Study 6 - General Legal Principles

Question 1

Explain proximate cause

Answer 1

• The negligence of the defendant must be the effective or proximate cause of the injury
• I.e there must exist and UNINTERRUPTED UNFOLDING of events, from the initial act to the conclusion, without the intervention of another cause

Question 2

What legal principle did Scott v. Shepherd [1773] 96 Eng. Rep. 525 establish?

Answer 2

PROXIMATE CAUSE:
Defendant threw lighted FIRECRACKER into a crowded market.
Firecracker fell onto a stall.
Occupier threw it away to avoid danger.
It fell on to another stall.
It was thrown away again.
Eventually firecracker exploded and caused injury to the plaintiff.
- Defendant held liable because it was their initial action which set off the string of events causing the damages.

Question 3

What legal principle did The King v. Laperriere, [1946] SCR 415 uphold?

Answer 3

PROXIMATE CAUSE:
The Canadian Army abandoned explosives on a site where children found them.
Children set the off, hurting themselves in the process.
Court held the Army (the King) was liable, because
It was forseeable that abandoning explosives could cause injury

Question 4

What issue was upheld in the case of Beaudoin v. TW Hand Fireworks

Answer 4

INTERVENING CAUSE - BREAK OF CHAIN OF EVENTS:
Defendant (TW) unknowingly left a pyrotechnic stick unexploded and children found it.
Father of the children confiscated it. And gave it to an employee to dispose of it.
Employee exploded it and caused injury to the children.
The defendant was found not liable. Though their negligence started the process, the chain of events was interrupted by the father and the employee.
Were it not for their negligence nothing would have happened.

Question 5

What are Joint Tortfeasors?

Answer 5

Joint Tortfeasors are when two or more people commit a tort when acting together.
The negligence is shared.

Question 6

Which joint tortfeasor is responsible for settling with the plaintiff?

Answer 6

This is up to the plaintiff. The plaintiff may choose basing the decision on who is better able to pay.
That defendant then must pursue the other obligors for a contribution to their share of the liability.
This is common in COMMON LAW negligence cases
This is JOINT AND SEVERAL LIABILITY

Question 7

What is Solidary Obligation in Quebec (CCQ Article 1526) similar to?

Answer 7

Joint and several liability. The plaintiff may decide who to collect indemnity through and the defendants must work out between themselves the distribution of damages.
The law provides that courts may determine the contribution owed by each of the parties at fault.

Question 8

Explain Vicarious Liabilty

Answer 8

Being held liable for the actions of others

Question 9

What are the various relationships of Principal and Agent Relationship in a Liability Lawsuit?

Answer 9

Principal and Agent - an agent works on behalf of a principal.
- Mandator and Mandatary (Quebec)
- Master and Servant/Employer and Employee
- Independent Contractors
In common law the principal is responsible for the agents actions.

Question 10

Agency can be created in four (4) ways, how?

Answer 10

Contract - through contract. Explicit. Liability depends upon the agreements in the contract. Principal bound by express authority of contract but also apparent authority that arises from the operation of the contract.

Ratification - when there is no expressed contract but the principal acquiesces or by some positive act demonstractes acceptance and approval of the agent’s actions.

Estoppel - applies to the law of agency when a principal tacitly agrees to allow somone to act as an agent on a matter where no authority has been given.

Necessity - If urgency of the situation requires the actions of an agent, a principal/agent relationship can be established

Question 11

Explain the Mandator and Mandatary relationship

Answer 11

Similar to a Principle and Agent relationship. The mandatary is agent in the relationship. The mandatary is the one who acts on behalf of the Mandator. The mandatary cannot act beyond the authority expressed or implied in a contract.
The mandator is liable to third parties for all obligations contracted by the mandatary.

Question 12

What legal principle does the case Lockhard v. Canadian Pacific Ry. Co., [1941] SCR 278, 1941 CANLII 5 (SCC) explain?

Answer 12

The Master and Servant/Employer and Employee relationship.

Employee was using personal automobile while doing a company business. Even though using his personal automobile was not permitted. Employee was in an auto accident; caused TP injuries. The court decided the employer was responsible for the actions of the employee.

Question 13

Describe “A frolic of ones own”

Answer 13

This is when an employee abandons their work, uses an employers time to do something unrelated to their job, and negligently causes damages.

If an employer is held liable for the torts of an employee, the employer may sue the employee.

