COM402 Quiz PDF
Document Details
Uploaded by ResourcefulCharacterization
Tags
Summary
This document discusses a legal case study about negligence and trespass, involving a homeowner (Camilla) with an electric fence and visitors (Francine and Edward). The study analyzes whether the homeowner breached a duty of care.
Full Transcript
amilla lives in Victoria and has a very attractive garden. Camilla does not want unwelcome or uninvited C visitors and she has posted signs at each entrance to her property which say "No Trespassing - Keep Out". Unfortunately, the neighbourhood dogs cannot read these signs. The dogs visit Cam...
amilla lives in Victoria and has a very attractive garden. Camilla does not want unwelcome or uninvited C visitors and she has posted signs at each entrance to her property which say "No Trespassing - Keep Out". Unfortunately, the neighbourhood dogs cannot read these signs. The dogs visit Camilla's garden and dig up her plants in pursuit of buried bones. Camilla approached David because he sells a device which will keep dogs out of gardens. David sells a device called the "invisible perimeter". The invisible perimeter is an electric fence which is buried under the ground. When dogs approach the buried fence, it gives them an electric shock and they run away. The fence cannot be seen because it is under the ground. David has assured Camilla that the fence is harmless to humans. Camilla tested the fence herself by walking over it and she felt no electric shock. Edward is 78 years of age and takes, Francine, his 3 year-old grandchild, for a walk past Camilla's house every day. Edward is aware of the "No Trespassing" signs and he never goes into Camilla's garden. While walking today, Francine saw a dog in Camilla's garden and she ran towards the garden to play with it. When Francine crossed the buried fence, Edward saw her drop to the ground and cry out in obvious pain. Edward ran to help her. When Edward reached her, his "pacemaker", which controls his heart, malfunctioned and Edward had a heart attack. Edward and Francine are in the hospital under treatment. Edward's son Graham wants you to answer the following questions giving an explanation of the applicable law: 1. Does Edward or Francine (or both of them) have a legal claim the law will enforce against Camilla? amilla does not seem to have intended to hurt a person. She posted the "no trespassing" sign to C keep people out of her garden. She installed an electric fence to keep dogs out. There is no evidence that she wanted to hurt a person or child with the electric fence. There is evidence that she tested it using herself to be sure it was not harmful. We can assume there is no evidence to support a claim of intentional wrongful action in tort (ie battery). dward or Francine may be able to claim that Camilla was negligent. They must show that Camilla E (1) owed them a duty to take care (2) fell below the appropriate standard of a reasonable person and (3) that Camilla's breach of the duty to take care was a direct or proximate cause of the physical injury suffered by Edward and Francine. If the three elements of negligence can be proven on a balance of probabilities then there may be claim for damages. Camilla owes a duty of care to her "neighbours". Neighbours are people who we should consider if they will be affected by our actions. If Camilla's installation of the electric fence was something a reasonable person would not do in the situation, it is possible that Camilla has breached a duty of care to Edward and Francine. Finally, if the injury caused to Edward and Francine was directly caused by Camilla's breach of duty to take care then the third element of negligence is satisfied. [ In textbook there is the statutory liability of an "occupier" to a trespasser. An occupier must treat trespassers with the standard of common humanity. If the electric fence is a danger which falls below the standard of common humanity, then Camilla may be statutorily liable for any injury suffered by a trespasser. egligence:For Edward or Francine to have a legal claim for negligence against Camilla, they must N establish the following elements: 1. Duty of Care: Camilla owed a duty of care to Edward and Francine. 2. Breach of Duty: Camilla breached that duty. 3. Causation: The breach caused harm. 4. Damage: There was actual damage or injury. uty of Care and Breach: Camilla, as a property owner, owes a general duty of care to prevent D foreseeable harm to people who are in proximity to her property, even if they are not on her property. The installation of the invisible perimeter creates a risk of harm, especially given the potential for inadvertent contact by children or others who may not see any visible warning. Causation and Damage: Francine suffered pain upon crossing the invisible fence, which would qualify as damage. Edward, running to assist Francine, suffered a heart attack when his pacemaker malfunctioned due to the invisible fence. This also qualifies as damage. Foreseeability: It could be argued that it was foreseeable that children might wander into the garden despite the signs, and that people with medical devices could be affected by an electric fence. Occupiers' Liability: Under occupiers' liability, Camilla, as the occupier of the property, has a duty to ensure that people are not harmed due to the state of her property. Even though Edward and Francine did not have permission to enter the garden, the installation of an invisible electric fence that could harm passersby (including those who might inadvertently trespass) could be considered a breach of this duty. Given these points, both Edward and Francine have a plausible legal claim against Camilla based on negligence and occupiers' liability. 