Chapter 2 - C13 Insurance Against Liability – Part 1 Download

STUDY 2 – Negligence.pdf  View or Download

Terms	Definitions
What three elements must be present to establish a cause of action for negligence?	a duty of care exists, breach of that duty occurred and causal relationship between the breach and damages is shown.
Name two statutes relevant to liability insurance that specify a duty of care.	a) duties of landlords or tenants outlined  b) environmental protection acts describe duties
What rules were developed to prove negligence in R. in Right of Canada v. Saskatchewan Wheat Pool?	1. The statute must have been breached. 2. The conduct which was a breach of the statute must also have caused the damage for which compensation is sought. 3. The statute must have been intended to prevent the damage which occurred. 4. The person making the claim must be among the group which the statute was intended to protect.
What is the common law duty of care?	Under the common law, the duty of care in each case is considered individually to determine whether the conduct in question was reasonable under the circumstances.
What case furnished the common law world with the definition of negligence?	Blyth v. Birmingham Water Works
Define negligence.	Negligence is the omission to do something which a reasonable [person], guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable [person] would not do.
How has a reasonable person been defined in Canada?	[The reasonable person] is a 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 be proper or improper in particular circumstances as they may exist from time to time.
How was neighbour defined in Donoghue v. Stevenson?	persons responsible for damage to others when it should have been reasonably contemplated that injury would occur in carrying out the act.
On what basis do consumers qualify as persons to whom a duty of care is owed?	they would qualify as an invitee.
In law, who is an occupier?	An occupier is the person who has the immediate supervision and control of the premises and the power to admit and exclude the entry of others.
Which law takes precedence when statute law and common law are both involved ?	statute law takes precedence
In common law, what duty is owed to strangers who do not enter the premises or land?	a duty to keep the property free from any danger.
In common law, what duty is owed to owners and occupiers of adjoining properties?	owners/occupiers are held liable to damage of adjoining properties without have to prove negligence
What four categories of persons in common law might enter premises?	Trespasser, Licensee, Invitee, Contractual Entrant.
List the factors considered in Veinot v. Kerr to determine whether an occupier's duty to a trespasser has been breached.	a. gravity and likelihood of the probable injury; b. character of the intrusion or trespass; c. nature of the premises trespassed upon; d. knowledge the occupier had or ought to have had of the likelihood of a trespassers presence; e. cost to the occupier of preventing the harm.
What is a licensee?	enters upon land with the consent of the occupier.
What duty is owed to a licensee according to the common law?	has a duty to protect a licensee from known concealed traps or dangers.
What is an invitee?	a person who enters onto the premises with permission when the occupier has some financial or other material interest in the matter.
What duty of care is owed to the invitee by the occupier under the common law?	occupier's duty to exercise reasonable care to prevent damage to such a person from unusual danger or which the occupier knows or ought to have known.
Give an example of a contractual entrant.	a hotel guest or theatre patron.
How does allurement relate to an occupier's duty of care?	a higher standard of duty id demanded from an occupier towards a child. Must ensure that the premises are safe so that no danger exists.
Under what three circumstances will parents be responsible for the negligent actions of their children?	a. The child was acting on the parents' express instructions, or under their authority. b. The child was employed by the parent and acting within the scope of the employment. c. The damage was caused by a dangerous thing or animal which the parents had allowed the child to control, such as a motor vehicle.
Why must bailees exercise a high standard of care with property entrusted to them?	the basis upon which the property changed hands affects the level of duty of care.
What is the purpose of hold-harmless and indemnity provisions in a contract?	they are used together to transfer liability from where it would normally lie to someone else and direct who shall pay for expenses related to defending an action.
What is a prima facie finding of liability?	the court presumes that the information is true until or unless evidence is introduced to the contrary.
How is a duty of care established in Quebec?	a breach of the civil code would be a breach of statutory duty.
How did the case of Polemis and Furness Withy & Co. Ltd. explain foreseeability and its consequences?	The charterers were held liable for the destruction of a ship even thought he fall of the plank could not be expected to destroy the ship.
How did foreseeability develop in the Wagon Mound case?	established that it was not reasonably foreseeable that such circumstances would arise despite their negligence.
What concept similar to foreseeability is used as a defence against liability?	Remoteness of damage is used when pleading a defence.
What is proximate cause?	an uninterrupted unfolding of events without the intervention of another main cause from the initial act to the conclusion.
What are compensatory damages?	refers to money that will reimburse the plaintiff for the injury or loss actually suffered.
What are the two main categories of damages?	special - out of pocket expenses general - at discretion of the judge, e.g. pain and suffering, future expenses etc.
What factor is traditionally necessary for loss of profit to be recoverable?	when physical injury to person or property has occurred.
How are claims involving loss of production often valued?	the law is more restrictive in terms of recovering in a tort action for negligence.
What are nominal damages?	when the plaintiff has suffered no real loss. e.g. slander, libel.
What is another name for punitive damages and when might it be imposed?	exemplary damages is another name.  may be imposed where the reckless or wilful behaviour is a factor.