Blaw - Chp10&11 - Quiz

What does burden of proof mean?

The obligation of the plaintiff to prove its case.

What are the four steps in a negligence action?

1- Does the defendant owe the plaintiff a duty of care? 2- Did the defendant breach the standard of care? 3- Did the defendant's careless act (or omission) cause the plaintiff's injury? 4- Was the injury suffered by the plaintiff too remote? If not, the plaintiff has proven negligence

Name two areas where strict liability is common

1- Liability in contract 2- Vicarious liability

Give an example of a tort

1- Trespass to land 2- Deceit or fraud 3- Negligence

What does the term "tort" mean?

A harm caused by one person to another, other than through breach of contract, and for which the law provides a remedy.

How is causation usually determined in negligence?

Courts generally ask the following question: would the harm not have occurred but for the defendant's actions?

Under what circumstances might an injunction be awarded in tort?

An injunction is a court order requiring or prohibiting certain conduct. An injunction would be ordered if money would not suffice.

Is the commercial host liable if one of its patrons is injured because of the patron's own impaired driving? Explain.

Commercial establishments serving alcohol owe a duty of care to impaired patrons to assist them or prevent them from being injured.

Why is strict liability rare in Canada's tort regime?

Given that Canadian tort law is founded on a fault-based system, the scope of strict liability is necessarily limited.

What kinds of plaintiffs will be likely to succeed in an action for negligent misstatement against a professional?

If the plaintiff relied in a reasonable manner on those careless words and suffered damages as a result, those losses are recoverable subject to one large proviso.

What is the difference in the way tort and criminal actions are initiated?

In criminal law, the legal action is called a prosecution and is brought most often by Crown prosecutors employed by the federal or provincial government. In tort law, the injured party brings the legal action.

What does contributory negligence mean and what are the consequences of it being found to exist?

It refers to unreasonable conduct by the plaintiff that contributed - or partially caused - the injuries that were suffered. If the plaintiff is found to have been part author of his own misfortune, provincial legislation will then come into play. Through this mechanism, the plaintiff's damages award is then reduced in proportion to his own negligence.

Explain the difference between pecuniary and non-pecuniary damages

Non-pecuniary damages consists of compensation for pain and suffering, loss of enjoyment of life, and loss of life expectancy. As for pecuniary damages ($), it consists of compensation for out-of-pocket expenses, loss of future income, and cost of future care.

When is overlapping liability in tort and contract common?

Overlapping liability in contract and tort is also common when a professional - such as an accountant, lawyer, or banker - gives advice to a client. If that advice is incompetent, the professional is in breach of contract and has committed the tort of negligence.

What are punitive damages? How are they different from aggravated damages?

Punitive damages are awarded to punish the defendant for malicious, oppressive, and high-handed conduct or where the defendant might otherwise profit from the behaviour. On the other hand, aggravated damages compensate the plaintiff for intangible injuries such as distress and humiliation caused by the defendant's reprehensible conduct.

What area of law other than tort law do product liability actions often involve? Why are actions in that area often more straightforward than in tort law?

Product liability cases often involve contract law. Actions in contract law are more straightforward than in tort law because liability for breaching a contractual term is strict.

How does the burden of proof differ between a criminal case and a tort action?

The Crown has the burden of proof in a criminal action. This means that the prosecutor must prove all the elements of the offence beyond a reasonable doubt based on "reason and common sense". In tort, by way of contrast, the injured party must prove that the defendant is responsible for the assault and battery, on the balance of probabilities.

How does contributory negligence affect the amount of damages a plaintiff may receive?

The amount of damages that the plaintiff is awarded is reduced by the proportion for which the plaintiff is responsible.

What might be a defence to a claim for vicarious liability?

The court must decide whether there is a "significant connection" between the conduct authorized by the employer and the wrong committed by the employee to justify making the employer vicariously liable.

What is the standard of care in negligence?

The law imposes a standard of care on manufacturers in relation to the design, manufacture, or sale of their products. (Product liability; liability relating to the design, manufacture, or sale of the product).

What is the consequence of a volenti non fit injuria finding?

The plaintiff will be awarded nothing by a judge even though the defendant has been negligent.

What is the purpose of damages in tort?

The primary goal of a tort remedy is to compensate the victim for loss caused by the defendant.

The goals of tort and criminal law are quite distinct, even when they stem from the same event. Explain the differences.

The purpose of a criminal prosecution is to censure behaviour and secure the punishment of a fine, imprisonment, or both. In tort law, on the other hand, the objective is to compensate the victim for the harm suffered due to the culpability of another.

What is the thin skull rule? Give an example of when it would apply. How does the thin skull rule protect the plaintiff?

The thin skull rule is the principle that a defendant is liable for the full extent of a plaintiff's injury even where a prior vulnerability makes the harm more serious than it otherwise might be. This rule protects the plaintiff who has an inherent weakness or "thin skull" that makes a given injury more serious than one might otherwise reasonably anticipate.

What is the difference between the tort of assault and the tort of battery?

The tort of assault involves a threat of imminent physical harm without there being any actual physical contact. On the other hand, battery is intentional infliction of harmful or offensive physical contact.

Give an example of when the defence of volenti non fit injuria might be applied

To succeed on this defence, both parties must understand that the defendant has assumed no legal responsibility to take care of the plaintiff and that the plaintiff does not expect him to.

What are the two main categories into which torts are organized?

Torts committed intentionally and torts committed through negligence.

What is a joint tort-feasor?

Two or more persons whom a court has held to be jointly responsible for the plaintiff's loss or injuries.

Vicarious liability is an essential feature of modern tort law. What is it?

Vicarious liability is the liability that an employer has for the tortious acts of an employee committed in the ordinary course or scope of employment.

Does tort law generally allow recovery for pure economic loss?

What tort law traditionally is reluctant to permit is recovery for pure economic loss, that is, loss that is only financial and involves no personal injury or property damage to the plaintiff. When a person not in a contractual relationship causes someone else to suffer a financial detriment only, such a loss is generally not recoverable. It is only in a relatively few areas, such as negligent misstatement, that a plaintiff can recover for pure economic loss.

How are pecuniary damages typically calculated?

When calculating pecuniary damages, courts look at three categories; 1- Cost of future care (personal care attendant, costs related to equipment and treatment of condition) 2- Loss of future income (labour economists, accountants, and actuaries) 3- Special damages (out-of-pocket expenses) (ambulance costs, medication costs)

How does the foreseeability test help in defining the neighbour principle in negligence?

You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who is your neighbour? persons who are so closely and directly affected by your act that you ought reasonably to have them in contemplation as being so affected when you are directing your mind to the acts or omissions which are called in question.