Defintiions Flashcards
- What is civil law? What is tort law? Explain.
- Civil Law - The area of law concerned with the private relations between members of society
Tort Law - Where one individual sues another individual, business or government in an attempt to receive compensation for being wronged.
- Who are the plaintiff and the defendant in a tort case?
- Plaintiff - Person putting forth the claim (the person suing).Defendant - Person being sued.
- What is a Statement of Claim? Explain. Describe 4 actions that a defendant may take when they receive a claim.
Statement of Claim - The claim put forth that harm, loss or injury was caused by a defendant in originating a lawsuit.
a) Take responsibility and offer compensation b) Make a counter claim c) Deflect blame to a 3rd party d) Offer a defence in court
Explain the following types of damages that can be awarded in a civil case:
Special Damages General Damages Nominal Damages Punitive Damages
- Special – Any out of pocket expenses e.g. physiotherapy, lost wages…General - Pain and suffering, Loss of enjoyment in lifeNominal - Small award given for moral victory (no significant damages found)Punitive - Additional to other damages to punish offender
- Explain what can be done if the victim is not receiving payment after winning a civil case.
- a) Garnishment of Wages - % of paycheque goes directly to victimb) Seizing of Assets – confiscating & auctioning items of worth in order to pay victimc) Examination of Debtor – investigation of defendant’s finances and judge then determines a payment schedule
- Describe the four concepts that must be proven in a negligence case in order to find an individual negligent in an unintentional tort.
- Reasonable Person – Was the individual acting in a manner that society would generally consider normal?Foreseeable - Were the outcomes of the event in question reasonably foreseeable?Standard (Duty) of Care - Were reasonable steps taken to ensure that harm, loss, injury did not occur?Remoteness - How closely/directly linked to the harm caused were the questioned actions?
The plaintiff is responsible to prove that negligence occurred causing them harm/loss
- Explain 3 defences that are used in unintentional negligence cases.
- Negligence Defencesa) Inevitable Accident – unavoidable no matter what actions were takenb) Voluntary Assumption of Risk – plaintiff knew risk and proceededc) Contributory Negligence – both parties are declared negligent
- Explain the following:Defamation of Character
Slander
Libel
- Defamation of Character –Untrue or unjustified attacks on a person’s reputation that could cause financial issues.Slander – defamation through spoken words or gesturesLibel – defamation in a permanent form e.g. written
- Explain 4 defences that are sometimes used in defamation cases by the defendant.
- Defamation Defences:a) Truth
b) Qualified Privilege – required your opinion for your job
c) Fair Comment – right to criticize openly and honestly but done without malice
d) Absolute Privilege – make statements freely, openly and honestly in courts, inquests or judicial hearings
- What is a Commercial Host? Explain 4 measures that a Commercial Host needs to take in order to reduce liability (related to alcohol consumption).
- Commercial Host – places such as bars and restaurants where alcohol is soldMinimize liability:
Train servers on signs of alcohol intoxication
Monitor customers’ consumption
Don’t serve intoxicated customers
Arrange for taxi rides
- What is a Social Host? Do they have liability concerns regarding guests? Explain.
Social Host – Private citizens that serve alcohol in their homes
Could be found liable for damages caused by intoxicated guests if they knew the individual was drunk and planning to drive
- Describe family law.
- Family Law – Deals with relationships among family members such as husband, wife, children…
- Define marriage from a Canadian legal perspective. Describe 4 requirements for a marriage to be legally binding.
Marriage – the legal union of two persons to the exclusion of all others
Legal Requirements:
Must have mental capacity to marry
Must freely consent to getting married
Must be 16 with parental consent, 18 without parental consent
Cannot marry someone closely related to you (consanguinity – blood relationship)
- Explain the following terms: Annulment, Divorce & Separation
Annulment – a court order stating that 2 spouses were never legally married due to lack of an essential marriage requirement
Divorce - a process that legally ends a marriage Separation – step between marriage and divorce
- Explain what an Alternative Dispute Resolution is and 3 reasons why they are used.
Alternative Dispute Resolution - A method of resolving a dispute besides using the court system (litigation)
Advantages:
Less expensive than litigation
Faster than litigation
May produce a fairer result (win/win)
- Describe the following ADR’s:Negotiation
Mediation
Arbitration
Negotiation - parties communicate with each other to come to their own resolution
Mediation - a selected 3rd party guides/counsels parties to make their own decision Arbitration - a selected 3rd party listens to facts/arguments from both sides and makes a binding decision
Explain the following items:
Small Claims Court Balance of Probabilities Class Action Duty of Care
Small Claims Court – low level civil court for claims under $35000
Balance of Probabilities – the basis on which civil cases are decided (more likely) Class Action – single legal action on behalf of many members of a group Duty of Care – a legal obligation to not harm other people or their property
- Briefly describe the 3 main types of intentional torts.
) Trespass to another person - Assault & Battery
False Imprisonment
Negligent Investigation
b) Trespass to Land - entering or crossing another person’s land without permission c) Nuisance - involves one person’s unreasonable use of land interfering with the use and enjoyment of adjoining land
- Briefly describe 6 common defences for Trespass cases.
- a) Consent – the plaintiff willingly consentedb) Self-Defence – reasonable force to prevent personal injuryc) Defence of Others - aid to someone in immediate dangerd) Defence of Property - reasonable force to eject intruderse) Legal authority -some individuals (e.g. police) may legally act in ways others cannotf) Necessity – necessary to trespass due to circumstances
- In cases involving motor vehicle accidents, to whom does the burden of proof usually rest with? Briefly explain the responsibility that a driver has to their passengers’ safety and seatbelt usage.
Once it is proven that the plaintiff was hit the burden of proof shifts to the defendant.
Passenger Safety - Voluntary assumption of risk by passenger unless there is danger (e.g. faulty brakes) that the plaintiff was unaware of Seatbelts - Drivers have a duty of care to child passengers (ensure they are wearing their seatbelts)
- Explain the concept of vicarious liability.
- Vicarious Liability - When one person can be held responsible for another’s tort even if they have done nothing wrong (e.g. someone causes damage using your car that you lent them, you could be liable)
