Chapter 8 - Principles of Legal Liability

Question 1

Define “civil law”.

Answer 1

Civil law is concerned with settling disputes between individuals or other legal entities in matters not involving a criminal act. It is also referred to as “private law”.

Question 2

What is the goal in a civil action?

Answer 2

The goal in any civil action is to seek compensation for the amount of the financial loss or damage suffered by the insured party.

Question 3

Identify the two main areas of law comprising of civil law.

Answer 3

The two branches of Civil Law are:
1. Contract Law
2. Tort Law

Question 4

Define Tort.

Answer 4

A tort is a wrongful act which has negligently caused damage or injury to another. This wrongful act may be an intentional act, a negligent act or a failure to act.

Question 5

Identify three elements required to be present in every tort action.

Answer 5

i) Duty Owed: The law assumes that people have the right not to be harmed. By implication, this means that people have a duty to refrain from causing harm to others.
ii) Duty Breached: When determining responsibility for a tort, the court will attempt to determine if there was a breach of the legal duty owed to to the plaintiff.
iii) Damages suffered as proximate result of defendant’s actions: There must be some injury or damage caused to the person having the right to be free from harm. The proximate clause rule is applied. There must be uninterrupted unfolding of events without the introduction of another primary cause from the initial act to its conclusion.
* Liability insurance policies do not pay for injury or damage intentionally caused.

Question 6

Identify two types of torts for which a person might be held responsible.

Answer 6

1. Intentional Torts: A wrong which has been committed by someone who knew the act was illegal.
2. Unintentional Torts: involves a careless rather than intentional invasion of another’s rights. When injury or damage results, the person wronged is entitled to sue for damages.
   * Liability policies are primarily designed to insure the unintentional torts of insureds.

Question 7

Define “negligence”.

Answer 7

Negligence is the omission to do something which a reasonable person would do or doing something which a reasonable and prudent person would not due.

Question 8

a) Define “negligence”.
b) Negligence must be proven. In addition to those elements required to be present in every tort action, two additional elements must also be present to prove the tort of negligence. Explain.

Answer 8

• It must be shown that the legal duty owed to the plaintiff was breached as a result of the carelessness or neglect of the defendant.
• Results of insured’s negligent conduct is required to be foreseeable. I.e., Mary should have been able to foresee the dangerous consequences of failing to deal with an icy patch on her premises.

Question 9

Define Trespasser

Answer 9

A trespasser is on the premises without the expressed or implied permission of the occupier.

Question 10

Define Visitor

Answer 10

A visitor is defined as anyone entering the premises other than a trespasser.

Question 11

State the “legal duty” owed by occupiers to the following persons entering onto their premises:
a) A trespasser.
b) A visitor.
c) Children.

Answer 11

A trespasser: Occupiers must not set traps or intentionally cause harm to the trespasser.
A visitor: The Occupiers Liability Act replaces the common law duty to take reasonable care to ensure that all visitors are reasonably safe in using the premises.
A child: In common law, the accepted legal position is that children lack the mature judgment needed to avoid risk and, therefore, need to be protected. The occupier of property must ensure that the premises are safe from any danger whatsoever.

Question 12

Briefly state the legal precedent for Liability of a landlord in building having multiple tenancy.

Answer 12

In buildings having multiple tenancies , the landlord is responsible to both the tenant and others for the condition of the areas common to all tenants, including roof, stairways, parking areas, and lobbies.

Question 13

Liability of a tenant to landlord.

Answer 13

Tort Law - If a tenant is liable in tort for damages caused, the building owner is entitled to compensation. I.e., when damage arises out of the tenant’s negligence, the tenant will be liable to the landlord for damages.
Contract Law - The extent of the tenant’s liability for loss will be stated in a contract, such as a rental or lease agreement with the building owner.

Question 14

Liability of a bailee for customer’s goods.

