RSM225H1 Study Guide - Final Guide: Parol Evidence Rule, Nuisance, Estoppel

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13 Apr 2012
Liability of manufacturers for injury or loss arising from defects in its products
Burden of Proof:
Consumers: prove that the product caused the harm
Manufactures: show that the defect was not something for which it should be held responsible for
since they took all the precautions necessary to prevent the defect
Duty of Care:
Extends to all who use products and are injured as a result
Duty to Warn:
Make sure users are aware of risks associated with the product
May be enough to warn a “learned intermediary” ie, a physician that does boob jobs
CONSUMERS: must show she would not have used the product after the warning and that the
failure to warn must have been the case of the injury
Duty of care owed
Standard of care breached
Injury caused
Elements redefined: Product Liability
Defective products causing injury
Dangerous products triggering a duty to warn
Defences to Negligence:
Contributory negligence: negligence of an injured party that contributes to her own loss or injury
Failure to migate damage: duty to act reasonably and quickly to minimize the extent of damage
1. Invitee (licensee): person permitted by occupier to enter premises for business purposes
Duty owed: prevent injuries from hazards
Ex. shop owner must put up signs for wet floors for shoppers
2. Trespasser: person entering premises without occupier’s consent/permission
Duty owed: must not set out to harm the trespasser
Criminal offences: conversion and theft, deceit and fraud, trespass to land and break and enter, assault
and battery and criminal assault.
Public nuisance: interference with the lawful use of public amenities
Actions against wrongdoer brought only by gov’t agency on behalf of public as a whole
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Individual who is able to show a special injury that is substantially greater than that suffered by
other publics may bring an action for compensation against wrongdoer
Private nuisance:
Right of occupier to enjoy land free from interference such as excessive noise, contaminated soil
False Imprisonment:
Unlawfully constraining or confining a person
Ex. shop lifting: does not apply if info given to police and they arrest
Malicious Prosecution:
Causing someone to be prosecuted for a crime without an honest belief that the person
committed it
Defamation: Libel(written) and slander (spoken)
Making an untrue statement that injures the reputation of a person
The absolute defence is that the statement is true, BUT defendant must prove the truth of
Court will not award damages unless the plaintiff can demonstrate that the allegations are serious,
causing real and significant injury to her reputation
Immunity: letters of reference, speech in parliament in good faith
Economic Tort:
Product defamation: false or damaging statements about other people’s products
Passing off: representing your goods as someone else’s (ex. similar packaging)
Restore the injured party in the same position would have been if tort hadn’t occurred
Question: is it incompetence or negligence?
Potential Liability:
Duties set out in contract perform services with due of care
Breach of contractual promises gives rise to liability
Fiduciary duty
Special relationship of trust, reliance
Duty of care under tort law to persons who may foreseeably be injured by her negligence
No conflict of interest
No benefit to fiduciary at expense to client unless given informed consent
Usually sued for breach of contract but possible to sue in tort for negligence
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***third party may rely on advice of professional
Liability for Inaccurate Statements:
Knowingly make a falst statement
Conceal information
Intend to mislead
Negligent Misrepresentation
Statement that is incorrect and is made without due care for its accuracy
Being wrong is not negligence if proper steps taken to back up statements
Liability should be restricted to the use of the info for the same purpose as that for which
Standard of Care for Professionals:
Standard of the competent professional, not just any man on the street
Did the client rely and act upon the advice of the professional?
Would the client have acted in that way if he had not received that advice?
OFFER: tentative promise
Must be communicated in writing or by conduct
Person must be aware an offer has been made
Standard Forms:
in general, purchaser is bound by terms
purchaser must have notice of terms and have clear opportunity to refuse
Notice of Terms:
required notice: must take steps necessary to bring terms to attention of offeree
unusual/unexpected terms: brought directly to the attention of the offeree
1. between offer and acceptance
LAPSE: not accepted within time specified or within reasonable time if not specified
Lapsed offer cannot be accepted. Acceptance is new offer
Revocation must reach offeree before acceptance
OPTIONS: keep the offer open, not contract with anyone else, for specified time
2. rejecting the offer
once rejected void
CHANGING some terms in an offer is a COUNTEROFFER not accepting
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