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74 Cards in this Set
- Front
- Back
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What are three key features of civil law? |
1. It's used to help settle disagreements and compensating people who have been "wronged", opposed to the wrong being committed against society 2. The person suing is known as the plaintiff, and the person defending is known as the defendant 3. Proof of fault is based on the balance of probabilities |
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What is a tort? |
A wrong against a person |
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How can an offence be both a crime and a tort? |
If the tort occurred as a result of the commission of a crime |
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What are 5 differences between civil and criminal law? |
1. Plaintiff v defendant / Crown v defendant 2. Plaintiff or hired lawyer gathers evidence and argues the case / police gather evidence and lay charges, the prosecutor argues the case 3. Activity may be legal, but results in harm / activity is specifically illegal and prohibited by law 4. Must prove behaviour not to society's standards / must prove intent to violate the law 5. Must prove case on balance of probabilities / must prove beyond a reasonable doubt |
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What are three common methods of a lawyer billing for their services? |
1. Fixed fee 2. Hourly fee 3. Contingency fee |
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What is a fixed fee? |
When the lawyer is able to quote a fixed fee, regardless of the time spent on work or court appearances. It is used only when the lawyer can calculate fairly accurately how much time will be required |
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What is an hourly fee? |
When the lawyer agrees upon an hourly or daily rate with the client. They record the time spent on the case, so they know how much to bill the client |
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What is a contingency clue? |
When the lawyer agrees to represent somebody in court and takes their fee as a percentage of the award that is received if successful. If they lose, the lawyer gets nothing. These are common in personal injury suits |
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What three matters does the BC Provincial Court hear? |
-family matters -small claims -traffic or municipal bylaw matters |
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Why is compensation awarded? |
As compensation for the plaintiff's pain and suffering, loss of future income, and expenses for medical bills |
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What are the 5 basic civil remedies? |
-compensatory damages -punitive damages -nominal damages -costs -injunction |
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What are compensatory damages? |
Damages that compensate the victim for actual and future financial losses, and for emotional or physical suffering |
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What are punitive damages? |
Damages that are intended to be a punishment to the defendant. These are similar to fines for a criminal offence, except in civil law, the money is given to the victim, not the Crown. |
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What are nominal damages? |
Damages that are awarded when the judge wants to indicate support for the plaintiff, but the plaintiff has suffered little or no damages. Awards of very low cost are often given |
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What are costs? |
The cost of legal expenses associated with the lawsuit |
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What are injunctions? |
Court orders that require a party to stop doing a specific activity |
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What happens with payments after the trial? |
They must be fulfilled before the courts intervene |
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What are the five courts used in civil law? |
-the BC Provincial Court -the Supreme Court of BC -the BC Court of Appeal -the Federal Court -the Supreme Court of Canada |
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What is negligence? |
Negligence occurs when you fail to do something expected of you and someone suffers an injury |
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What are the elements of negligence that must be proven? |
-duty of care -standard of care -actual injury -causation of injury -higher duty of care |
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What is duty of care? |
When the defendant had a duty or legal responsibility to the plaintiff to avoid causing an injury that could have been forseen |
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What is standard of care? |
When the defendant failed to provide the plaintiff with the level, or standard, of care expected to be provided by a reasonable person |
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What is actual injury? |
When the plaintiff suffered real loss or harm |
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What is causation of injury? |
When the plaintiff's injury was caused by the defendant's failure to provide the expected standard of care |
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What is higher duty of care? |
I.e., parents and teachers have a higher duty of care and control to supervise children in their care |
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What is Res Ipsa Loquitur? |
"The act speaks for itself", when the mere fact that the accident occurred is proof of negligence |
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What is strict liability? |
When somebody engages in a legal but extremely dangerous activity, and can be found strictly liable for any injuries that result |
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What three elements does the court look for proof of? |
-duty of care -breach of duty of care -causation of injury |
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What two defences can the defendant provide in a negligence case? |
-voluntary assumption of risk -contributory negligence |
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What is voluntary assumption of risk? |
When the plaintiff knew and voluntarily accepted the nature and degree of risk involved |
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What is contributory negligence? |
When the plaintiff was also negligent and was wholly or partially responsible for their own injuries |
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What are four special types of negligence? |
-product liability -occupiers' liability -professional negligence -vicarious liability |
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What is product liability? |
When manufacturers are held responsible for injuries resulting in an inadequately designed, badly assembled, or not accompanied by clear instructions and hazard warnings |
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What is occupiers' liability? |
When the tenants and owners are responsible for almost everything that happens on their premises. |
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What three things are occupiers responsible for? |
