Civil liability

Question 1

what is civil liability?

Answer 1

civil liability is a non-contractual liability. It is a breach of your duty not to cause injury to others.

Question 2

whats the damage assessment for contractual and non-contractual liability?

Answer 2

bodily, moral and material damages

Question 3

Liability can either be _____ or _____

Answer 3

contractual or non-contractual

Question 4

whats contractual liability

Answer 4

liability for breach of contract. If you breach your contractual obligations, you are liable for the bodily, moral and material damage that your breach of contract causes to the other party

Question 5

What are the 3 degrees of fault

Answer 5

negligence (carelessness)
gross negligence (reckless disregard for the safety of the people around you)
intentional fault (where it can be proven that you intended to injure the creditor)

Question 6

In order to be liable under non-contractual liability the creditor must show that the

Answer 6

1. the debtor has commited a fault and
2. that the debtor is endowed with reasons

Question 7

what does endowed with reasons means

Answer 7

know the difference between right or wrong. Generally a person, who is 7 years of age, will know the difference between right and wrong and will therefore be considered to be endowed with reason

Question 8

whats the minimum age for criminal liability

Answer 8

12 years old

Question 9

Examples of Vicarious Liability:

Answer 9

1. Liability of employer
2. Parental authority
3. Custody of a minor
4. Tutor or curator
5. Custody of a thing
6. Owner of an animal
7. Ruins of an immovable

Question 10

In the case of vicarious liability for an employer, when are they liable for their employees?

Answer 10

the employer is always liable for damages caused by the employee in the performance of his/her work – the employer has no defense under CCQ 1463, the employer’s liability is absolute

Question 11

In the case of vicarious liability (indirect liability) , when is a person having a parental authority bound to make reparation for injury caused by a minor under their authority

Answer 11

a person having parental authority is bound to make reparation for injury caused to another by the act or fault of a minor under his authority – unless he proves that he himself did not commit any fault with regard to the custody, supervision, or education of the minor

Question 12

For the custody of a minor is it apprehended in the same approach as the parental authority in regards to Vicarious liability? (indirect liability)

Answer 12

Yes. a person who does not have parental authority but is entrusted by delegation or otherwise with the custody, supervision, or education of a minor, is bound in the same manner as the parents to pay reparation for any injury caused by the act of a child in their custody

Ex: School teachers, babysitters, staff….

Question 13

How is vicarious liability (indirect liability) apprehended in the case of a tutor/curator?

Answer 13

(assisting a protected person 18 years or older) tutor/curator is not liable for damages caused by the protected person unless the tutor/curator has committed a separate fault

Question 14

If babysitters are working gratuitously can they be held liable?

Answer 14

babysitters acting gratuitously (not paid) will not be held liable unless it can be proven that the person supervising the child for free committed a separate fault

Question 15

How is vicarious liability (indirect liability) apprehended in the case of an owner of a thing?

Answer 15

the custodian of a thing is bound to make reparation for injury resulting from the autonomous act of the thing unless he proves that he is not at fault

Question 16

How is vicarious liability (indirect liability) apprehended in the case of an animal owner?

Answer 16

the owner of an animal is bound to make reparation for injuries it caused whether the animal is under his custody, that of a third party, or has strayed or escaped

Question 17

Is the person making use of the animal also liable along with the owner?

Answer 17

Yes. A person making use of the animal is also, during that time, liable along with the owner

Example: You borrow your neighbour’s horse to go riding, and the horse kicks somebody passing by on a bicycle. The owner of the horse will be liable and so will you, the person using the horse

Question 18

How is vicarious liability (indirect liability) apprehended in the case of ruins of an immovable?

Answer 18

the owner of an immovable (like a building), without prejudice to his liability as custodian, is bound to make reparation for injury caused by its ruin, even partial, whether the ruin has resulted from lack of repair or from a defect in construction

Example: bricks fall out of the wall of a building due to a flaw in original construction or due to failure/lack of maintenance

Question 19

Concerning product liability, whats the manufacturer’s liability?

Answer 19

The manufacturer of movable property is bound to make reparation for injury caused to a third person (anyone injured by the product) by reason of a safety defect in the thing, even if the movable property has been incorporated with or placed in an immovable for the service or operation of the immovable

Question 20

Can the customer sue either the manufacturer or seller?

Answer 20

Yes.
This liability also covers all professional sellers of the goods including the importer, distributor, wholesaler and retailer.

Since retailers are liable for defects, as if they were the manufacturer, retailers are wise to ensure that the products they sell meet minimum safety standards, under CCQ 1468, the consumer can sue the retailer directly for damages (instead of the manufacturer that may be in a different location)

Question 21

Whats an example of the defense of special knowledge in case of product liability?

Answer 21

Example: a carpenter getting injured by a drill when not wearing safety goggles may have difficulty convincing the court that his injury was due to failure of the manufacturer to provide adequate warning notices that people should wear safety goggles when using the drill. The carpenter might be seen by the court as being an expert in the use of power tools and therefore the carpenter should have known better than to drill without wearing goggles. The ordinary consumer/home owner, on the other hand, would not be considered an expert in the use of power tools, therefore the warning labels must be sufficiently detailed to warn the inexperienced consumer about all foreseeable dangers associated with the proper use of the drill

Question 22

The defense of special knowledge is a defense for _________

Answer 22

Manufacturers.

