Chapter 4 Flashcards
(pg 396-397) Who is liable for unsatisfactory performance or wrongdoing (breach of contract) under a work contract?
If an employee is performing work for the employer, any legal liability falls to the employer, even if the conduct was prohibited and not authorized.
Tort:
Act hurting a person or damaging property of another (physically, emotionally, or financially).
What are the three things upon which in tort law, a breach of obligation to the victim is NOT based upon?
Consent, agreement, or contract.
Is the intent of tort law to compensate victims for harm or to punish the offender?
To compensate victims for damages.
If tort law establishes there is right to claim in a situation, what other two things does it help determine?
Who bears the loss and how to apportion the losses.
Strict liability:
Liability imposed based upon cause regardless of whose fault or what the intention (earlier law uses this principle, but later laws were made to consider (indirect and consequential injuries).
Fault:
Blameworthy actions unjustifiable because it disregards the concerns of others.
What is one of the main reasons liability is often based upon fault? How might this incentive be made less effective?
Its deterrent effect i.e. causing fear of consequences. If a company has liability insurance however, the insurer may have to pay for the loss, and the incentive to be more careful is lost.
Where can fault be a disadvantage for a victim of an accident?
In the event that it cannot be proved that there is any Fault on anyone’s behalf, the victim may go uncompensated.
What is a general circumstance when strict liability may be used today, or the effects of certain legislation may result in a similar effect to that of strict liability?
When a person knowingly undertakes some risky activity, such as storing explosives or oil, fault is usually considered. However, the standard of care in such situations is so high that the effect is roughly the same as strict liability being applied.
Standard of care:
Level of care someone must take given some specific circumstances (likelihood of harm, degree of harm, utility of activity, feasibility of eliminating risk).
Public policy:
Economic, social, and political considerations and objectives believed to be beneficial to society.
No-fault insurance:
You will be compensated regardless of fault in an accident. It helps to expedite compensation without blame being passed around. However, this does not mean no one is at fault.
Workers compensation and vicarious liability:
Employers contribute to fund to compensate workers injured on the job, regardless of how the injury is caused. The fact that the injury may be as a result of employee’s carelessness and the employer may be blameless is negligible (study Fig. 4.1).
Give two public policy reasons for why the vicarious liability approach is used.
i) employees have limited assets ii) seems fair that whoever will profit from activity should be liable for the loss (burden).
What are the two types of torts?
Intentional and non-intentional.
Compare and contrast the two types of torts. What does the intention of the tort relate to?
Intentional torts is where conduct is deliberate, and vice versa for unintentional torts. In both, the harm may be unexpected, but intention relates to the behavior, not the resulting damage.
What is required for a tort to be actionable?
Must result in harm or damage.
Assault:
Threat of violence to a person.
Battery:
Unlawful physical contact with a person.
Public nuisance:
Interference with use of public facilities.
Private nuisance:
Interference with occupier’s use and enjoyment of property (does not include trivial annoyances, and is subject to several considerations).
False imprisonment:
Unlawfully restraining or confining another person.
Unlawful arrest:
Arrest without reasonable cause
Malicious prosecution:
Person being prosecuted for a crime without honest belief that crime was committed (very rare).
Defamation:
Making an untrue statement causing injury to reputation of another person. Requires ‘publication’ to a third-party.
Libel and slander:
Written and spoken defamation.
Absolute privilege (give an example):
Immunity from liability for defamation. e.g. If a person makes an allegation against someone in court and it is proven wrong, they may be subject to absolute privilege. Also applies in parliamentary debate
Qualified privilege:
Immunity from liability for defamation provided a statement is made in good faith.
Responsible communication on matters of public interest (also ‘fair comment’)
Publication of researched and reasonably-held opinion honestly believed to be true.
Inducing breach of contract:
Intentionally causing one party to breach her contract with another.
Unlawful interference (conduct triggering civil liability) with economic relations:
Using threats or other unlawful means to induce one person to discontinue business relations with another.
Negligence:
Carelessly causing injury to property or injury of another (fault, loss, causation** see checklist on page 84)
Duty of care:
A relationship is close enough that one could reasonably foresee causing harm (not a particular harm) to the other (not any particular person) (proximity and foresee-ability are important).
What is the Supreme Court’s test for duty of care?
“Whether such a relationship exists depends on foresee-ability, moderated by policy concerns.”
Standard of care:
The level of care a person must take in the circumstances. Not reasonable to take every precaution when any loss may be minimal.
What are the four elements of negligence:
Duty of care, standard of care, damage to plaintiff, causation of damage.
Causation:
Connection between the injury and the breach of standard of care
Explain the “but for” test.
If not for the negligence of the defendant, this damage would not have occurred.
Remote:
Unrelated or far removed from the conduct, and therefore not held responsible (see Mustapha v. Culligan).
Egg shell/thin skull
Take the victim as he finds him.
Contributory negligence
A partial defense when it can be proved that the plaintiff or another defendant contributed to the injury (modern; today’s courts apportion loss based on respective degree of responsibility).
Mitigate:
Duty to act reasonably and quickly to minimize extent of damages. suffered.
Voluntary assumption of risk:
A defense to a negligent action when plaintiff was aware of risk and continued anyway.
Subrogation (give a common example):
When one party is entitled to rights and cause of action of another e.g. when insurance company pursues legal action on behalf of their client. The insurance company may now sue to collect losses.
Product Liability (what does it include):
Negligence tort involving liability by manufacturer for harm caused by defective products. It includes duty to warn of potential dangers, and often involves consideration of standard and duty of care e,g, Donoghue vs Stevenson.
How can a plaintiff prove that the result of their injuries were a result of the defendant’s negligent actions?
If it can be shown that a company omits safety features or adopts below-standard quality control processes to save money, for example, it will be much harder for them to rebut against the plaintiff’s allegations of negligence on their part.
Duty to warn
Manufacturer’s responsibility to make users aware of risks associated with use and misuse of product.
Occupier’s liability (whose safety are they responsible for?:
Negligence tort imposing liability on occupants if land for harm suffered by visitors. Occupiers have a duty of care to licensees, invitees, and even trespassers.
Invitee
A person permitted on premises for business purposes.
Licensee
Any other visitor on premises with consent.
What is an occupier’s duty of care to a trespasser?
It is very minimal; they must not deliberately harm them or disregard possibility they may be harmed. There should be warning signs for any dangers as needed.
Damages:
A sum of money (compensation) for loss or injury.
Punitive damages
Damages awarded with intention of punishing a wrongdoer.
Restitution
Order to restore property wrongfully taken.
Injuction:
A court order prohibiting a person from doing, or continuing to do something.
Mandatory Injuction:
Court order requiring person to do something.