-the condition of the premises on which they live -the activities conducted on the premises -the conduct of third parties on the premises (including known trespassers) |
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What is professional negligence? |
When a certain business or party provides inadequate or faulty services. A professional is expected to have more knowledge, and thus have higher expectations. A good example of this is doctors |
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What is vicarious liability? |
When one is legally responsible for another's behaviour. An example is parents inadequately supervising their children, and the employer/employee relationship |
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What are the two major categories of intentional torts? |
-wrongs to the person -wrongs to the property |
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What are three common intentional torts to the person? |
-assault -battery -false imprisonment |
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What is the tort of (civil) assault? |
The threat of bodily harm that causes emotional suffering |
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What is battery? |
Harmful or offensive physical contact |
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What is medical battery? |
When a physician operates or treats a patient without their informed consent, except for life or death situations |
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What is false imprisonment? |
When somebody is restrained by force or intimidation, without lawful justification |
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What are two wrongs to properties? |
-trespass to land -nuisance |
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What is trespass to land? |
When someone or something enters and intrudes without permission upon property occupied by somebody else |
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What is nuisance? |
Unreasonable indirect interference with people's rights to use and enjoy their property. Courts will only intervene in situations where an annoyance is malicious or is so severe that it is unacceptable to society |
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What is defamation of character? |
Wrongful damage to a person's reputuation |
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What is slander? |
A false statement that is said or indicated in conversation |
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What is libel? |
A false statement that is published |
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What are the four defences to defamation? |
-truth -absolute privilege -qualified privilege -fair comment |
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What is absolute privilege? |
A statement that was made in Parliament, a legislature, and other similar legal circumstances, so that it is not considered slander |
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What is qualified privilege? |
When the defamatory statement was made honestly and without malice in the course of one's duties |
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What is fair comment? |
When the comment was an honest opinion about a matter of public interest |
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What is a contract? |
A legally enforcable promise |
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What are express contracts? |
Verbal or written contracts |
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What are implied contracts? |
Contracts where nothing is said or written because it's common and well understood without explanation |
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What are the (6) elements of a valid contract? |
-an offer that is serious and definite -an acceptance that is serious and timely -mutual consideration -full legal capacity -genuine consent -a lawful purpose (i.e., nothing illegal occurs) |
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What makes a valid offer? |
-seriously intended -definite terms -communicated to other party |
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What is an acceptance? |
Often shown in the form of a signature, sometimes spoken |
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What is consideration? |
Consideration of the things of value being exchanged in the contract |
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Who doesn't have legal capacity? |
-mentally disabled or insanity -intoxicated -not authorized to act -bankrupt or insolvent |
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Which four situations can prevent genuine consent? |
-misrepresentation -mistake -duress -undue influence |
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What are five ways to discharge a contract? |
-performance (it has been fulfilled) -waiver -substitution -fundamental breach of contract -conditions (are not met) |
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What is a breach of contact vs a breach of warranty? |
A breach of contract is to break its terms. A fundamental breach is serious enough that the other party can discharge the contract, whereas a breach of warranty is a minor obligation that was not filled |
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What are the four remedies for breach of contract? |
-damages -specific performance -injunction -recission (cancellation) |
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What is allurement? |
The exceptional attraction to something or something that will entice a person to act. e.g., a child swimming an another person's pool |
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What is malice? |
Carrying out intentionally of an injurious and harmful act with no cause or justification |
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What is a discharge? |
When a contract or agreement is ended |
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What is foreseeability? |
The ability to perceive or anticipate the potential damage or injury of one's action before it is carried out |
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What is no-fault insurance? |
When you get into an accident, and your insurance company must pay for all or part of your medical bills regardless of who is at fault for the accident |
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What is the difference between public and private nuisance? |
Public nuisance affects the public as a whole, instead of a specific group of people. Private nuisance is when the nuisance only affects the specific group of people. |
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What is private law? |
An area of law dealing with conflict between individuals, opposed to public law, which deals with conflict between one party and the government |
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What is third-party liability? |
Third-party liability coverage is used when the driver damages somebody else's property or causes injuries/death, and is held legally responsible |
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What are the steps of taking somebody to civil court? |
1. Decide which court (Small Claims Court or BC Supreme Court) you want to sue in 2. Complete a Notice of Claim form 3. Take the documents to the appropriate court registry, file them, and have them stamped 4. Serve a copy of the documents to the defendant |