2. Does Camilla have a legal claim the law will enforce against Edward or Francine? possible claim is "trespass to land" because Camilla has posted signs stating "no trespassing" A and Edward and Francine have come onto her land without consent. rancine however is 3 years old and cannot read, so we can assume that Francine did not intend F to trespass because she is too young to understand the concept. Edward "is aware of the "No Trespassing" signs and he never goes into Camilla's garden". On the day in question, he was on Camilla's property to protect his grandchild. We can say that he was there by necessity rather than to trespass. This is not a case of accident, but necessity caused by the risk to Francine. If this is wrong and it is trespass by Edward, then the court has a discretion to reduce the damages to nil or zero given the facts involved and the lack of real economic loss to Camilla. Trespassing Francine, by entering Camilla's garden without permission, committed a trespass. However, considering Francine is ayoung child, the legal system often takes into account the age and understanding of the trespasser. It is unlikely Francine would be held legally accountable for trespassing in the same way an adult would. Edward did not trespass initially but entered the property to assist his granddaughter. This act could be considered under the "necessity" defence, which allows trespassing to prevent greater harm. 3. What remedies can the court grant in a case like this? In a civil case, the remedies are money compensation to the plaintiff and costs to the winning party. For Edward and Francine: Damages: The court can award compensatory damages for the injuries sustained by Francine and Edward. This would cover medical expenses, pain and suffering, and any other related costs. Injunction: An injunction could be granted to require Camilla to modify or remove the invisible fence to prevent future harm. or Camilla: While technically she could seek nominal damages for trespass against Francine, it is F unlikely given the circumstances and Francine's age. Additionally, pursuing such a claim might not be practical or viewed favorably by the court. Conclusion: Edward and Francine have a stronger legal claim against Camilla based on negligence and occupiers' liability, due to the harm they suffered from the invisible electric fence. Camilla may technically have a claim for trespass, but given Francine's age and the circumstances, it is not a substantial claim. The primary remedies the court might grant include compensatory damages for Edward and Francine and possibly an injunction against the use of the invisible fence. Q:The Federal Government has introduced new legislation in Parliament concerning telephone companies. a. Proposed legislation is called a "bill" b. Proposed legislation must pass a vote in the House of Commons three times and three times in the Senate and then it will become law c. Once proposed legislation has been passed in Parliament, it must be given the Royal Assent and proclaimed d. Once proposed legislation has been passed in Parliament it can be amended by another statute e. All of the above are true Answer: e. All of the above are true Q:The Government of British Columbia has introduced a bill into the Legislative Assembly to assist in proving damages against manufacturers of tobacco products. Once the bill has passed third reading, the next step will be a. to send the bill to the relevant committee for clause-by-clause study b. to give the bill Royal Assent by the Lieutenant-Governor c. for the members of the Legislative Assembly to debate the bill in principle d. to send the bill to the Senate for approval e. to amend the bill and prepare it for final reading Answer: b. to give the bill Royal Assent by the Lieutenant-Governor Q:Antonella is suing Barbara for failing to pay her for goods she bought. It will be up to Antonella to prove her case a. on a balance of probabilities b. to a moral certainty c. beyond a reasonable doubt d. on a preponderance of the evidence e. a and b Answer: a. on a balance of probabilities Q:Able entered a small restaurant and sat on a stool at the lunch counter. Baker entered the restaurant a few moments later and sat down at the lunch counter next to Able. For no apparent reason, Able suddenly struck Baker on the side of the head with his fist, knocking Baker to the floor. Baker raised himself from the floor, then seized Able, and tossed him through the large glass window at the front of the restaurant. Able was seriously injured and sent to hospital. Indicate whether the following statements are True or False: T F Able has committed the tort of assault on Baker Answer: T (True) Indicate in the space below whether or not Baker can use the defence of "self-defence" to avoid tort liability for the injuries suffered by Able when Baker tossed Able through the window. Baker can use the defense of "self-defence" to avoid tort liability for the injuries suffered by Able if Baker's response was reasonable and proportionate to the threat posed by Able's initial assault. Since Baker was responding to an unprovoked attack, he had the right to defend himself. However, the force used in self-defence must not be excessive.Tossing Able through a window may be considered xcessiveunless Baker can demonstrate that he believed it was necessary to prevent further harm to e himself. Ms White, an opera