Chapter 2

Question 1

List the 3 ABC rules

Answer 1

A) a duty of care exists
B) breach of that duty occured
C) casual relationship between the breach and damages is shown

Question 2

The replacement cost clause

Answer 2

Approvision, generally in property insurance coverage, to provide a substitute of the damage or loss property with something similar, including having the same use but not necessarily identical to the property being replaced without extra cost to the insured

Question 3

Actual cash value

Answer 3

The fair market value of property, taking into account factors that might augment or reduce the value of the property in question. Actual cash value is usually calculated in one of three ways

1) cost to repair or replace less depreciation
2) fair market value
3) consideration of all relevant evidence of the value of the damaged property

Question 4

How many days does a policy allow the insurer to replace personal property ? And how long does a statutory condition give the insured from the date of the loss to take legal action against the insurer if they are dissatisfied with the settlement of a claim?

Answer 4

Question 1) 180 days

Question 2) one year

Question 5

Name a reason why underwriters need to understand general principles and characteristics of insurance policies ?

Answer 5

Not all policies will be standard ones. Sometimes, they will not even be policies of the insurer and the underwriter works for. An underwriter will often be asked to participate in a manuscript policy drafted by an outside party. The underwriter must be able to read and understand manuscript policy and be able to assess the coverage it offers to determine whether to participate in the risk

Question 6

Full in the blank: in Canada common the most important features common to the wordings offered by various insurers are reflected in policy wordings issued by _________

Answer 6

IBC

The wordings from IBC broadly reflect the industry consensus and practice in matters of coverage

Question 7

Typical liability policies have most often responded to what type of lawsuits?

Answer 7

Alleging negligence against the insured

Question 8

For a plaintiff to establish a cause of action and negligence against a wrongdoer, what elements must be present?

Answer 8

A. Duty of care must exist
B. Breach of that duty occured
C. Casual relationship between the breach and damages is shown

Therefore, each lawsuit alleging negligence must undergo an assessment to establish that a cause of action exists whether a duty of care exist towards a given plaintiff or whether that duty was breached and whether the loss should have been foreseeable by the wrongdoer. Finally we’ll see examines the damages suffered by the plaintiff to determine whether they were actually caused by the breach of that duty

Question 9

Define prima facie

Answer 9

On the face of it or at first glance

It is used in modern legal English to signify that on first examination, a matter appears to be self-evident from the facts presented. The implication is that there is sufficient evidence to prove a particular fact. When a prima Facey case has been established, the court presumes that the information is true and tell or unless evidence is introduced to the contrary

Question 10

What constitutes a reasonable person list five points

Answer 10

1. The reasonable person is not an extraordinary or unusual creature
2. The reasonable person is not superhuman
3. The reasonable person is not required to display the highest scale of which anyone is capable
4. The reasonable person is not a genius who can perform unusual feats
5. He/she is not possessed of unusual powers of foresight

The reasonable person is a person of normal intelligence who makes prudence a guide to his or her conduct. He or she does nothing a prudent person would not do and does not omit to do anything that a prudent person would do. The reasonable person’s conduct is guided by considerations which ordinarily regulate the conduct of human affairs. This conduct is the standard adopted in the community by persons of ordinary intelligence and prudence

Question 11

Define duty of care

Answer 11

The obligation that a person has to exercise reasonable care with respect to the interests of others, including protecting them from harm

Question 12

Where is the duty of care concept exercised?

Answer 12

The duty of care concept is used in tort law to consider whether defendants are obligated to conduct themselves with care towards the injured party who initiates the lawsuit.

Question 13

When does the likelihood of duty of care tend to be established tends to increase?

Answer 13

The likelihood that the duty of care will be established tends to increase in relation to the seriousness of the threat of harm

Question 14

Explain duty to your neighbor principal

Answer 14

The law of negligence requires a person to compensate another for the reasonably foreseeable results of his or her negligent conduct. The law will only hold persons responsible for damage to others when it should have been reasonably contemplated that injury to another would have occurred during the conduct.

Question 15

What makes the donoghue versus Stevenson case unforeseeable? Why is this case so important in case law?

