Civil liability Flashcards
what is civil liability?
civil liability is a non-contractual liability. It is a breach of your duty not to cause injury to others.
whats the damage assessment for contractual and non-contractual liability?
bodily, moral and material damages
Liability can either be _____ or _____
contractual or non-contractual
whats contractual liability
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
What are the 3 degrees of fault
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)
In order to be liable under non-contractual liability the creditor must show that the
- the debtor has commited a fault and
- that the debtor is endowed with reasons
what does endowed with reasons means
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
whats the minimum age for criminal liability
12 years old
Examples of Vicarious Liability:
- Liability of employer
- Parental authority
- Custody of a minor
- Tutor or curator
- Custody of a thing
- Owner of an animal
- Ruins of an immovable
In the case of vicarious liability for an employer, when are they liable for their employees?
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
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
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
For the custody of a minor is it apprehended in the same approach as the parental authority in regards to Vicarious liability? (indirect liability)
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….
How is vicarious liability (indirect liability) apprehended in the case of a tutor/curator?
(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
If babysitters are working gratuitously can they be held liable?
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
How is vicarious liability (indirect liability) apprehended in the case of an owner of a thing?
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
How is vicarious liability (indirect liability) apprehended in the case of an animal owner?
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
Is the person making use of the animal also liable along with the owner?
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
How is vicarious liability (indirect liability) apprehended in the case of ruins of an immovable?
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
Concerning product liability, whats the manufacturer’s liability?
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
Can the customer sue either the manufacturer or seller?
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)
Whats an example of the defense of special knowledge in case of product liability?
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
The defense of special knowledge is a defense for _________
Manufacturers.
Whats the defense of special knowledge
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.
What are examples of limitations of liability?
- Superior Forces
- Good samarithan legislation
- Whistleblowing
- Waivers
- Notices excluding liability ( posted sign that states that the establishment will not be liable for any loss)
- Notices of warning
for the good samarithan legislation, you wont be held liable if you cause additional injuries to someone while helping them unless…..
unless the court finds that the injuries you caused are due to your gross negligence or intentional fault
Civil liability (CCQ 1457) encompasses 3 degrees of fault:
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)
Can injuries caused through gross negligence or intentional fault could conceivably lead to criminal charges in addition to a civil lawsuit for damages?
Yes.
Does a Waiver excludes all 3 degrees of fault found under civil liability?
Yes
can one give up their rights to sue for bodily or moral injury?
No. CCQ 1474 expressly states that one may not given up (waive) their rights to sue for bodily or moral injury
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.
True. However it will only protect the operator from being sued for material damage caused by the negligence of the operator/employees/agents.
what are important facts regarding notices for exclusing liability?
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
Do notices of warning automaticaly exempt the debtor from liability?
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
whats contributory negligence?
Contributory negligence is the principle that determines to what degree the victim is liable (partially or 100% liable) for his/her own injury
Whats apportionment of fault?
to what degree your own injuries caused by your fault? To what degree is the victim liable?
is the debtor liable for aggravation of the injury?
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
When are punitive damages available?
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
If you can prove ___________ then the court may award punitive damages.
if you can prove that your Quebec Charter Rights have also been violated, the courts may award punitive damages
Whats solidary (joint & several) liability?
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.
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?
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
