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62 Cards in this Set
- Front
- Back
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What word equates to the term "responsibility" as it is used in the insurance industry? |
Liability |
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What is Liability? |
Legal Responsibility Arising From: 1.) Actions 2.) Ownership of something 3.) Use of something |
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What is Liability Insurance? |
-Compensates the victims for injuries or damages caused by the insured. -Protects the insured provided -The insured is legally liable. -Damages or injury has been caused -The activity is covered under the policy. |
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What are the three categories used to organize the study of how the law may impose liability? |
-Negligence -Breach of Contract -Nuisance (Public and Private) |
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What is a tort? |
-A civil wrong or injury recognized under the law, other than breach of contract. -Courts will permit actions and award compensation. |
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What is a breach of contract? |
When a party to the contract fails to honour the terms of a contract it is considered a breach of contract. |
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Private Nuisance |
-When someone infringes on a person's right to use and enjoyment of their living area. |
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Public Nuisance |
-When someone infringes on the rights of many people. Only the attorney general may bring action for public nuisance. |
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What is negligence? |
Negligence is when a person (TORTFEASOR) or persons (JOINT TORTFEASOR) commit a civil wrong (TORT) or breach a contract against another person, causing damage or bodily injury. Negligence is the failure to act in the way a reasonable person would in the same situation. Whether it's failing to complete an act that a reasonable person would or engaging in an activity that a reasonable person would not. |
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Blyth V Birmingham Waterwork (1856) |
Definition Of Negligence: Omission to do something which a reasonable person guided upon those circumstances which ordinary regulate the conduct of human affairs, would do , or something which a prudent and reasonable person would not do. -Defendant not held liable from the busted water main the did damage during the winter season. |
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How is the reasonable person defined? |
The reasonable person is a mythical creature of law whose conduct is the standard by which the courts measure the conduct of all other persons, and find the actions proper or improper in the particular set of circumstances. |
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Arland V Taylor (1955) |
Definition Of A Reasonable Person: -Average or ordinary person. |
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What three elements must be present to establish negligence? |
-A duty of care exists -A breach of that duty occurred -A causal relationship between the duty breached and the damages. |
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What is Duty Of Care? |
Used in Tort Law to to consider whether defendants owe an obligation to conduct themselves with care towards the injured party. Duty of care is owed "to neighbours". persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. Donoghue V Stevenson (1932) |
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Donoghue V Stevenson (1932) |
Duty Of Care: -Determined who is my neighbour and who do I owe a duty of care to. -Bottle of ginger beer purchased for a friend. -Friend drank the beer and discovered the decomposed remains of a snail. -The friend sued the manufacture of product. -It was determined that the manufacture owed a duty of care to the friend who drank the beer. |
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What is a crime? |
An act against society which is prohibited by the Criminal Code of Canada. |
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What is a quasi-crime? |
Offences that are not prohibited by the Criminal Code of Canada. Ex: Speeding and other driving convictions. |
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Why does our system of civic justice impose responsibilities on people? |
It is a natural deterrent to irresponsibility in both personal and corporate acts. |
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The common law doctrine of Scienter applies to: |
Dangerous (Domestic) Animals. |
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To him that is willing there is no injury, defines the defence of:
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Volenti non fit injuria
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To be successful using volenti non fit injuria as a defence, the defendant must prove the plaintiff:
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knew of the risk and accepted it and waived any legal claim in the event of injury
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Defences Against Negligence in Common Law |
1. Denial
2. No duty owed 3. Remoteness of damage 4. Inevitable accident 5. Disclaimer 6. Emergency 7. Contributory negligence 8. Act of God 9. Voluntary assumption of risk 10. Limitation period |
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Defences Against Negligence in Common Law: Denial |
