Module 8 (5 & readings) Flashcards
What type of torts occurs if the defendants actions were neither intended or negligent
Strict Liability torts
What is Vicarious Liability?
A type of ‘strict liability torts’ that describes the responsibility that one person may have for the torts of another because of their relationship
Vicarious Liability requires no proof of personal wrongdoing by the defendant, but the plaintiff has to show what?
that a particular relationship exists between the defendant and the person who committed the tort
eg. employer and employee, if an employee harms someone, the employer might be vicariously liable for the employees acts
What 2 things does Vicarious Liability NOT do?
1) dismiss the personal liability of the peron who actually committed the crime
2) exclude the liability of an employer for the breach of a duty owed to the plaintiff
What is the “Rationale” for the employer and employee situation
The employer should bear the responsibility for the damage (even if they didnt cause it) becasue the employers enterprise has put the risk into the community
What 3 elements of Vicarious Liability does the plaintiff have to prove?
1) There must be a tort
2) The person commiting the tort must be an employee of the defendant, not an independant contractor
3) The tort must be committed in the course of employment (there has to be a connection between the wrongdoing and the employment relationship)
Explain the case of ‘Lockhart v Canadian Pacific Railway Company
A carpenter used his own uninsured car to travel during his employment.
His employer prohibited employees from using uninsured vehicles, but didnt prohibit them from using their private vehicles.
The employee injured the plaintiff during a trip and the plaintiff sued the employer.
The court found the employer vicariously liable to the plaintiff.
Why was Mrs. Malette suing Dr. Shulman for the intentonal tort of battery in the Case: Malette v Shulman et al
Because he gave her a blood transfusion when she had a card saying it was against her reigious beleifs
Since Mrs. Malette was unconscious, in what two ways did Dr. Shulman receive the
informaton that she was opposed to blood transfusions?
By the card in her purse and by her daughter
Why is a medical procedure without consent considered battery?
A physical act performed without consent is considered battery, it may be harmful or offensive, in this case, offensive
Can a patient refuse critical medical treatment like a blood transfusion? Why or why not?
What values and interests underlie this issue and how did the court resolve them?
Yes they can because individuals have the right to make decisions about their own medical care, including refusing treatment, even if that decision could result in death.
Was the doctor found liable for the tort of battery?
Yes he was,
