, he has the minimum perception, memory, experience, and info common to the community
27
What is the rational behind the principle of Strict Liability
Is to place a greater onus of responsibility for losses which are likely to occur on those who are in the best position to control them
28
4 examples / activities that can impose strict liability
1. Setting off explosives
2. Lighting of fires
3. Operation of Aircraft
4. Keeping water in a dam or keeping wild animals
29
Define OCCUPIER
Person who has the immediate supervision and control of the premises' and the power to admit or exclude others
30
Premises Exposure Examples
1. wet floor
2. Loose railing
3. Inadequate ID of exits
31
3 examples of OPERATIONS EXPOSURE
1. Paint store can drop on customer
2. Spark from Welder causes fire
3. ?
32
How a customer of a business premises would be classified under common law
Invitee
COMEon INvitee
33
How is a customer classified under STATUTE law
Visitor
34
Duty owed to a 'visitor' under the Occupiers Liability Acts
Such care for the circumstances that are reasonable
35
2 instances that a PRINCIPLE would NOT be liable for the acts of an independent contractor
1. Reasonable care was exercised in selection
| 2. Reasonable the work SHOULD have been undertaken
36
3 Instances when a principle WOULD be liable for the acts of an independent contractor
1. The work is inherently dangerous
2. When caused by defective equipment supplied by Principal
3. When the principle controls the manner in which the work is to be done
37
Explain the liability of the building owner for 'single occupancy buildings' and the EXCEPTION
Landlords are generally not liable to tenants or their customers for injuries caused by the unsafe condition of the premises. EXCEPTION is when they fail to notify the tenant of any dangerous conditions
38
Explain the liability of the building owner for 'multiple occupancy building'
They are liable to tenants and visitors.
Landlords are liable for the condition of areas COMMON to all occupancies
39
Define NUISANCE
Everything that endangers
- life or health
- gives offense to the senses,
- violates the laws of decency, or
- obstructs reasonable and comfortable use of the property
40
3 examples of nuisance
1. Odors
2. Noise
3. Pollution
41
# Define TRESPASS
PPR
An unlawful interference with ones person, property, or rights
42
2 examples of TRESPASS
1. Building hangs over your yard
| 2. Dumping waste on land of another
43
What constitutes a DEFECTIVE product
1. Contained something it should not have
| 2. Something was OMITTED in its manufacture that should have been there
44
If a defective product is consumed on the premises of the client, it is a...
PREMISES claim
45
To be considered a PRODUCT CLAIM, 2 conditions must exist
1. Occurred away from the premises of the seller and
| 2. The seller had clearly relinquished possession of the defective product
46
2 ways an ACTION FOR DAMAGES caused by a DEFECTIVE PRODUCT can be brought
1. Action in Contract
| 2. Action in Tort
47
Identify the Implied Warranty with respect to the products of sellers
The fitness of a business's product for a particular purpose
48
Explain what the law expects of buyers and the exception to this rule
Law holds that buyers must exercise care as to the SUITABILITY and QUALITY of the goods purchased except when RELYING on sellers skill or judgement
49
What was the result of the decision in the case of Donaghue vs Stevenson? (snail )
Extends all users of defective products to sue manufacturers.
50
2 Duties of manufacturers with respect to product defects
1. Safe Design
| 2. Safe manufacture
51
2 duties of manufactures with respect to products even if it is NOT Defective
1. Give warnings
| 2. Give instructions
52
2 duties of sellers about their products
1. Experts of the ingredients and properties
| 2. To tell the TRUTH
53
2 Conditions that need to be present to be a COMPLETED OPERATION
The injury or damage:
1. Occurred away from the premises of person doing the work.
2. Such work has been completed or abandoned
54
5 types of claims that may be alleged under the 'completed operations' exposure
1. Improper performance of a completed task.
2. Use of defective materials, parts or equipment
3. Work not as warranted even though not bad equipment
4. Damage to completed work out of the materials or equipment
5. Failure of the contractor to withdraw, inspect, repair, or replace defective work
55
4 examples types of claims that would fall under the insurance definition of personal injury
1. Libel
2. Slander
3. Landlord entry
4. Wrongful shoplifting suspect
56
3 examples of business that might have a 'personal injury' exposure
1. Those employing store detectives
2. Landlords
3. Newspapers and Broadcasters
57
2 types of REAL PROPERTY
1. The building you rent
| 2. The fixed equipment there
58
What is generally considered Personal Property?
Goods held other than for sale
59
Define Bailee for Hire
One who has the custody and is compensated
60
The general responsibility of employers for employees
Master is responsible for servants but only related to work
61
3 exceptions where employers not responsible
1. Arranged without,consent, someone to do their work
2. On a frolic of their own
3. Use the employers property without authorization for their own purposes
62
As society evolved, two separate systems of law emerged. Discuss the primary role of:
1) Criminal Law
2) Civil Law
1) CRIMINAL
The primary focus of criminal law is on punishing the persons responsible for the crime
2) CIVIL LAW
Concerned with civil or private rights and remedies, as contrasted with criminal law which deals with wrongs against society
63
Civil law deals with wrongs originating in tort law or contract law.
a) Identify the kinds of wrongs falling within tort law for which compensation may be provided by the courts
The kind of torts for which compensation may be provided by the courts include intentional torts and unintentional torts.
64
b) A breach of contract may result in a civil action against an insured. Provide an example of a "breach of contract"
A building contractor elects to quit a project before completing work agreed to in a legal contract, legal action may be initiated by the owner for breach of contract.