singer, consulted Dr. Brown, who is a throat expert, about growths in her throat. Dr. Brown recommended a surgical operation. When Ms White asked if the surgery could affect her opera singing, Dr. Brown said he would not recommend surgery if there was any risk to her. In fact, there was a risk of one in one thousand (1 / 1,000) that she might never sing again. Dr. Brown did not tell Ms White about this because she might over-react and leave the growths in her throat leading to more serious problems later. Dr. Brown performed the surgery without any negligence. Q: What claim, if any, does Ms White have against Dr. Brown? Answer: Ms White may have a claim against Dr. Brown for lack ofinformed consent. Dr. Brown had a duty to inform Ms White of all material risks associated with the surgery, including the one in one thousand risk that she might never sing again. By not disclosing this information, Dr. Brown denied Ms White the opportunity to make an informed decision about her treatment. Even though the surgery was performed without negligence, the failure to disclose material risks can be considered abreach of duty, potentially leading to liability for any harm resulting from the undisclosed risk. Q: Zelda was enraged when another driver cut her off (failed to yield the right of way), so she deliberately rammed his car. Indicate whether the following statement is True or False: T F Zelda has not committed a tort, but she may have committed a crime. Answer: F (False). Zelda has committed both a tort (intentional damage to property) and a crime (deliberate reckless endangerment and damage to property). Q: While driving, Charles' car hit the rear of Francine's car which was stopped at a traffic light. a. Charles may be charged by the police with an offence against traffic laws b. Francine can sue Charles in tort for the damage done to her car c. Francine cannot sue Charles in tort if he is found not guilty of the police charge d. a and c e. a or b, but not both Answer: a. Charles may be charged by the police with an offence against traffic laws Answer: b. Francine can sue Charles in tort for the damage done to her car Q: While cycling, Sarah accidentally collided with another cyclist, Tom, causing Tom to fall and injure his wrist. a. Sarah may be charged by the police with an offence against traffic laws b. Tom can sue Sarah in tort for the injury caused to him c. Tom cannot sue Sarah in tort if he is found not guilty of the police charge d. a and b e. a or c, but not both Answer: a. Sarah may be charged by the police with an offence against traffic laws Answer: b. Tom can sue Sarah in tort for the injury caused to him Q: Circle the letter which best completes the following statement. The purpose of punitive damages in a tort case is to: a. Compensate the plaintiff for their losses b. Punish the defendant for particularly egregious behavior c. Cover the plaintiff’s medical expenses d. Reimburse the plaintiff for property damage e. Ensure that the plaintiff does not suffer financially Answer: b. Punish the defendant for particularly egregious behavior Q: The principle of "stare decisis" means that: a. Lower courts must follow the decisions of higher courts in similar cases b. Courts can disregard previous decisions if they disagree with them c. Each case is decided on its own merits without reference to previous cases d. Judges must consult with each other before making a ruling e. None of the above Answer: a. Lower courts must follow the decisions of higher courts in similar cases Q: A statute enacted by a provincial government in Canada is called: a. A bylaw b. An ordinance c. A regulation d. An act e. A directive Answer: d. An act Q: In a civil trial, the burden of proof lies with: a. The defendant b. The plaintiff c. The judge d. Both parties equally e. The jury Answer: b. The plaintiff Q: Jane entered a department store and was detained by security for suspected shoplifting, even though she had not stolen anything. Jane was held for three hours before being released without charges. Indicate whether the following statements are True or False: T F Jane has a potential claim for false imprisonment against the department store Answer: T (True) Explain the basis of Jane's potential claim: Jane's potential claim for false imprisonment is based on the fact that she was unlawfully detained without her consent and without legal justification. False imprisonment occurs when a person is confined or restrained against their will within fixed boundaries. Answer: Since Jane was detained for three hours without any charges or evidence of shoplifting, she may have grounds for a claim. Q: Alan was furious when his neighbor's loud party kept him awake all night, so he retaliated by smashing his neighbor's car windows the next morning. Indicate whether the following statement is True or False: T F Alan has not committed a tort, but he may have committed a crime. Answer: F (False). Alan has committed both a tort (intentional damage to property) and a crime (vandalism). Q: A contract is legally binding if it includes: a. A written agreement b. A verbal promise c. An offer, acceptance, and consideration d. A notary's signature e. All of the above Answer: c. An offer, acceptance, and consideration Q: The main purpose of compensatory damages in tort law is to: a. Punish the defendant for wrongdoing b. Prevent the defendant from committing the same act again c. Compensate the plaintiff for losses suffered d. Make an example of the defendant to deter others e. None of the above Answer: c. Compensate the plaintiff for losses suffered
