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Questions and Answers
Who has the burden of proof in a civil action?
What is the standard of proof required for a criminal conviction?
Which type of liability arises from one’s own personal wrongdoing?
When can an employer be held vicariously liable for an employee's actions?
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What characterizes a joint tort-feasor?
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In which situation are employers NOT vicariously liable?
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What does it mean for liability to be apportioned among joint tort-feasors?
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Which statement regarding proving guilt in a criminal case is accurate?
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What defines negligence in legal terms?
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In the landmark case Donoghue v Stevenson, what significant principle was established?
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What is the first element required to establish a negligence action?
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How is 'reasonable care' defined in the context of negligence?
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What does the law of negligence seek to achieve?
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In the context of negligence, who is considered to be a 'neighbour'?
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What is a common misconception regarding the need to prove negligence?
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Which of the following is NOT a principle of negligence law?
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What is one of the three steps needed to prove the tort of passing off?
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Which of the following best describes defamation?
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For a statement to be considered defamatory, it must be communicated to at least how many other people?
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What is the legal term for inducing someone to break a contractual obligation owed to another party?
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What is the primary purpose of the law of negligence?
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Which statement best describes the concept of 'duty of care' in negligence law?
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What is a key factor that must be established to prove negligence?
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What does 'reasonable care' imply in the context of negligence?
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What defines nuisance in the context of property law?
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Which action does NOT constitute trespass to land?
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What must the plaintiff prove in a negligence action?
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What defense claims that the plaintiff accepted the risk of an activity?
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What can happen if contributory negligence is proven?
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What characterizes pure economic loss?
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Which profession is least likely to commit negligent misstatement?
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Why is the audit conducted by accountants important for shareholders?
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What must non-solicitation clauses typically include to be enforceable?
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Which type of contracts is generally required to be in writing under the Statute of Frauds?
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What is required to establish an unconscionable contract?
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Under what circumstance are minors obligated to fulfill a contract?
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What characterizes a contract that is deemed void?
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What does misrepresentation in a contract context refer to?
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What happens if a bid is submitted by a tenderer and they later discover an error?
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What is an example of a contract that can be deemed illegal?
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Negligence is defined as a careful act that causes harm to another.
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Before the landmark case of Donoghue v Stevenson, a manufacturer could only be sued by those with whom it shared a contractual relationship.
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The duty of care in negligence law requires individuals to take extreme care to avoid injuring others.
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A reasonable person standard is used to judge whether a person's conduct in a particular situation is negligent.
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Proximity means that the parties involved are in a distant and indirect relationship.
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The first element required to establish a negligence action is the plaintiff sustaining damage.
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Higher standards of care are applied when the activity poses a low risk.
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Strict liability implies that liability will be imposed regardless of negligence.
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Vicarious liability is an example of strict liability.
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The principle of strict liability is widely applied to all types of tort actions.
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Study Notes
Plaintiff vs. Defendant
- The injured person is the “plaintiff,” and the wrongdoer is the “defendant.”
Criminal vs. Civil Actions: Burden of Proof
- In a criminal action, the Crown has the burden of proving the crime beyond a reasonable doubt.
- The jury or judge must logically deduce guilt from the evidence.
- Conviction can result in imprisonment.
- In a civil action, the plaintiff has the burden of proof.
- They must prove it is more likely than not that the defendant committed the tort.
- This means a better than 50% chance.
- Successful actions usually result in the defendant paying damages to the plaintiff.
Liability in Tort: Primary vs. Vicarious
- Primary Liability arises from one's own personal wrongdoing.
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Vicarious Liability is the liability an employer has for their employee's tortious acts committed in the course of employment.
- Employers are traditionally vicariously liable for:
- acts authorized by the employer
- unauthorized acts connected to authorized acts, considered as modes (even improper) of doing an authorized act.
- Employers are traditionally vicariously liable for:
- Distinguishing between improper "modes" of authorized acts (attracting liability) and independent "acts" (not attracting liability) can be difficult.
- Employers can be held vicariously liable for employee's intentionally wrongful acts, if a significant connection to authorized conduct is established.
- Employers are NOT vicariously liable for crimes committed by their employees.
Joint Tort-Feasors
- A tortfeasor is someone who commits a tort.
- Joint tortfeasors are two or more people held jointly responsible for a plaintiff's loss or injuries.
- Legislation states:
- If the negligence of multiple people caused the loss, the plaintiff can sue any or all of them.
- Fault is apportioned between the joint tortfeasors based on their level of responsibility.
The Tort of Negligence
-
Negligence refers to a careless act that causes harm to another.
- It represents a failure to show the care that a reasonable person would have exhibited in a similar situation.
- The plaintiff does not need to prove the defendant intended to cause harm or acted deliberately.
- Reasonable Care refers to the care a reasonable person would demonstrate in a similar situation.
- The law of negligence aims to compensate victims without discouraging legitimate activity or imposing unreasonable standards.
Establishing a Negligence Action: Elements
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Duty of Care: The defendant must owe the plaintiff a duty of care.
- This is determined by the courts considering if the defendant should have reasonably foreseen that their actions could cause harm to the plaintiff.
