Chapter 6 - C13 Insurance Against Liability – Part 1 Download

STUDY 6 – General Legal Principles.pdf  View or Download

Terms	Definitions
Give an example of an intervening cause that would provide a defendant with a defense of remoteness of cause.	a pedestrian suffers a arm injury when hit by a cyclist. on the way to the doctors, he is hit by a car and injures his leg. he can claim damages from the cyclist for the arm injury but not the leg which was caused by the motorist.
Describe the case of Scott v. Shepherd (1773) to illustrate what is meant by a chain of events and the effect it has on proximate cause.	the defendant threw a lighted firecracker into a crowded market. this started a chain of events in which it was thrown around. the firecracker exploded and caused an eye injury. the defendant was held liable as the court felt the others acted rationally in the case of the emergency.
Chain of events and intervening causes were subsequently dealt with in two Quebec cases. Describe the outcome of these two cases.	Laperriere v. The King (1946) - the army (King) was held responsible since it was foreseeable that abandoning explosives would cause injury. Beaudoin v. T.W. Hand Fireworks (1961) - father or his employer was held liable for negligence of failing to dispose of firecrackers properly.
What are joint tortfeasors?	are two or more persons acting in concert for a common purpose and causing injury or damage to another.
What right does a joint tortfeasor have when a plaintiff chooses only him or her to proceed against in an action where joint and several liability applies?	the defendant has a right to seek contribution from the other tortfeasors sharing fault.
How is apportionment of liability among joint tortfeasors handled in Quebec?	the victim can claim the whole indemnity from either one of the defendants and it will be up to them to settle their scores. 469 C.C.P.
What is vicarious liability?	responsibility for the actions of others.
What is the general rule outlining the responsibility of principals for the acts of their agents?	as long as the agent is acting within the authority conferred, the principal will be responsible for all commitments entered by the agent.
How is the concept of principal and agent referred to in Quebec?	it is referred to as mandator and mandatary.
Explain four ways in which agency can be created.	1. by contract (express)  2. by ratification -authority conceded later. 3. by estoppel - restraint placed on a person by law to prevent them from denying previous representations 4. by necessity - urgency leads to acting as an agent. e.g. carrier of perishable goods
Under what circumstances in a principal and agent relationship can an agent be held liable to a third party?	-agent is improperly identified - when the principal does not exist - when the agent exceeds authority of contract.
How does the C.C.Q. define a mandate?	it is a contract where the mandator empowers the mandatary to represent him in the performance of a judicial act with a third party.
What legal liabilities arise out of the relationship between the mandator and mandatory?	the mandator is liable to third parties for all obligations contracted by the mandatary.
What principle is demonstrated in Lockhart v. C.P.R. (1941)?	the employer is responsible for the actions of his employee and the way in which they are done.
How can responsibility remain with the employer even though the employee acts in a way that is expressly forbidden?	the employer is responsible for the acts of a negligent employee in the course of carrying out work duties
What is "a frolic of his own" and how would it affect an employer's responsibility for damage arising from it?	an employee may, during work hours, abandon work and do something unrelated to it and cause damage. Employer is not responsible for said damage.
How would liability be assigned if an employee was using the employer's property without authority to do so?	an employer is not responsible for negligence of the employee in this case.
When are independent contractors not solely liable for damage they negligently cause others?	1. dangerous work 2. unlawful work 3. interference
What principle was reinforced in Davie Shipbuilding v. Cargill Grain (1978)?	the principle of "who knows better". the owner in the case Cargill had more technical expertise and ignored warnings on the potential collapse of the warehouse which did.
How can municipal liability arise?	from misfeasance, nonfeasance and malfeasance.
Define misfeasance, nonfeasance, and malfeasance?	misfeasance - improper performance of something that is legal to do nonfeasance - omission to perform duties which by law one is bound to do. malfeasance - an act which is unlawful.
What are some municipal liability exposures?	slippery pavements, nonrepair of highways, defective water pipes.
How do requirements with respect to notice compare between municipal and other types of liability?	the time period for notice varies with the type of loss.
What must an insurer do to protect its subrogation rights?	the municipality must be notified in the prescribed manner and within the time limit to protect its rights.
How is municipal liability determined in Quebec?	it is a legal person established in the public interest and it is primarily governed by public and administrative law.
What standard of conduct is enunciated in s. 1457 of the Civil Code?	the cities and towns act, the municipal code and city charters set out the requirements of notice of claims.
Who may bring an action in a class action?	a member of a group that will institute a legal action for the benefit of all members.
In general terms, who may launch a class action and how would they go about it?	when each member of the class has the same interest and not just a similar interest in the subject matter of the litigation ii. the claim is against a discernible fund or asset existing for the benefit of the class.
What are the procedures in launching a class action in Quebec?	1. prior authorization of the superior court must be obtained. 2. plaintiff must prove that the group shares an interest in identical, similar or related questions of law or fact. 3. representatives are in a position to do so adequately. 4. action must be taken within 3 months
In a class action what conditions does the court impose when the final judgment is given?	it may fix terms and conditions of payment.
What is a limitation period?	it is a period o time after which a cause of legal action may no longer be enforced.
Under common law when does a cause of action time period begin?	the cause of action time period begins from the date the damage is incurred.
How have some limitation statutes modified the common law?	by specifying that the time begins to run from the date the conduct was discovered or some other event.
What types of interest might an insurer be called upon to pay in addition to an actual loss?	prejudgment interest - claims arising from contractual obligations postjudgment interest - usually runs from the date judgement is rendered until the damages are paid.
How is interest computed on a judgment in Quebec?	it is computed on the amount specified in the judgement from the day the action is filed to the day when it is paid.