Must Prove One Or More Of the Following Occurred: 1. He or she did not commit the act that caused the complaint. 2. His or her actions were not negligent. 3. The plaintiff suffered no injury as a result of the defendant's actions. |
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Defences Against Negligence in Common Law: Remoteness Of Damage |
Norvus Actus Interveniens. Defendants must prove their actions were not the immediate and effective result of the plaintiff's injuries or damages. Their actions must be remote from the final consequences in order to escape liability. |
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R. in Right Of Canada V. Saskatchewan Wheat Pool (1983) |
Rules to Prove Negligence Involving Breach Of Contract: -Statute must be breached. -Conduct caused damage for which compensation is being sought. -Statute was Intended to prevent the damage which occurred. -Plaintiff must be among the group which statue was intended to protect. |
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Rylands V Fletcher (1932) |
Strict Liability: -Occupiers bringing dangerous things onto their premises and they escape. In this case it was water. |
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Carriss V Buxton (1958) |
Contractual Entrant: -A person who enters onto premises under a contract with the occupier. EX: A hotel guest or theatre goer. -The contract is said to have implied (unwritten) terms for the occupier to ensure that the premises are safe as reasonable care and skill on the part of anyone could make them. |
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Polemis and Furness Withy & Co Ltd. |
Foreseeability: -Wooden plank was negligently dropped into the hold of a ship causing a spark to ignite gas vapours resulting in the destruction of the ship. -Defendant was held liable even though the fall of the plank could not have been expected to destroy the ship. -This decision was later overturned in Overseas Tankship Ltd. V Mort's Dock & Engineering (1961) |
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Wagon Mound Case, Overseas Tankship Ltd. V Mort's Dock & Engineering (1961) |
Foreseeability: -Defendant was not held liable as it was not foreseeable that this freak accident would occur. |
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Bux V Slough Metals Ltd (1974) |
Defence of Denial: -Employer to provide safety goggles, aware that employees rarely wore them. -Employee suffered injury. -Employer found negligent as they should have enforced the rule. |
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Ryans V Youngs (1938) |
Defence Of Inevitable Accident: -Youngs suffered a heat attached while driving. -No history of heart issues. -Defence worked as no prior issues. |
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Telfer V Wright (1978) |
Defence Of Inevitable Accident: -Wright suffers dizzy spell while driving and suffered same symptoms as months earlier. -Cause an accident. -Defence did not work as Wright was aware the spells could happen again and still choose to drive. -Inevitable accident was not successful. |
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Palsgraff V Long Island Railroad (1923) |
Defence of No Duty Owed -Defendant's guard knocked a package of fireworks out of the hands of a passenger while helping them on the train. -Fireworks exploded, knocking over a scale which injured plaintiff. -Denied recovery as plaintiff was determined to be beyond the range of foreseeable danger. |
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Waldwick V Malcolm |
Defence of Voluntary Assumption Of Risk: Volenti -Has a knowledge of the risk and physically assume it. -Waived legal rights of legal claim in the event of injury. EX: Hockey puck injury at a game. |
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Scott V. Sheppard (1773) |
Defence of Proximate Cause: -Lit firecracker (squib) was thrown into market falling onto a stall. -Occupier threw it away. -Other occupiers threw it away until it exploded injuring eye of plaintiff. -The defendant who lit the firecracker was held liable. The court felt that the others did not act unreasonably in the emergency situation that was created by the defendant. They would not have been in the situation without the actions of the defendant. |
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Laperriere V the King (1946) |
Quebec Proximate Cause: -Canadian army left explosives. -Children found them, set them off and injured themselves. |
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Beaudoin V T.W. Hand Fireworks (1961) |
Quebec Proximate Cause: -Children found firecracker. -Father confiscated and gave to employee to discard. -Employee exploded firework close to children injuring them. -Defence of remoteness of damage was use and the plaintiff was unsuccessful as it was determined that without the negligence of the father and employee it would not have exploded. |
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Lockhart v CPR (1941) |
Employer/Employee Duties -Employee used personal auto even though not permitted. -Tp injured. -Employer responsible. |
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Proximate Cause |
The negligence of the defendant must be the effective or proximate cause of the injury or damage. There must exist an uninterrupted unfolding of events without the intervention of another cause for the initial act to the conclusion. If there is no intervening cause, a chain of events leading from the negligence to the injury. |
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Identify three levels of government that enact laws. |
-Federal: Military, Foreign Relations, Currency and Crown Corporation. Criminal Law. -Provincial: property laws, educations, health, insurance industry. -Municipal: Enforce and create by-laws. |