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Breach of Duty: The defendant must have breached that duty of care.
- This involves assessing if the defendant's actions fell below the reasonable standard of care.
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Causation: The defendant's breach must have caused the plaintiff's injuries.
- The plaintiff must prove a "but-for" connection, demonstrating that the injury wouldn't have occurred without the defendant's actions.
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Damages: The plaintiff must have sustained damages as a result of the defendant's negligence.
- These can include physical injury, emotional distress, property damage, or economic loss.
Negligent Misstatement (or Negligent Misrepresentation)
- This tort involves an incorrect statement carelessly made.
- It typically applies to professionals such as accountants, lawyers, and engineers who may be in breach of contract with their client as well.
- Professionals can be held liable for giving bad advice or providing an incompetently prepared report.
Torts from Business Operations
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Interference with Contractual Relations: Inducing someone to breach a contractual obligation owed to another.
- Example: Poaching an employee and enticing them to break their contract with their existing employer.
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Defamation: Public utterance of a false statement of fact or opinion that harms another's reputation.
- The statement must:
- Tend to lower the plaintiff's reputation in the eyes of a reasonable person.
- Refer to the plaintiff.
- Be communicated to at least one other person.
- The statement must:
-
Defences to Defamation:
- Justification: The defamatory statement is substantially true.
- Qualified Privilege: The defamatory statement is relevant, without malice, and communicated only to a party with a legitimate interest in receiving it.
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Fair Comment: The plaintiff cannot show malice, and the defendant shows the comment:
- Concerned a matter of public interest.
- Was factually based.
- Expressed a view that could be honestly held.
- Absolute Privilege: In relation to parliamentary or judicial proceedings.
E-Torts: Defamation on the Internet
- Negative reviews can have detrimental consequences for businesses.
Negligence
- Negligence in law refers to a failure to show the reasonable care expected in a similar situation.
- Compensation for damages attempts to balance providing relief with avoiding discouragement of business activity.
Landmark Case: Donoghue v Stevenson
- A customer found a snail in their ginger beer, causing illness.
- The case established a legal duty of care owed to those affected by actions, not just those in a contractual relationship.
- The "neighbour" analogy signifies that foreseeable harm to others necessitates responsible conduct.
Establishing Negligence
- The plaintiff bears the burden of proving all elements of negligence.
Case: Mustapha v Culligan of Canada
- A customer found a dead fly in a water bottle, experiencing significant psychological harm.
- Culligan owed a duty of care to provide clean water and breached the standard of care.
- While the breach caused the harm, recovery for emotional distress requires a reasonable person to experience such harm.
Defences to Negligence
- Contributory negligence acknowledges shared fault, reducing the plaintiff's award proportionally.
- Voluntary assumption of risk is a complete defence, negating liability if the plaintiff knowingly agreed to accept risk.
Case: Kralik v Mount Seymour Resorts
- An experienced skier injured themselves while riding a chairlift.
- The case demonstrates the importance of assessing a plaintiff's voluntary assumption of risk.
Pure Economic Loss
- Financial loss resulting from a negligent act without accompanying property or personal injury.
Negligent Misstatement
- A carelessly made incorrect statement, often by professionals.
- Professionals may also breach contracts in providing negligent advice.
Business Application: Negligent Misrepresentation and Auditors
- Audits are used for both internal assessments and external purposes like attracting investors.
- Auditors may be liable for losses resulting from secondary reliance on their audits.
- In Livent Inc, auditors failed to detect financial fraud, impacting the company's investments.
Nuisance
- Interference with the use or enjoyment of land must be substantial and unreasonable, considering factors like:
- Severity of interference
- Character of the neighborhood
- Plaintiff's sensitivity
- Frequency & duration of interference
Case: TMS Lighting Ltd v KJS Transport
- Dust particles from a company's unpaved parking lot interfered with a neighboring factory's operations.
- The interference was deemed substantial and unreasonable, justifying a nuisance claim.
Trespass
- Wrongful interference with someone's possession of land, including:
- Entering without permission
- Remaining after being asked to leave
- Leaving objects without permission
- Trespass is actionable without proof of harm, and injunctions are often sought.
Passing Off
- A business misrepresents its goods or services as those of another.
- Includes copying a competitor's branding elements that may confuse consumers.
Case: Ciba-Geigy Canada Ltd v Apotex Inc
- Competing laboratories must avoid confusing customers by using similar branding elements.
- The court identified three elements required to prove passing off:
- Existence of goodwill
- Deception of the public or confusion
- Actual or potential damage to the plaintiff
Torts from Business Operations
- Interference with contractual relations: Inducing someone to breach a contract.
- Defamation: Publishing a false statement that harms another's reputation.
Defences to Defamation
- Justification: The statement is substantially true.
- Qualified privilege: The statement is relevant, without malice, and communicated to a party with legitimate interest.
- Fair comment: The statement is on a matter of public interest, factually based, and an opinion honestly held.
- Absolute privilege: Applies to parliamentary or judicial proceedings.
Technology & the Law: E-Torts - Defamation on the Internet
- Online reviews can significantly impact businesses.
