Chapter 4 Flashcards
What is a tort?
A breach of legal duty that does not require a contractual relationship. Example: Personal injury from a road accident.
What happens if a tort is committed within a contractual relationship? (2 options)
Under contract law: Damages awarded aim to put the claimant in the position they would have been in had the contract been performed.
Under tort law: Damages awarded aim to put the claimant in the position they would have been in had the tort not occurred.
What are the limitation periods for contract and tort claims?
In contract- 6 years from breach of contract
In tort- generally 6 years, 3 for personal injury
What are the elements of a successful tort claim? List 3
Act/omission by defendant (accused)
Cause damage or injury to claimant
Court can est legal liability from damage
What does a claimant need to prove to be successful in negligence claim?
Duty of care owed by defendant
breach of duty
damage suffered
What is the neighbour principle?
A duty of care is owed to a person even without a contract.
What are the 4 tests to determine if duty of care exists
Foreseeable damage at time of act?
Does neighbourhood principle apply?
Should law impose duty of care?
Matter of public policy existing that duty of care shouldnt exist?
What are key principles for professionals from case law
professionals held to higher standard (disregarding experience level)
judged on info at time
expected to follow general practice
When does professional’s liability for negligence end?
if a separate event later contributes to the harm
What 3 factors are considered by court when giving bad advice
Professional service?
Business setting?
Did advisory know person would rely on it?
What are the 3 main defenses to charge of negligence?
Contributory- claimant contributes to their own harm, the court can reduce the defendant’s liability accordingly
Volenti non fit injuria- If someone knowingly and willingly accepts a risk, they generally cannot hold another party liable for resulting harm. (knew risk)
Exclusion clause- Professionals can limit liability through specific contract clauses or if harm results from unavoidable events beyond their control. (contract clause or beyond control)
What is vicarious liability
When someone is held responsible for the harm caused by another person’s actions. For example a delivery company is held liable for an accident caused by their driver while on duty.