Answer 15

The bottle holding the ginger beer was made of a non-transparent material. Once the bottle was sealed, the contents were not visible. It was not reasonable to expect that anyone between the manufacturer and the consumer could have seen the unpleasant contents of the bottle. It this was a landmark case because at the time , injured parties often relied on breach of conduct to recover damages. Because the friend (Donahue) did not purchase the ginger beer directly from the manufacturer there’s no contract between them.

Once a duty of care has been established, the courts considered the standard of care applicable to the particular circumstances.

Question 16

What is occupiers duty of care?

Who is the occupier?

Answer 16

An occupier is the person who has the immediate supervision and control of the premises and the power to admit and exclude the entry of others. Occupiers have a responsibility to keep premises safe for third parties entering the premises. Certain categories of persons have been identified over the years and having a specific duty of care under the common law

Question 17

Which 2 provinces does common loss prevail in which they do not have occupiers liability in effect? Which province had some specific legislation governing the liability of occupiers to hunters and snowmobilers, but otherwise it is governed by the common law as well

Answer 17

New Brunswick
Newfoundland and Labrador

Second half of the question is Saskatchewan

Question 18

List 4 main categories of entrants under occupiers liability

Answer 18

1. Trespasser
2. Licensee
3. Invitee
4. Contractual entrant

Question 19

What’s the responsibility of the occupier of a trespasser?

List 6 factors to consider in determining whether an occupiers duty to trespassers have been breached

Answer 19

The occupier must treat the trespasser with common humanity.

The supreme Court of Canada set out a list of factors to consider and determining whether an occupiers duty to trespassers has been breached which includes:

• gravity of the probable injury
• likelihood of the probable injury
• character of the intrusion or trespass
• nature of the premises trespassed on
• knowledge the occupier had or ought to have had of the likelihood of a trespassers presence
• cost to the occupier of preventing the harm

Question 20

What is the duty of care and occupier owes to a licensee?

Answer 20

An occupier has a duty to protect a licensee from known concealed traps or dangers. An example of a licensee is a person given permission to enter a venue, such as a concert

Question 21

Define licensee

Answer 21

A person who has permission to enter premises for his or her own purposes

Question 22

Define trespasser

Answer 22

A person who wrongfully enters into someone else’s land with neither the right nor permission to be there

Question 23

Define invitee

Answer 23

A person who is expressly or impleadedly invited onto the premises for some purpose involving economic or potential economic benefit to the occupier of the premises. For example, customer entering a store for the purpose of making a purchase

Question 24

Define contractural entrant

Answer 24

A person who enters onto premises under a contract with the occupier, for example a hotel guest or a theater goer

Question 25

Define strict liability

Answer 25

Liability imposed by a court or by a statute in the absence or fault when harm results from activities or conditions that are extremely dangerous, unnatural, hazardous, extraordinary, of normal, or inappropriate

Question 26

What duty of care does it occupier owe to an invitee?

Answer 26

The occupier owes the greatest duty of care to an invitee. The occupiers duty is to exercise reasonable care to prevent damage to such a person from unusual danger of which the occupier knows or ought to have known.

Question 27

What duty of care does an occupier have to a contractual entrant?

Answer 27

The occupiers duty to a contractual entrant is as specified in the contract. If the contract does not specify the occupiers obligations regarding the entrance safety, that contract is said to have an implied unwritten term to the fact that the premises is safe for the purpose and reasonable care and skill on the part of anyone can make them. This implied contractual term amounts to the occupiers duty to the entrant. An example of contractual occurs when someone pays to stay at a hotel for a few days

Question 28

List four points the plaintiff must show to establish a case of strict liability

Answer 28

1. The occupier used the land in a way that changed its natural form or use
2. The occupier brought something onto the land that was likely to do mischief if it escaped (potentially dangerous)
3. The escape of the dangerous thing did occur
4. The escape resulted in damage to the plaintiff

Question 29

Duty of care for Good Samaritans

Answer 29

The Good Samaritan doctrine is illegal principle that provides a defense against towards for an attempted rescue by someone who voluntarily helps a victim in distress. In the common law provinces and territories, Good Samaritan laws do not create a duty to rescue.

