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24 Cards in this Set
- Front
- Back
- 3rd side (hint)
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General Damages:2 main Categories: |
a) Pecuniary – for loss of income or future earnings andthe cost of specialized future care.b) Non-pecuniary – for pain and suffering and for loss ofenjoyment of life. |
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Special Damages: |
Cover out-of- pocket expenses occurring before trial Eg. Ambulance service, hospital costs, therapy etc… Lost wages due to injury can also be calculated |
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Punitive Damages: (exemplary damages) |
Intended to punish offenders for their oppressive, insensitiveor malicious behaviour Meant to condemn the conduct and discourage others fromrepeating it Libel and Slander become big issues… |
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Aggravated Damages: |
Compensate the plaintiff for defendant’s intolerable conduct |
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Nominal Damages: |
Used by judges as an indication of support for plaintiff Moral victory! |
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Injunctions: |
issued when the plaintiff is not as interested in monetary compensation as in another form of judgment Basically an order to do, or not to do something… |
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Contingency Fees: |
Lawyers sometimes wave “fees” (retainer!) but will sign onfor a “percentage” of award…very popular in the U.S… |
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INTENTIONAL TORTS |
-Defamation of character-Slander-Libel-Trespassing-False imprisonment-Infliction of mental suffering-Nuisance (PRIVATE + PUBLIC)-Occupiers’ Liability |
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Defences to defamation: |
Truth, Absolute privilege (eg. MP’s),Qualified privilege (eg. teachers, creditassessors) Fair comment (eg. concert or moviereviews, food critics) |
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Slander |
form of oral defamation that occurs whenwords, sounds, gestures or facialexpressions are used to lower a person’sreputation |
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Libel |
defamation in permanent visual or audibleform, such as radio, TV, publications,cartoons, photographs, films etc… more serious than slander exceptions include unread personal diariesetc… |
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Nuisance |
an unreasonable interference with the right TWO categories of nuisance: of others to enjoy property Private a nuisance that concerns an individual or a few persons only (eg. golf balls in backyard!) Public a nuisance that concerns an indefinite number of persons or all residents in a community (eg. noisy Super EX!, pollution etc…) |
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Occupiers’ Liability |
responsibility of occupiers towards persons includes invitees (non-social) and licensees Occupiers’ Liability Act (1980) ensured that who come onto property and might be injured (non-business or implied permission) occupiers have same duty of care for invitees and licensees |
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Torts fall into THREE categories: |
1) unintentional torts (negligence) 2) intentional torts 3) strict liability |
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1) Unintentional Torts: Negligence There are SEVEN key elements that must be established in order to prove negligence: |
-Duty of Care-Standard of Care-Foreseeability-The Reasonable Person-Causation-Actual Loss-Burden of Proof |
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Defences to Negligence |
a) Contributory NegligenceIf both the plaintiff and the defendant are negligent to somedegree, damages are divided between them using theprinciple of contributory negligenceCourt must determine who is MORE negligent or whetherboth parties were equally at faultFault is considered to lie mainly with the person who has thelast clear chance to avoid the accident, even if that persondid not cause the danger b) Voluntary Assumption of RiskDefendant must prove that the plaintiff clearly knew of thepossible risk of his/ her actions and made a choice to assumethat riskEg. Downhill skiing, sky diving, baseball park (foul balls)Etc… c) Inevitable AccidentInjury or loss may result from a situation that isunavoidable, no matter what precautions the reasonableperson would have taken under the circumstancesEg. Lightning strikes, heart attack while driving etc… |
Best defence is that negligence did not occur OR that the defendant did not owe the plaintiff any duty of careIf the plaintiff was also negligent or has assumed risk voluntarily, then damages may be reduced or not awarded at all |
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Parental and Vicarious Liability: |
Parents have a duty of care towards persons with whomthey and their children come in contact…reasonableprudence! Holding a “blameless” person responsible for themisconduct of another (eg. Loan friend a car = accident) |
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a) Duty of Care |
the first step in a negligence action is to establish that you have a duty of care to everyone with whom you the defendant owed the plaintiff a duty of care come in contact on a daily basis to see that your actions do not cause harm to them or their property “The obligation that is required to ensure that others are not harmed by one’s actions” |
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b) Standard of Care |
once a duty of care has been established between the defendant and the plaintiff, the court must determine the DEGREE of care society expects of the defendant this DEGREE or standard of care is what can be expected from all adults who are not physically or mentally challenged there are different standards of care, depending on who you are…(eg. Principal, Vice-Principal, Dept. Head, Teacher, SC Prez, Grade 11, Grade 9 etc…) one who has an “expertise” in an area would also possess a higher standard of care (eg. Lifeguard vs. good swimmer etc…) |
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c) Foreseeability |
if the type of injury or loss suffered by the plaintiff could have reasonably been anticipated/ expected to result from that defendant’s action (or lack of action), then it was foreseeable very difficult standard to apply…what’s apparent to one may not necessarily be apparent to another |
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d) The Reasonable Person |
related to the concept of foreseeability Main Question: “Would a reasonable person in similar circumstances have foreseen the injury to the victim as a result of his/ her actions?” The “Reasonable Person” is a mythical person whose conduct is the standard against which the actions of a negligent person are compared or measured Basically viewed as being: careful, thoughtful, normal intelligence, considerate of others…but above all, NOT perfect! Standard can change from place to place and over time |
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e) Causation |
Once a court has determined that the defendant breached the required standard of care, the plaintiff must prove that the defendant’s negligent conduct was a cause of the plaintiff’s injury or loss There must be a DIRECT connection between the defendant’s negligent act and the plaintiff’s cause of action = CAUSATION The act (or omission to act) = injury to plaintiff |
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f) Actual Loss |
The plaintiff must be able to prove that he/she suffered some actual injury or loss as a result of the defendant’s negligence Eg. Hair in bowl of spaghetti vs. food poisoning on day of Wedding!!! |
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g) Burden of Proof |
Rests with the plaintiff who must prove all of the negligence elements on the balance of probabilities If evidence is evenly balanced between plaintiff and defendant, the plaintiff will not succeed o L.I.D = Liability, Injury and Damages o “Res Ipsa Loquitur” legal principle indicating shift to defendant to disprove negligence! |
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