65
Two main bodies of law relating to both criminal and civil matters
1) Common Law
| 2) Statute Law
66
OUtline the underlying principles which govern the administration of the following bodies of law
a) Common Law
In Common 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
67
b) Statute Law
Statute Law is written law enacted by federal or provincial legislation It amends or supersedes the common law.
68
DAMAGES
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?
Compensatory damages are the most important in ensuring victims are able to withstand the financial consequences of the loss.
These are intended to compensate the injured party for the bodily injury or property damage sustained.
69
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 there is a breach or failure to fulfill contractual obligations, the courts may rule in the following manner.
- Provide 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 from to their pre-contract positions
70
Identify the 3 conditions which must be present before the court will be satisfied that the tort of negligence has been committed.
1. The defendant owned the plaintiff a legal duty of care
2. The duty was breached as a result of the defendants negligence
3) The plaintiff suffered damages as a proximate result of the defendants negligence.
71
The doctrine of strict liability changes the way in which ones responsibility for a wrong is viewed by the court. Discuss
The D of SL is based on the assumption that certain activities are so hazardous that in the event of injury or damages arising out of them the person conducting the activity shall be presumed to be legally liable.
72
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 OCCUPIER is not dependent on ownership of the premises, but rather is based on who has control over the premises.
73
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.
The common duty owed is a duty to take such care as in all the circumstances of the case is REASONABLE to see that the VISITOR will be reasonable 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.
74
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 negligence of an independent contractor 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.
TENANT OR OWNER WILL SHARE in any liability arising out of the negligence of the contractor when:
- the work being done is INHERENTLY DANGEROUS
- when injury or damage results from the contractors use of defective fixtures, machinery or equipment supplied by the principal
- when the principal controls the manner in which the work is to be done.
75
Principle refers to
The one who does the HIRING
76
a product liability claim cannot originate on the premises of the person supplying the defective product what conditions must have been present for a product liability suit to be successful?
a product liability claim can arise only when it is showing that the injury or damage:
1. occurred away from the premises of the seller and
2. occurred after the seller had clearly relinquished possession of the defective product
77
identify the parties having the right to claim damages for injuries sustained through the use of the sellers product when the action alleges:
a) Breach of contract
b) Tort of negligence
a) breach of contract: only the person who actually purchased the defective product and who is injured by it is entitled to sue for breach of contract
b) 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
78
what effect did the 1932 decision regarding donohue versus stevenson have on the way in which the law viewed the responsibility of manufacturers for their products?
The snail in the bottle case.
As a result of this decision the responsibility of manufacturers for the negligence was extended to the ultimate users of the products. Manufacturers are liable in court for damages caused when their products are most likely to be used without immediate examination.
79
state three duties of manufacturers
1. manufacturers are liable for all product defects of which the present state of technology can reasonably be expected to make them aware. The manufacturer has a duty to ensure the following:
- SAFE DESIGN
- safe manufacturer,construction, assembly and packaging
- even when a product is not defective there may be dangerous if it is not properly used, the manufacturer owes a duty to consumers to give proper warning of dangers which can occur and using the product, and provide INSTRUCTIONS if needed
80
State two duties of SELLERS
1. sellers are considered to be experts when it comes to the ingredients and properties of the articles they sell
2. sellers are expected to tell the truth about their products
81
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 given rise to the claim:
a ) occurred away from the premises of the person(s)doing the work and
b ) that such work has been completed or abandoned
82
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
2) when employees work in another province for longer periods than a permitted by the workers compensation plan. e.g.) injured employee may sue employer for damages
83
what is the tenant liability for fire loss to landlords building
in contract law most cases the extent of the tenant liability for lost will be stated in a rental or lease agreement.
common law - where no rental or lease agreement exists the common-law position is that the owner is entitled to the same remedies in law that would be available without such agreement and in other words, if a tenant is liable in part for loss to the building, the owner is entitled to compensation
84
explain the extent of bailee's liability in common law
The extent of the bailey's liabilities a matter of tort when determining liability, the standard of ORDINARY CARE is applied.
As it is likely to be difficult for the owner of the goods to establish the cause of the loss, the courts place upon the bailee the burden of showing that it was not negligent in causing the loss
85
explain the bailee's liability under contract
1. Establishes bailees liability
| 2. If not explicit, standard of care required in tort law will apply
86
employers liability for torts caused by employees while in the performance of their duties
employers liability for torts caused by employees while in the performance of their duties and common law employers shall be held liable for the towards of their employees while the course of employment
87
what is the employer's liability for torts caused by employees while on a frolic
there is no liability upon employer for injury or damage caused by employees who are on a frolic of their own
88
what's the employer's liability for damaged for injuries caused to employee who is hurt in the course of employment
the right of employee to see when employer in common law is removed generally. in exchange for the no-fault benefits provided by provincial workers compensation plans employees are deemed to have waived the right to sue the employer. EXCEPTION: certain occupations do not fall within the jurisdiction of workers compensation acts employers hiring persons falling within these occupations maybe sudan common law when such persons suffered injury in the workplace
89
what would be the liability of a local chicken farmer for sickness caused by fumes which escaped from a farm
the occupier may be liable for the tort of nuisance... escape of smoke odours noxious vapors are fumes. also there was a possibility for an action in common law which the doctrine of strict liability may apply. this doctrine is based on the assumption that certain activities are so hazardous that in the event of injury or damage arising out of them person conducting the activity shall be presumed to be legally liable