Question 30

Duty of care legislation

Answer 30

Most provinces and territories have enacted statute laws that govern occupiers liability. These take precedence over the common law

Question 31

Liabilityof a landlord

Answer 31

The obligations of landlords to their tenants are the subject of the landlord and tenants legislation in the common law provinces and territories. For example common landlords have a duty to keep their premises in good repair. And residential multiple occupancy structures, such as apartment buildings, landlords are responsible for maintaining all the common areas for safe use.

Question 32

Hold harmless agreement

Answer 32

An agreement that allows one party to protect another party against any future losses or claims that may result from a particular activity. Also known as an indemnity agreement

Question 33

Indemnity agreement

Answer 33

I’ve written contract entered into between indemnitor and surety in which the indemnitor secures surety against loss The surety May sustain as a result of having issued a bond for a third party or for the indemnitor

Question 34

Contractual duty

Answer 34

It is often the party with the most bargaining power who is able to request and obtain an adventurous shift of liability

Question 35

Bailor

Answer 35

A person in trusting goods to another

Question 36

Bailee

Answer 36

In contract and property law, one to whom goods or property are entrusted for a stated purpose. Can be either gratuitous or for hire

Question 37

Bailment

Answer 37

The act of placing or transferring goods from a Bailor to a Bailee

Question 38

Parents liability

Answer 38

Parents are not generally responsible for the negligence of their children unless one of which of the following situation arises

1. The child was acting on their parents Express instructions or under their authority
2. The child was employed by the parent and acting within the scope of the employment
3. Damage was caused by dangerous thing or an animal that the parents allowed the child to control, such as a motor vehicle

Question 39

Bailee duty of care

Answer 39

A Bailee owes a duty to the Bailor to take care of such property. The basis on which the property changed hands affects the level of the duty of care.

Question 40

Proving negligence based on breach of statute list 4 circumstances

Answer 40

1. The statute must have been breached
2. The conduct that was breach of the statute must also have caused the damage for which compensation is sought
3. The statute must have been intended to prevent the damage that occurred
4. The person making the claim must be among the group the statute was intended to protect

Question 41

Define remoteness of damage

Answer 41

Illegal test to determine the right to recovery based on the predictability of cause or circumstance, also called remote clause

Question 42

proximate cause

Answer 42

A cause that, in a natural and continuous sequence of unbroken by any new and independent cause, produces an event and without which the event would have not happened

Question 43

Explain foreseeability

Answer 43

Under duty of care is the consideration whether a reasonable person could foresee that the act contemplated would likely harm someone.

Question 44

List and explain the two types of damages

Answer 44

1. Special damages - these are awarded for out-of-pocket economic expenses such as medical bills, damaged clothing, and salary already lost. Special damages compensate plaintiffs for expenses they have already incurred. Generally, plaintiffs would be expected to provide receipts for any such expenditures being claimed
2. General damages - they compensate the victim for non-economic, hard to qualify aspects of a claim. Such damages require the discretion of the judge to fix the amount that will properly compensate the injured party. These damages are calculated by considering, among other factors, the pain and suffering of the injured party, loss of enjoyment of life, future expenses and future loss of salary, and permanent disability

Question 45

Define nominal damages

Answer 45

Minimal monetary damages awarded by a court when a legal wrong has occurred but limited or no actual loss has been suffered by the party pursuing the action

Nominal damages are awarded when the plaintiff has a right of action but has suffered don’t real loss. And nominal amount such as $1 may be awarded. These tend to be awarded in libel, slander, or false arrest cases

Question 46

Define punitive damages

Answer 46

Damages in Access of those required to compensate the plaintiff for the wrong done, which are imposed in order to punish the defendant because of the particularly wandan or willful nature of his or her wrongdoing period also called exemplary damages

Punitive damages are generally awarded, in addition to other damages, as a punishment to the defendant where recklessness or willful behavior is a factor

Question 47

What damages do not fall within the definition of compensory damages under the policy and therefore are not covered

Answer 47

1. Punitive damages are not covered