Flashcards in PowerPoint 3 Part 2 Deck (122):
Occupiers' Liability is the opposite of ___.
Liability arising from status as occupier of premises.
Under the occupiers' liability, the occupier has the duty of ___ ___ for all visitors.
There are exceptions to occupiers' liability for ___ ___.
Duty under the occupiers' liability can be modified by ___ ___.
The ___ is liable for failure to repair under lease.
Is the owner of the property the one who is always liable for occupiers' liability?
No, it is the one who controls the property.
Child trespasses on your property to swim in your pool, and hurts themselves. Do you have a responsibility?
Yes, you have some responsibility to put up a fence, cover the pool, etc.
Is setting up traps for a burglar a violation of a tort?
No, you are not meeting the minimum duty of care.
Commercial Host Liability
Only serve patrons a certain amount of alcohol, call cabs for them. Still have duty of care.
What is the most common case of social host liability?
Why do bars have a higher occupiers' liability?
Because they serve alcohol to patrons who are paying customers.
As a homeowner, you have a higher responsibility if you ___ the consumption of alcohol.
Interfering with someone's use and enjoyment of their property.
Nuisance can only be claimed if there is ___ interference.
What are the relevant factors in nuisance?
- Nature of neighbourhood.
- Time and day of interference.
- Intensity and duration of interference.
- Defendant's motivation.
Bullets fired across the property. Is this a trespass or a nuisance?
Examples of nuisance:
Which tort has been used for social utility in the context of environmentalism?
What are possible remedies for nuisance?
- Compensatory damages to repair losses.
- Injunction to prevent future losses.
- Social utility factor to keep something going (most people in town work at factory).
Rylands v. Fletcher
Mill owner constructed a reservoir on their land. The water broke through and flooded neighbouring lands.
What is the rule imposed in Rylands v. Fletcher?
Strict liability, the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril.
What must the plaintiff prove in Rylands v. Fletcher?
- Defendant's non-natural use of land.
- Creation of special danger.
- Escape from defendant's land.
- Loss or injury to plaintiff.
Plaintiff need only prove the act, and not the intent to do damage by the defendant.
It is ___ to prove a claim under Rylands v. Fletcher than in other torts.
With strict liability, you only need to show ___ ___.
Actus reus. Not mens rea. For example, speeding tickets.
Defences to strict liability claims:
- Plaintiff consented to non-natural use.
- Unavoidable act of God or third party.
Aggressive Competition vs. Fair Play
It is fair for a business to move in next to another business. However, you cannot try to hurt their reputation (as opposed to promoting yourself).
When does defamation apply?
When the plaintiff shows that the defendant is intentionally or negligently damaging his or her reputation by making harmful statements about the individual that they knew to be false.
Defamation must involve the harming...
The reputation of a living human being.
- False statement that damages a persons reputation.
Defamation that is written down.
Defamation that is spoken.
Both libel and slander need to be disclosed to a ___ ___, not only to the person themselves.
Defamation must be ___ or ___ disclosed to a third party, damaging their reputation using harmful untruthful statements.
You can have negligent defamation when...
You accidentally include someone in an email.
Can defamation apply to corporations?
Does defamation have to be a false statement?
What are defences to defamation?
- Justification (truth).
- Fair comment.
What is the justification (truth) defence to defamation?
What you said was true, you cannot sue just because something is harmful or hurtful. It also needs to be false.
What is the privilege defence to defamation?
Settlement and client privilege. What you said to that person is said in confidence. Spousal privilege, you assume what is said is not going to be breached in confidence. Expect that the other person will not share the information.
What is the privilege defence to defamation that is not restricted to relationships?
Good faith measure, tries to protect the freedom of speech. You only have protection while in a privileged location. For example, the house of commons.
What is the fair comment defence to defamation?
Tries to protect free press. Wants to defend newspapers that publish, so they can write without being scared of a lawsuit.
