Chapter 4 content Flashcards Preview

Insurance and the Canadian Law > Chapter 4 content > Flashcards

Flashcards in Chapter 4 content Deck (19)
Loading flashcards...
1

What is the purpose of tort law?

- compensate victims for harm caused by the activity of others
- identifies a set of circumstances that creates a right to claim compensation
- is 1 way of apportioning loss, along with other approaches (ins. & gov plans)

2

What principles does today's tort involve?

1) fault of defendant
- was behaviour improper?
2) causation of harm
- was injury a result of defendant's conduct?

3

Describe fault (basis for liability)

- refers to blameworthy or culpable conduct
- in the eyes of the law is unjustifiable because it intentionally or carelessly disregards the interests of others
- may used as a deterrent to others

4

Explain strict liability.

- only remains in a few areas of modern law
- usually seen with inherently dangerous activities, regardless of the amt of care taken
- most often imposed by legislation in Canada

5

What are the 2 reasons vicarious liability is in place?

1) although employee is personally liable, employees often have limited assets available to pay compensation

2) the person who makes the profit from an activity should also be liable for any loss

6

What 2 categories can tort be split into?

1) intentional tort
2) unintentional tort

7

Explain and list the torts found under intentional torts.

- where activity is done deliberately, not by accident
- harm/damage must occur for any tort to be actionable

1) assault & battery

2) nuisance
i) public nuisance
- includes actions such as blocking a public road, interfering with use of public amenities, or emitting dangerous substances in public places
ii) private nuisance
- protects an occupier's right to reasonable use & enjoyment of his own land without substantial interference from direct/indirect activity on neighbouring prop
- action usually brought by gov or agency on behalf of public as a whole

- can take 2 forms:
a) where nuisance causes actual physical damage to prop/its occupiers
b) amenities nuisance
- where nuisance interferes with use of amenities of prop
- substantial and unreasonable

3) false imprisonment & malicious prosecution
- unlawfully restraining/confining another person
- not necessary that physical restraint is involved (shouting stop thief is enough)
- false arrest normally includes a false imprisonment but has additional feature of holding victim with the intention of turning him over to the cops
- false complaints can attract liability for malicious prosecution if there is no honest belief that crime was committed

4) defamation
- consists of false or insulting statement that causes injury to the private, professional, or business rep of another person
i) libel
ii) slander
- courts will only award damages if plaintiff can prove that defendants remarks would discredit plaintiffs rep in the mind of an ordinary person
- require publication
- onus is on defendant to prove truth of statement
- words spoken parliament debate, law courts, before royal commissions subject to absolute privilege
- prov libel and slander legislation give journalists a fair comment defence when they have researched and offered a reasonable opinion and believe it to be true

8

What 2 main issues must courts balance when dealing with public nuisance?

1) degree of interference with occupiers use and enjoyment of land
2) economic importance of the offending activity

9

What are the elements of malicious prosecution?

1) unsuccessful charges against plaintiff

2) initiated by defendant

3) without reasonable and probable grounds

4) with malice or other improper purpose

10

What is considered an unintentional tort?

- involves behaviour that is not done deliberately or on purpose
1) negligence
- most common basis for legal actions in tort
- best illustrates the fault theory of liability

11

What are the 4 elements that must be proven in order to recover compensation for negligence?

1) defendant owed a duty of care
- plaintiff must be able to show that defendant owed him a duty of care
i) closeness of relationship between plaintiff & defendant
- to see if it was reasonable foreseeable that defendants conduct would cause harm to plaintiff
- parties must have direct or connecting link
ii) consider policy concerns
- mostly for breach of duties
- if both proximity & foreseeability exist then a duty of care is owed

2) standard of care
- focuses on behaviour of defendant
- defendants conduct is compared to the level of care that a person should take in the circumstances
- if defendants conduct falls short, he has breached the S of C
- defendant need not take "all" care, but reasonable care

3) Damage to plaintiff
- focuses on harm/injury actually suffered
- damage/loss always a requirement of tort liab if comp. for loss is its goal
- reactive, not preventative
- can take the form of physical and mental injury, prop damage to land/goods, economic loss

4) causation of damage
- focuses on strength of connection between harm suffered & behaviour of defendant
- basic test used is "but for" test (but for the negligent action of D, injury would have not occurred)
- if "but for" does not establish causation, can use "material contribution" test
- this test finds causation when type of injury is that for which the behaviour of the D created an unreasonable risk & would offend notions of fairness to deny recovery

12

Describe remoteness of damage.

- all damages resulting from neg act will not necessarily be compensated
- even when a person is considered to have factually caused injury, he may not be considered to have legally caused the injury if it is too remote (or unrelated to cause injury/harm/damage)
- type of damage must be reasonably foreseeable

13

What is the thin skull doctrine?

- allows injured plaintiff to recover all of his damages even though they may be much greater than an ordinary plaintiff would have suffered
- if this damage is considered reasonably foreseeable, the court will compensate victim for actual damages

14

Explain the defences to negligence.

PLAINTIFFS OWN CONDUCT
- plaintiff has a duty to act reasonably and quickly after a loss has occurred to minimize extent of damage suffered
- courts will apportion damages according to respective degree of responsibility of all parties

VOLUNTARY ASSUMPTION OF RISK
- a defense to a neg act when the plaintiff was aware of the risk and continued with the activity anyway
- defendant will not be found liable
- exact risk must be described or defense is not applicable

15

Explain product liability.

- one of the most important business law torts
- involves liab of manufacturers for injury/loss by defects in their products
- buyer of defective goods may always sue vendor for breach of contract (but buyer may not always be injured party)
- product liab incorporates 4 elements of negligence
- circumstantial evidence principal can be applied so that manufacturers can be found liable
- the plaintiff need only to prove that the uncharacteristic malfunction of product caused injuries

16

Explain inherently dangerous products.

- still falls under product liab
- courts have ruled that manufacturers owe a duty to consumers to give proper warning of known dangers
- a plaintiffs claim is based on a breach of duty to warn must show:

i) duty was owed & warning was deficient
ii) had a proper warning been given, she wouldn't have used the product or used it in the way she did
( failure to warn influenced her behaviour, which caused the injury.)

17

Explain occupiers liability.

- another important business law tort evolving from negligence
- this tort involves 4 elements of negligence
- duty of care owed to all expected visitors lawfully on premises
- occupier must take care to prevent harm from hazards/dangers that he is aware of or should have been aware of on his land
- legislation has codified reduced S of C for trespassers as they are deemed to assume the risk
- can't set traps and warning signs are required
- highest duty is owed to invitees and lowest to trespassers

18

List the negligence torts checklist.

Elements to prove negligence:
1) duty of care was owed
2) applicable standard of care is breached
3) plaintiff suffers injury/damage
4) defendant's conduct caused damage

Other types of negligence that have been refined to adapt to common situations:
1) product liability for defective products causing injury
2) duty to warn for inherently dangerous products
3) occupiers liability for injuries on land

Defences applicable to negligence actions include:
1) contributory negligence
2) voluntary assumption of risk
3) failure to mitigate damage

19

Describe the use of remedies.

- an award of a sum of $, known as damages, to compensate for physical/economic loss

Tort law damages classified into 2 categories:
i) special damages
- to compensate for quantifiable injuries
- monetary, pecuniary items

ii) general damages
- damages to compensate for injuries that cannot be precisely expressed in monetary terms
- aka pain & suffering

iii) punitive/exemplary damages
- insurance contract does not provide
- may be awarded in rare cases such as deliberate libel or malicious prosecution
- damages awarded with the intention of punishing wrongdoer