C13

Liability

Negligence, Nuisance & Breach of Contract.

A tort is a civil worng or injury recongized under the law, other than a breach of contract, whereby an injusred party acquires the right to sue the defendant, usually for a court award in the form of compensation.

Finding that someone has committed a tort by negligently causing damage or injury to another. Common sense should govern your conduct so that you do not do anything that could forseeably cause damage or injury to others.

Is interference with a person's use and enjoyment of living area.

Is interference involving the rights of many people. Only the Attorney General may bring an action for public nuisance.

When a party to a contract fails to honour the terms of a contract, that party is said to be in breach of contract.

This imposition is a natural deterrent to irresponsible behaviour in both personal and corporate acts. The courts judge each set of circumstances before them and attempt to compensate for the worngs by transfer of funds from one party to another.

Federal, Provincial & Municipal governments.

It shields them from legal fees and judgments that could potentially lead to bankruptcy.

Individual rights, family relationships, estates, contracts and in fact any dispute which does not involve a crinimal or quasi-criminal act.

Provincial statues specify duties an individual owes to society, for example legislation governing highways and motor vehicles sets speed limits and makes it an offence to exceed them. Speeding is not a crime but it is an offence. Offences of this type are generally referred to as a quasi-crime.

• Criminal Law
• -Act against society prohibited by statute
• -Guilt is determined by courts.
• -Penalties fine / imprisonment

• Civil Law
• -Dispute between individuals or legal entities.
• -Fault determined by courts.
• Penalties - compensation for injured party.

• Quebec courts are not bound by prior rulings or decisions but they tend to be effectively persuaded when arguments are supported by case law.
• Civil Code of Quebec covers every area of the law.

Courts role is to interpret the law and settle disputes according to the rules set out in the code.

Case Law precedent and Statute Law.

Under the common law, the courts look upon cases that have already been decided for guidance on how to resolve cases currently in dispute.

The court may include in its judgment of set of rules with attendant criteria in a logical argument in support of its decision.

• - Small Claims court for the smallest cases
• - District/County courts for medium cases
• - Provincial/Territorial Superior court for larger cases.
• - Provincial Court of appeal
• - Supreme court of Canada
• - Federal Court System

Quebec courts are not bound by prior rulings or decisions, they tend to be effectively persuaded when arguments are supported by case law.

It would tie up the court system and they would not be able to hear more important cases of national importance or to establish a precdent on some point of law.

• A duty of care exists.
• There was a breach of that duty.
• The breach caused damage.

Blyth v. Birmingham Water Works.

Failing to do what a reasonable person would do, or doing something a reasonable person would not do.

• Mythical creature of the law whose conduct is the standard by which the courts measure the conduct of all other persons and find it to the proper or improper in particular circumstances as they may exist from time to time.
• He is not extraordinary or unusual creature, superhuman,not required to display the highest skill of which anyone is capable, not a genius and not possess unusual powers of foresight.
• He is a person of normal intellegence who makes prudence a guide to his conduct. He does nothing a prudent person would not do and does not omit to do anything that a prudent person would do.

Persons who are so closely and directly affected by my act that I ought reasonable to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in questions.

A brain surgeon would be expected to perform on a professional level in a similar way as other brain surgeons with similar experience and training.

An occupier is the person who has immediate supervision and control of the premises and the power to admit and exclude the entry of others.

Trespasser, licensee, invitee and contractual entrant.

• Gravity of the probable injury
• Likelihood of the probable injury
• Character of the intrusion or trespass
• Nature of the premises trespassed upon
• Knowledge the occupier had or ought to have had of the likelihood of a trespasser's presence
• cost to the occupier of preventing the harm.

Property or premises that would tempt children to trespass by nature of their properties required occupiers to take greater steps to safeguard them. The duty to the child was raised to that of a licensee.

Is a person who enters upon land with the consent of the occupier.

An occupier has a duty to protect a licensee from known concealed traps or dangers.

Is a person who enters onto the premises with permission when the occupier has some financial or other material interest in the matter.

The occupier owes the greatest duty of care to an invitee. It is the occupiers duty to exercise reasonable care to prevent injury to such a person from unusual danger of which the occupier knows or ought to have known.

Hotel Guest

Is a legal principle that provides a defense against torts for an attempted rescue by someone who voluntarily helps a victim in distress.

Statutes take precedence over common law.

The obligations of landlords to their tenants are the subject of the landlord and tenants legislation in the common law provinces. For example, landlords have a duty to keep their premises in good repair.

Hold-harmless and indemnity provisions are used together to transfer liability from where it would normally lie to someone else and to direct who shall pay for expenses related to defending an action or satisfying a judgement.

• Child was acting on the parents' express instructions, or under their authority.
• Child was employed by the parent and acting with the scope of the employment.
• Damage was caused by a dangerous thing or animal which parents allowed the child to control - such as a motor vehicle.

• The statute must have been breached.
• The conduct which was a breach of the statute must also have caused the damage for which compensation is sought.
• The statute must have been intended to prevent the damage which occurred.
• The peson making the claim must be amoung the group which the statute was intended to protect.

There must exist an uninterrupted unfolding of events without the intervention of another main cause from the initial act to the conclusion.

Compensatory damages refer to money that will reimburse the plaintiff for the insury or loss actually suffered.

• Special Damages
• General Damages

Pure Economic Loss.

Nominal damages are awarded when the plaintiff has a right of action but has suffered no real loss.

Exemplary Damages - as punishment to the defendant where reckless or wilful behavious is a factor.