Chapter 5 Flashcards
List the three elements of NEGLIGENCE
That the defendant owed the plaintiff a Duty to Take Care (Licensees owe a duty of care to anyone that could reasonably be foreseen to be affected by his actions).
That the defendant Breached the Standard of Care Owed.
- The care of a “reasonable person” is the standard.
The the Damages Suffered by the Plaintiff as a Result of the Defendant’s Breach were not too Remote in Law. (I.E. must be reasonably foreseeable)
VICARIOUS LIABILITY
Where an employee commits a wrongful act in the ordinary course of employment, the injured party can sue both the employee and the employer for damages caused by the employee’s act.
List the elements of NEGLIGENT MISREPRESENTATION
There must be an untrue statement.
It must have been made negligently.
There must be a special relationship between plaintiff and defendant giving rise to a duty of care.
There must be reliance by the plaintiff on the negligent statement which is reasonable.
Describe the tort of DECEIT and distinguish between deceit and negligent misrepresentation.
Deceit differs for two reasons:
Involves a sense of moral fraud vs carelessness
A person does not need to be an expert to be liable
A fraudulent misrepresentation (i.e. DECEIT) is used by one person to deceive or trick another person ignorant of the true facts.
PRIVATE NUISANCE
Occurs when an owner/occupier of land unreasonably and substantially interferes with the reasonable use and enjoyment of a neighboring property.
Focus is rather on the harm done to the injured party’s land or the interference with that party’s proprietary rights.
With nuisance, where an unreasonable interference with proprietary rights is being complained of, there must be a significant interference.
TRESPASS
Trespass is the unwanted entry and remaining on ones land.
A trespass usually involves a single occurrence or a few isolated occurrences.
Who is liable for NUISANCE?
The person who creates the nuisance is liable.
AND the occupier of the land on which a nuisance has been created who knows or should reasonably know of it but takes no steps to abate it, is liable for nuisance.
Valid defense to NUISANCE
Statutory authority: Where the nuisance is the unavoidable result of doing an act authorized by statute. The mere fact of licensing or of statutory authorized activity is not sufficient. If the authorized activity can be performed without creating a nuisance, then it must be done that way.
*** The damage caused is trifling and of little consequence
Non-valid defenses for NUISANCE
Volenti non fit injuriae: It is no defense to say that the plaintiff came to nuisance
Public benefit: It is no defense to say that the act complained of is beneficial to the majority
Suitable space: It is no defense to say that no other place is suitable for the conduct of this operation
Care and skill: It is no defense to say that the utmost care and skill have been taken or that the act cannot be done without causing a nuisance
Contributory acts of others: It is no defense to say that no nuisance would be created except for the contributory acts of others. Each person contributing to the nuisance will be liable for his/her share.
OCCUPIERS LIABILITY ACT (OLA)
Statue Law. Occupier has a duty to take such care as in all the circumstances of the case if reasonable.
No duty of care owed to adults who willingly accept risk.
Higher duty of care owed to children.
SUSPICIOUS TRANSACTION REPORT
Must be filed as soon as possible to FINTRAC when licensee believes that are reasonable grounds.
There is no transaction limit.