False statement about a business causes loss.
Libel and slander is for living people, while injurious falsehood is for ___.
Criteria for injurious falsehood:
- Defendant made false statement.
- Defendant acted out of malice.
- False statement caused loss.
Injurious falsehood is a version of defamation as it relates to...
Products and businesses.
Unlawful Interference with Economic Relations.
Reach MD vs. PMAC. Anytime someone is trying to interfere with another's opportunity to make money.
For unlawful interference with economic relations, the plaintiff must prove:
- Intent to injure plaintiff.
- Sufficient act directed toward plaintiff.
- Unlawful or illegal act.
- Economic loss.
Tort if two parties hurt another economically.
Conspiracy requires an agreement between...
Two or more parties.
Can committing a lawful act lead to a conspiracy?
In conspiracy, the defendant's primary purpose must be to...
Hurt the plaintiff.
Can you drive down your own prices to drive someone else out of business and not be committing a conspiracy?
Yes, it is only a conspiracy if you communicate with someone else.
True or false? There is a tort and crime of conspiracy.
Two people meet in back room and decide not to sign patent contract. Is this conspiracy?
No, because the primary purpose was not to hurt this person in an economic way.
Why is conspiracy rare?
Because it is hard to prove, and because people rarely act to hurt each other economically.
What must a plaintiff prove in the tort of intimidation?
- Threat to break duty in tort, contract, or crime.
- Intimidated party submitted to threat.
- Plaintiff suffered loss.
What is the difference between the torts of assault and intimidation?
Assault is threat of physics harm, while intimidation is economic harm.
What does the plaintiff need not prove in the tort of intimidation?
Defendant intended to cause loss or damage.
Interference with Contractual Relations
Disruption of contract between plaintiff and another.
Forms of interference with contractual relations:
- Direct inducement to breach of contract.
- Indirect inducement to breach of contract.
What must the plaintiff prove in direct inducement?
- Defendant knew about contract.
- Defendant intended to cause breach of contract.
- Defendant actually caused breach of contract.
- Plaintiff suffered loss.
What must the plaintiff prove in indirect inducement?
Plaintiff must prove same factors as direct inducement, plus defendant's actions unlawful in themselves.
Intentionally misleading statement.
What must be proved in the tort of deceit?
- Defendant made false statement.
- Defendant knew that statement was false.
- Defendant intended to mislead plaintiff.
- Plaintiff reasonably relied on statement.
- Plaintiff suffered loss.
Can not saying anything lead to the tort of deceit?
If you lie, can you be liable for the tort of deceit?
Deceit is a ___, rather than a ___.
Tort, breach of contract.
Tort damages look ___ while contract damages look ___.
___ ___ ___ is what needs to be established in order for a plaintiff to prove their case on a balance of probabilities.
Elements of Negligence.
Elements of Negligence
1. Duty of Care.
2. Breach of Standard of Care.
3. Causation of Harm.
Duty of Care
Between the defendant and the plaintiff. Means a sense of responsibility towards someone.
Breach of Standard of Care
The defendant acted below the appropriate standard of care based on the 'reasonable person test.'
Causation of Harm
The defendant negligence actually caused damage/harm to the plaintiff.
What is arguably the mot famous case in the common law?
Donoghue v. Stevenson (1932).
Donoghue v. Stevenson (1932)
Woman orders some ice cream in an ice cream parlour. Gets some ginger beer as well. Eats half the ice cream, and when eating the second half, finds a dead snail in the bottom of the ginger beer. Life is severely affected. Ice cream parlour says that they are not responsible because the bottling company should be responsible. Bottling company defended by saying privity of contract. Only those in a contract can sue. Courts can evolve law using precedent system. Court established new rule that even though you aren’t in a contract, you may have a duty of care.
What did Donoghue v. Stevenson (1932) determine?
What the duty of care is.
Criteria for duty of care:
- Reasonable foreseeability.
