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Final Exam Notes Chapters 3-20, 26-29, 33,34

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READING NOTESChapter 3The Law of TortsTort derives from French meaning wrong Tort is a wrong an injury done by one person to another whether intentional or unintentional This injury could be physical or financialScope of Tort LawRole of law of torts is to compensate victims for harm suffered from the activities of others while punishment is generally left to criminal lawBasic issue for society is to determine who should bear the lossTort law is an instrument for apportioning loss along with such others as insurance and government compensation schemesDevelopment of Tort ConceptIn early society it was common to have strict liability where anyone who causeddirect injury to another had to pay compensation regardless of faultGradually courts began to recognize indirect or consequential injuriesEvolved in two waysoTook into account the fault of the defendantoTook into account the causation whether the defendants conduct could be considered the cause of the harmThe Basis for LiabilityFaultoFault refers to blameworthy or culpable in the wrong conductconduct that in the eyes of the law is unjustifiable because itintentionally or carelessly disregards the interests of othersoJustification for liability on fault is in the hopes that it will act as a deterrent Strict Liability oAs mentioned before strict liability persists in some areas of modernlawPeople who collect potentially dangerous things on their land are liable for any resulting damage even if they are blameless Eg African Lion Safari case or Dog Owners LiabilityoA person who undertakes a dangerous activity should charge for his service according to the degree of risk and carry adequate insurance to compensate for possible harm done to othersoNote that in Canadian negligence cases standards of care increase proportionally with dangerSocial PolicyoThe basis of liability whether fault or strict liability is a question of policyPolicies change with social standards which consequently force the law to adapt in many waysoThe most radical proposals from the left would eliminate lawsuits for all personal injuries and compensate victims through a government schemeEg No fault insurance which makes insurance compulsory and eliminates fault as a basis for claimsEg Workers compensation where industrial accidents are seen as inevitable and employers must contribute to a fundVicarious LiabilityoHighlights an area where the law has responded to the pressure of social needs with respect to torts committed by employees in the course of their employmentoVicarious liability involves the liability of an employer to compensate for harm caused by an employeeEg If an employer instructs an employee to perform a dangerous task for which he knows the employee is not trainedoThe employer is liable even when he has given strict instructions to take proper care or not to do the act that causes the damageoJustificationsPrevents legally harmful demands from being placed upon employeesEmployees generally have limited assets available to pay compensationsBased upon fairness the person who makes the profit should also be liable for the lossNegligenceBy far negligence is the most common basis for legal actions in courtConcept is quite simple negligence involves anyone who carelessly cause injury to another should compensate the victim for that injuryElements of a Negligence actionsoDefendant owed plaintiff a duty of care value judgementoDefendant breached that carepolicy and factoDefendants conduct caused injury to the plaintiffwhat is causalNote All three requirements must be establishedDuty of Care ExtendedoPrinciple criterion of duty of care is that the alleged wrongdoer should have foreseen that his actions might do harmoOne cannot be expected to anticipate all possible consequences but would a normally intelligent and alert person have foreseen that this conduct would have likely caused harmHunt vs SuttonChristmas party with open bar ends with aparaplegic after a drunken employee refused a ride homeWoman drank a lot at the party then went to the hotel bar after thatHunt charged her employer with negligence because they knew she was drunk but didnt do enough to stop heroPlaintiff must go further and establish a duty of careDuty will arise only where the defendant could reasonably have foreseen a risk of harm to that plaintiff or someone in the plaintiffs positionEg Courier company was not held liable for delivering an article of mail too late for a private sale to be completed as it could not reasonably foresee the delay would cause a loss to some third party outside its relation with the client not allowed to read the mailoCourts have sometimes held that duty of care is owed to persons other than the individual who is directly injuredEg Court held driver liable whena mother died by emotional trauma of seeing son hit by the driver because that type of injury was foreseeableoCourt will consider any statutes with respect to the matterStandard of Care ExtendedoLaw places a general duty on every person to take reasonable care to avoid causing foreseeable injury to other persons and their propertyoStandard of care varies according to the activity in question such as a brain surgeon vs person on the subwayoCourt must balance competing interestsDegree of likelihood that harm will result from the activity as well as the potential severitySocial utility of the activity and the feasibility of eliminating the riskIe Where there is danger of a major catastrophe it would be unreasonable not to take every known precautionoIncreasingly legislation not only imposes duties but also sets out appropriate standard of care regulations for particular activities
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