IF the employee contracts out their duties without authorization the employer will not be liable for any damages caused by this third person.

Question 14

In a Contractor and Subcontractor role, where is liability assigned?

Answer 14

A general contractor is responsible for the liability of the subcontractor.
An independent contractor assumes their own liability. The client does not assume liability for the independent contractor.

Question 15

What are three exceptions to a general contractor not assuming liability for work being done?

Answer 15

• When the work being done is dangerous (blasting)
• When the work being done is unlawful
• When the principal interferes with the contractor

Question 16

What legal principal is highlighted by the legal case “Davie Shipbuilding Ltd. et al. v. Cargill Grain Co. Lt.d et al., 1977 CanLII 167 (SCC), [1978] 1 SCR 570?

Answer 16

The legal principal of INTERFERENCE

When a principal gives instructions on how a job is to be done, the PRINCIPAL WILL BE LIABLE FOR THE CONSEQUENCES.

Cargill was the principal. Cargill (Principle) told Cobra (contractor) how to construct a marine tower. Cargill was a knowledgeable owner with technical expertise far superior to that of the contractor.

The contractor expressed concern over the design and brought this to the attention of the Principle.

Foundation and Davie were also sued in this doe to collapse of the warehouse. The plans were designed by Cargill and were imposed upon the consulting engineers.

Question 17

What is Feasance and the categories of negligence related to feasance?

Answer 17

Feasance is the “performance of an act”. A legal term for doing or accomplishing something.

Misfeasance - the improper performance of something that is legal to do.

Nonfeasance - the omission to perform duties which by law one is found to do. The failure to perform an act required by law.

Malfeasance - An intentional act which in itself is unlawful or wrongful, and is conducted by someone in an official capacity

Question 18

What legal principal does the case Norwell v. Toronto (1925), 28 OWN 224 (Ont. HC) illustrate?

Answer 18

Nonfeasance. Norwell advised Toronto orally within the prescribed time.

Keywords: Municipality, Nonfeasance, Limitation Period

Question 19

Laurentide Motels Ltd. v. Beauport (City), [1989] 1SCR 705, 1989 CanLII 81 (SCC)

Answer 19

similar to Kamloops (City of) v. Nielsen
Municipality not legally liable for policy decisions.
When municipality acts within its operatorion sphere of its discretionary powers (i.e. executes its policy decision), it becomes subject to civic law standards of conduct

Question 20

What do the following three cases have in common:

• United Motors Services, Inc. v. Hutson et al.
• Ross Southward Tire v. Pyrotech Products
• Commonwealth Construction Co. Ltd. vs. Imperial Oil Ltd. et al?

Answer 20

They all discuss facets of tenant liability and subrogation against tenants.

United Motors - held that as the tenant did not pay a portion of the insurance premium held by the landlord, subrogation against the tenant was permitted

Ross Southward Tire - The landlords fire insurance could not subrogate against the tenant as the tenant was paying a part of the premium.

Commonwealth Construction - subcontractor can be held liable for negligence even though the subcontractor is insured under the property policy covering the project.

Question 21

Describe two instances when class action may be brought:

Answer 21

1. ) each member of the class as the same interest in the subject matter of the litigation
2. ) The claim is against a discernible fund or an asses existing for the benefit of the class. Must then determine the right of the plaintiff to the asset and the right of each members to a part of the total class entitlement

Question 22

What are the three main points of the Act Respecting Class Actions?

Answer 22

1. ) Prior authorization of the Superior Court must be obtained. The plaintiff members must prove they have a common interest. The court must agree that the members of the class represent the class adequately
2. ) Every final judgement is binding upon members who have not requested exclusion from the group.
3. ) Judgement orders the debtor to either deposit the amount with the court or to carry out the process in another appropriate way

Question 23

Describe how Limitation Periods work

Answer 23

• Limitation period means the period in which a person can bring a lawsuit against another person for injuries. Typically after the period is over a lawsuit cannot be brought against another.
• Limitation periods may begin after the date of occurance. However more likely the period begins when the conduct is discovered as it may
• Limitation periods vary widely depending on circumstances and the statutes governing a particular claim.
• WITH CHILDREN the limitation period begins when they reach the age of the majority

Question 24

Judgement Interest is

Answer 24

Interest accruing on money owed for damages which accrues from

• the event that gave rise to the damages, to
• when the victim receives the money

Pre-judgement - date of damages to date of judgement
Post-judgement - date of judgement to date money was paid