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Courts |
-Supreme Court Of Canada *Ultimate authority for cases of national impact. -Provincial Appeals Court *Final means of provincial recourse. -Jurisdiction Superior Court *Large Cases -District/County Court *Intermediate Cases -Small Claims Court *Set Amount |
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What are the 5 things different about Criminal Law compared to Civil Law. |
-Criminal Code of Canada -An act against society. -Based in statue law federal or provincial and includes criminal and quasi criminal acts. -Based on statutory requirements placed on individuals. -Courts determine guilt. -Punishment by fine or prison. |
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What are the 5 things different about Civil Law compared to Criminal Law. |
Civil Code Of Quebec and The Common Law System (Civil Law) -A dispute between parties. -Not statue driven. (Mix of Caw Law and Statue Law) -Responsibilities individuals owe each other. -Courts determine fault not guilt. -Courts determine monetary compensation. |
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What type of rights would you see in Civil Law suits? |
-Individual rights -Family relationships -Estates -Contracts -Any dispute not involving criminal or quasi criminal activity. |
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Describe the Quebec Legal System |
-Civil Code of Quebec. -Influenced by Customs of Paris and the Napoleonic Code. -Originated 1861 was redone in 1994. -Covers every area of law from birth certificated, insurance contracts, corporations, mortgages, wills, ect. -Civil code is a form of statue law. If the code does not apply to the material facts in dispute in a given situation, courts will apply the general principles of justice set out in the code. -Although not bound by past cases, courts are persuaded when argument is supported by case law |
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How is Quebec effected by case law? |
-Although not bound by past cases, courts are persuaded when argument is supported by case law |
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What is judicial hierarchy in the Common Law? |
If more then one judgement with similar facts is found, the court will follow the precedent set by the higher court. |
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How is precedent set? |
Precedent-setting case law forms a body of general principals which can be compared to the case in dispute. To apply the common law theories, lawyers and judges do a great deal or research. An analysis is conducted to justify and support the decision. |
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Which law takes precedence when statute law and common law are both involved? |
Statute Law |
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What statues are relevant to liability insurance the specify a duty of care? |
-Duties of landlord or tenants. -Environmental protection acts. |
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What is the Common Law Duty Of Care? |
-In each case the duty of care is considered individually to determine whether the conduct was reasonable under the circumstances. |
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By law who is an occupier? |
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. |
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In Common Law, what duty is owed to strangers who do not enter the premises or land? |
A duty to keep the property free from any danger. |
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In Common Law, what duty is owed to owners and occupiers of adjoining properties? |
Owners/Occupiers are held liable to damage of adjoining properties without having to prove negligence. |
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In Common Law, what four categories of persons might enter a premises? |
-Trespasser -Licensee -Invitee -Contractual Entrant |
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Veinot V Kerr-Addison Mines (1975) |
Duty To Trespassers: Occupier must treat the trespasser with common humanity. Factors considered to see if duty was breached: -Gravity or likely hood of the probable injury. -Character of the intrusion or trespass. -Nature of the premises trespassed upon. -Knowledge the occupier had or ought to have of the likelihood of a trespasser. -Cost to the occupier of preventing the harm. |
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What is a licensee? |
Enters land with the consent of occupier. |
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What duty is owed to the licensee? |
Occupier has the duty to protect a licensee from known concealed traps or dangers. |
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What is an invitee? |
A person who enters onto the premises with permission when the occupier has some financial or other material interest in the matter. |
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What duty of care is owed to an invitee? |
Occupier's duty is to exercise reasonable care to prevent damage to such a person from usual danger of which the occupier knows or ought to have known. |
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Give an example of a Contractual Entrant |
Hotel guest or theatre patron |
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What is the occupier's duty on allurement? |
A higher standard of duty is demanded from an occupier towards a child. Must ensure that the premises are safe so that no danger exists. Ex: pools, trampolines, ect |