Reasonable foreseeability in duty of care:
Would a reasonable person have foreseen a risk of loss?
Proximity in duty of care:
Close and direct connection. Is it fair to hold this person accountable?
Policy in duty of care:
No general duty to rescue. No duty of care on mother to unborn child. In these situations, people can never be held responsible (duty of care).
Why is there never going to be a duty of care between a mother and an unborn child?
Slippery slope, you cannot draw the line anywhere.
Why is there no duty of care to rescue?
Because you could be putting your own life at risk. Slippery slope. How much effort should you put in to save someone?
Exceptions to no duty of care on mother to unborn child.
Car accidents and insurance companies, insurance companies have to pay for damage to fetuses.
Exceptions to no duty of care to rescue.
If you created the dangerous situation. If you took people out on a boat and did not have enough life jackets, you are at fault.
If you do engage in a rescue, can you be held liable?
Good Samaritan Act
If you engage in a rescue, you cannot be held liable for any negligence in the rescue attempt. Legislation, not common law.
Standard of Care
Determines how defendant with duty must act.
Reasonable person standard of care is an ___ test.
You must ___ or ___ the standard of care.
What is the standard of care?
Brings in the reasonable person test. Is not what an individual person thinks.
Does the reasonable person test account for what time period you live in?
Yes, it measures societal standards.
Can you break the law but not breach a standard of care?
Yes, for example speeding 10 over the speed limit.
Can someone argue that someone had the training, or they are an expert, so they should've known in standard of care?
No. It must be something that the reasonable person would know.
Does severity of loss play into the formulation of standard of care?
Yes, they check tire pressure on planes all the time, but you don't check it on your car all the time.
Formulation of standard of care:
- Likelihood and severity of loss.
- Social utility.
- Sudden peril doctrine.
Severity of loss ___ the standard of care, sudden peril situation ___ the situation of care.
What is the standard of care for people who perform specific jobs? For example, a doctor, lawyer, engineer, etc.
What would their average ordinary peer do?
Special rules that pertain to specific professions. Higher standard. Must act as reasonable professional.
Is the professional negligence standard of care an objective test?
Does the professional negligence standard of care allow for inexperience?
Does the professional negligence standard of care allow for an enhanced standard in some cases?
Yes, there is an enhanced standard for specialist or expert.
Causation of Harm
Liability (negligence) only if breach caused loss.
"But for this person making this investment, I would not have lost all my money." If it weren't for. You need to prove causation of harm. Negligence caused damage.
Causation of harm is based on...
Proof on balance of probabilities.
Do you get protection from the law if you suffer harm uniquely?
Unusual vulnerability to loss.
If some harm is reasonably foreseeable, plaintiff...
Can recover for entire injury.
If no harm is reasonably foreseeable, plaintiff...
Cannot recover for any part of injury.
Thin Skull Doctrine
You take your victim as you find them. If there was a risk of reasonable harm as a result of your actions, you are responsible for all damages.
You take your victim as you find them.
If your victim has a pre-existing condition, and you harm them further, you are liable for those damages.
Are you responsible to fix pre-existing conditions under the thin skill doctrine?
Res Ipsa Loquitur
In and of itself, some things are negligent. For example, a hammer flew out a window. The occurrence of an accident implies negligence.
Defences to negligence:
- Contributory negligence (a partial defence).
- Voluntary assumption of risk (usually with a waiver).
I am guilty, but others contributed as well.
Voluntary Assumption of Risk
Use of a waiver.
You cannot sue someone for negligence if you are doing something illegal.
Exception to Illegality
You can recover damages only for injuries that you sustained. For example, owner of car let you drive when you were intoxicated. Contributory negligence as well.
Standard in Canada for product liability is...
Negligence. You must show that something is defective due to their negligent manufacturing of a product.
Standard in America for product liability is...
Strict liability. Manufacturer is liable for any defects.