Answer 14

Tort Law: Bailees for hire are required to exercise the same care over a customer’s property as would be exercised by others in the same business. This level of care is referred to as ordinary care. In common law, bailees are responsible when the duty of ordinary care is breached because of their negligence.
Contract Law: In addition to the duty in law to exercise ordinary care over property entrusted to them, bailees may assume other responsibilities for the property under a separate contract.

Question 15

Liability of an employer for torts of their employees.

Answer 15

In common law, employers are liable for the torts committed by their employees while in the performance of their duties.

Question 16

Liability of an employer for injuries to their employees.

Answer 16

Employers may be liable for damages when injuries are caused to employees working in a trade or occupation not covered under the workers’ compensation plan in their province. In such cases, separate arrangements for insurance will be required. Options include:
- Purchase of a separate Employer’s Liability Rider, or
- Enroling such employees in the worker’s compensation plan.

Question 17

Liability of property owners for torts of an independent contractor.

Answer 17

Generally, occupiers of property are not liable for the negligence of an independent contractor with whom they have contracted to perform work 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.
EXCEPTIONS: The work being done is inherently dangerous; the injury or damage results from the contractor’s use of defective fixtures, machinery or equipment supplied by the occupier; the occupier controls the manner in which the work is to be done.

Question 18

Liabilities of owners for injury or damage caused by domestic animals.

Answer 18

In common law, there is no first free bite and a dog’s owner is deemed legally liable from the first bite. This liability is from the Dog Owner’s Liability Act of Ontario.

Question 19

Liabilities of owners for injury or damage caused by wild animals.

Answer 19

In common law, the owner of any animal whose natural ferocity or wildness is a matter of common knowledge shall be held strictly liable for injury or damage inflicted by it.

Question 20

Liability of children.

Answer 20

Children are responsible for the injury or damage they cause unless it can be proven they were incapable of understanding the consequences of their actions.
**Parents are generally not required to pay for the torts of their children, except when it can be shown that:
i) there was a demonstrated failure on the part of the parent(s) to properly supervise and control their child’s activities.
* The injury or damage was caused by a dangerous thing(s) or animal(s) relinquished by the parent(s) to the control of the child.

Question 21

Definition of Tortfeasor

Answer 21

When two or more persons act negligently to cause injury or damage to others, they are called joint tortfeasors.

Question 22

State the legal position regarding the payment of damages when two or more people are held responsible for a tort.

Answer 22

When equal liability is disputed, each tortfeasor shall be held liable for the entire amount of the award. As this would result in the plaintiff receiving twice the amount of the judgement, compliance with this law would not be attractive to either tortfeasor. As a result, each tortfeasor will generally agree to pay an equal share of the damages, and then take whatever steps as are needed to resolve their own dispute as to how the amount of the damages awarded should be shared.

Question 23

Occupier required to make premises safe for use of these persons.

Answer 23

Visitor

Question 24

Occupier must ensure that the premises are safe from any danger whatsoever.

Answer 24

Children

Question 25

These persons owed no legal duty but the occupier cannot intentionally harm them or set traps

Answer 25

Trespasser

Question 26

Legal Precedents – True and False
a) ___ The owner of a dog shall not be liable for injury caused by it when the dog has never before caused a similar injury e.g. has never bitten anyone previously.

Answer 26

FALSE

Question 27

Legal Precedents – True and False
b) ___ The law holds parents financially responsible for all torts of their children

Answer 27

FALSE

Question 28

Legal Precedents – True and False
c) ___ When two or more personas are liable for a tort, each shall be held to be liable for the entire amount of the damages awarded

Answer 28

TRUE

Question 29

Legal Precedents – True and False
d) ___ Employees are personally responsible for the torts committed by them while in the performance of their duties

Answer 29

TRUE

Question 30

Legal Precedents – True and False
e) ___ Independent contractors will generally be held responsible for their own torts.

Answer 30

TRUE

Question 31

Legal Precedents True or False
f) ___ In tort law, a bailee owes the owner of property the duty to protect it from all sources of loss

Answer 31

True