Enforcing Contracts
- Contracts are generally enforced by the law to ensure predictability and reliability in business relationships.
- The law allows for exceptions to contract enforcement, such as cases involving unequal relationships, misrepresentation, or fundamental defects in the contract itself.
- A voidable contract can be terminated by the aggrieved party; a void contract has no legal force.
Unequal Relationships
- Individuals and organizations are presumed to have legal capacity to contract, but minors and those with mental incapacities are given legal protection.
- Minors are not usually bound by contracts unless the contracts involve necessities of life and they don't have sufficient resources.
- Unconscionable contracts involve one party taking advantage of another's weakness. To prove unconscionability, inequality of bargaining power and evidence of exploitation or an improvident bargain must be shown.
Misrepresentations and Mistakes
- Misrepresentation is a false statement of fact that leads someone to enter a contract.
- The law requires parties to be truthful but does not compel them to disclose all information.
- A common mistake occurs when both parties share the same fundamental error; courts may void the contract in such cases.
- Rectification is a remedy for mistakes in recording an agreement.
Contracts Based on Defects
- Illegal contracts are unenforceable due to violation of legislation or public policy.
- Non-compete clauses should be reasonable, unambiguous, and have defined timeframes; territorial limitations are generally considered obsolete in a globalized economy.
Writing as a Requirement
- Contracts typically don't need to be in writing, but oral contracts require evidence like witness testimony.
- The Statute of Frauds mandates that certain contracts be written to prevent fraud, including contracts of guarantee, contracts not to be performed within a year, contracts dealing with land, and contracts for the sale of goods.
Tort Law
- Torts are civil wrongs that result in harm to a person.
- Intentional torts are harmful acts deliberately committed, such as false imprisonment or battery.
- Negligence is unreasonable conduct that causes harm to another.
- Tort law focuses on compensation for the injured party, while criminal law aims to punish and deter wrongdoing.
Negligence
- Negligence is a careless act that causes harm to another.
- In law, it refers to a failure to show the care that a reasonable person would have shown in the same situation.
- The plaintiff does not need to prove the defendant intended to cause the damage or that the defendant acted deliberately.
- The law of negligence aims to compensate victims without discouraging legitimate activity or imposing unreasonable standards.
Landmark Case: Donoghue v Stevenson
- A customer bought a bottle of ginger beer for her friend.
- When a decomposed snail was discovered, the friend became ill and sued the manufacturer for negligence.
- This case established the concept of duty of care owed to consumers by manufacturers.
Establishing a Negligence Action
- The plaintiff must prove the defendant owed them a duty of care.
- This involves determining reasonable foreseeability and proximity between the parties.
- It also involves examining any policy considerations that might negate imposing a duty of care.
- The plaintiff must prove the defendant breached the standard of care expected of a reasonable person.
- The plaintiff must demonstrate they sustained damage.
- The plaintiff must prove the defendant's breach caused the damage.
Strict Liability
- Strict liability imposes liability irrespective of proof of negligence.
- It is limited to vicarious liability, liability for fires, dangerous animals, and escaping dangerous substances.
Torts and Property Use
- An occupier is someone with some degree of control over land or buildings on that land.
- Tort actions can arise when the occupier harms others.
Nuisance
- Nuisance involves interference with the plaintiff’s use or enjoyment of land, which must be substantial and unreasonable.
- The assessment of unreasonableness involves balancing the gravity of the harm against the utility of the defendant’s conduct.
Trespass
- Trespass to land is wrongful interference with someone’s possession of land.
- It occurs when a person enters the property without permission, enters with permission but refuses to leave, or leaves an object on the property without permission.
- Trespass is actionable without proof of harm or damage.
Defamation
- Defamation involves making false and defamatory statements about another that harm their reputation.
- The plaintiff must prove the statement was false and was published with malice or improper motive.
- Malice includes knowingly publishing false information or doing so with reckless disregard for its truth or falsity.
Injurious or Malicious Falsehood
- Injurious falsehood is a statement about another's goods or services that is false and harms their reputation.
- The plaintiff must prove the statement about the goods or services was false and was published with malice or improper motive.
Protection of Privacy
- Historically, privacy interests were protected through torts like defamation, trespass, and assault.
- The tort of intrusion upon seclusion allows lawsuits for invasion of privacy.
- Legislation protects privacy by governing the collection, use, and disclosure of personal information by organizations.
- Some provinces have enacted legislation establishing the tort of breach of privacy.
The Agency Relationship
- The agency relationship involves an agent acting on behalf of a principal.
- An agent is authorized to affect the legal relationship of the principal.
- The relationship can be created through express or implied agreement.
- Agents owe duties to their principals, including loyalty, obedience, care, and accounting.
- Principals are responsible for the actions of their agents within the scope of their authority.
- The agency relationship can be terminated in various ways, such as by agreement, by operation of law, or by renunciation.
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Description
This quiz covers the fundamental concepts of plaintiffs and defendants in legal actions, distinguishing between criminal and civil cases. It also explores the concepts of primary and vicarious liability. Test your knowledge on these essential legal principles and understand their implications.