Question 23

Whats the defense of special knowledge

Answer 23

where the victim of the injury is considered by the courts to possess special knowledge about the product in question, the courts might not hold the manufacturer (professional seller) liable even if the warning labels are inadequate

expert possesses special knowledge, expected to know how certain things work. court may pass a judgement in favor of the manufacturer.

Question 24

What are examples of limitations of liability?

Answer 24

1. Superior Forces
2. Good samarithan legislation
3. Whistleblowing
4. Waivers
5. Notices excluding liability ( posted sign that states that the establishment will not be liable for any loss)
6. Notices of warning

Question 25

for the good samarithan legislation, you wont be held liable if you cause additional injuries to someone while helping them unless…..

Answer 25

unless the court finds that the injuries you caused are due to your gross negligence or intentional fault

Question 26

Civil liability (CCQ 1457) encompasses 3 degrees of fault:

Answer 26

negligence (carelessness), gross negligence (reckless disregard for the safety of those around you), intentional fault (where it is shown that you intended to injure the victim)

Question 27

Can injuries caused through gross negligence or intentional fault could conceivably lead to criminal charges in addition to a civil lawsuit for damages?

Answer 27

Yes.

Question 28

Does a Waiver excludes all 3 degrees of fault found under civil liability?

Answer 28

Yes

Question 29

can one give up their rights to sue for bodily or moral injury?

Answer 29

No. CCQ 1474 expressly states that one may not given up (waive) their rights to sue for bodily or moral injury

Question 30

For a waiver, if you can prove that you suffered material damage due to the gross negligence or intentional fault of the operator/employees/agents, then the waiver that you signed does not prevent you from suing them.

Answer 30

True. However it will only protect the operator from being sued for material damage caused by the negligence of the operator/employees/agents.

Question 31

what are important facts regarding notices for exclusing liability?

Answer 31

This is a verbal contract of deposit. The establishment must prove that their limitation of liability sign was placed in such a position that the reasonable person, on approaching the coat check, would have seen the sign before depositing their coat.

The fact that the person, after reading the sign, chose to leave his/her coat at the coat check, is considered proof that the person tacitly accepted the limitation of liability clause as one of the terms of the contract of deposit.

Naturally, the coat check operator would not be protected from actions which the court felt were grossly negligent or which resulted from intentional fault. If the coat check operator left his/her post, and during his/her absence, a coat was stolen, the establishment would be liable. A contract of deposit implicitly requires the establishment to supervise the coats at all times

Question 32

Do notices of warning automaticaly exempt the debtor from liability?

Answer 32

signs warning of danger do not automatically exempt the debtor from liability. The presence of such a sign may raise the issue of contributory negligence on the part of the victim

Example: a homeowner posts a sign saying “no trespassing, beware of dog”. A person trespasses on the property, after seeing the sign and gets bitten by the dog. Depending on the facts of the situation, the court might hold both the dog owner and the trespasser liable. If the trespasser if an adult, the court might even hold the trespasser 100% liable for his own injuries, since he should have known better. If the trespasser is a young child, the courts might hold the dog owner 100% liable if the court feels that the dog owner was negligent in leaving his dog unattended on his property known that children regularly cross this property as a shortcut on the way to school

Question 33

whats contributory negligence?

Answer 33

Contributory negligence is the principle that determines to what degree the victim is liable (partially or 100% liable) for his/her own injury

Question 34

Whats apportionment of fault?

Answer 34

to what degree your own injuries caused by your fault? To what degree is the victim liable?

Question 35

is the debtor liable for aggravation of the injury?

Answer 35

a person (the debtor) is liable for the direct damages that they have caused to another. The debtor is not liable for any aggravation (increase) of the injury caused by the fault of the victim

Example: I break a window in your house. You know the window is broken but you do not fix it for two months. During those months, rain pours into your house through the broken window, damaging your floors and walls. I am liable for the cost of repairing your window, but I am not liable for the damages to your floors and walls

Question 36

When are punitive damages available?

Answer 36

punitive damages are only available under Quebec Law where a specific statute authorizes them. Punitive damages are not a general recourse available in all cases of breach of contract or civil liability

Question 37

If you can prove ___________ then the court may award punitive damages.

Answer 37

if you can prove that your Quebec Charter Rights have also been violated, the courts may award punitive damages

Question 38

Whats solidary (joint & several) liability?

Answer 38

where more than one person has collectively participated in a wrongful act (i.e. three people collectively smash another person’s car) the court will hold each of the debtors liable for 100% of the injuries (damages) suffered by the victim.

Question 39

In the case of solidary liability, if one debtor is sued for 100% of the amount, can they sue the other debtors o collect a fair part of the judgment value from each of them?

Answer 39

Yes.

Ex: The victim will have the option of collecting up to 100% of the judgment award from any one of the debtors, if the victim so chooses. If the victim collects 100% of the judgment from debtor #1, debtor #1 may now sue debtor #2 and #3 to collect one-third of the judgment value from each of them