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Tort Law

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schoolstudycanada's version from 2018-05-29 17:23

Section 1

Question Answer
Next FriendPerson who represents a minor when minor initiates lawsuit
Guardian Ad LitemAdult who represents minor when they are being sued
PlaintiffContacts lawyer with reason for suing
Statement of claimLegal document which describes the reasons for the lawsuit and the desired outcome/way-to-fix
Examination of discoveryLawyers disclose all documents to opposing side, witnesses are questioned by opposing lawyer.
General DamagesItems that do not dollar value (pain, suffering, mental stress, loss of skill).
Pecuniary damagesLost of future salary
Non-pecuniary damagesPain and suffering ($280,000)
Special damagesExpenses paid by plaintiff where recipt exists
Punitive damagesDamages paid. Used as detterant
Nominal damagesSmall sum of money done as moral victory.
Replevin(non monetary judgement) Court order requiring person to give up possessions of a good/goods to another
Specific performance(non monetary judgement) Court order requiring someone to fulfill terms of a contract
Injunctions(non monetary judgement) Court order that directs a person for inaction (prevents them from doing something)
Enforcing judgements- Examination of debtor
- garnishment
- Execution seizing assets
- automobile judgements
- motor vehicle liability insurance
- no-fault insurance
- workers compensation
Examination of debtorProcess where debtors financial ability is analysed
GarnishmentProcess wehre money/goods are taken
Execution seizing assetsSeize assets directly
Automobile judgementsDrivers license suspended until judgement is paid
Motor vehicle liability insuranceInsurance compensates injured person
No-fault insuranceProvides immediate funds without evidence of fault.
Workers compensationHelp injured workers obtain compensation more easily; payment made to employer and benifits are given despite who is at fault.
- covers medical expenses and PART OF lost wages, they offer DEATH BENEFIT
- Claim must be made within 6 months from the day of accident/day first sick
MediationThird party brings two sides together to make comprimise
ArbitrationThird party listens to both sides and makes their own decision
memorize

Section 2

Question Answer
PartiesPublic = crown v defendant
Plaintiff v. Defendant
Breach of: in Public lawFederal Statues
Bread of: in Private lawCommon law or statute law
Purpose of Public law:- protection of society
- rehabilitation of accused
- detterrence of other criminals
- Punishment of accused
Purpose of Private Law:
-Resolution of disputes between private citizens
Action in Public lawProsecution
Action in private law:Lawsuit
Remedy in public lawPunishment of accused
Remedy in private lawcompensation
Burden of proof in public lawCrown, unless it is reverse-onus situation
Burden of proof in Private lawPlaintiff has the burden of proof
Proof required in Public LawMust show BEYOND A REASONABLE DOUBT
Proof required in Private LawBalance of probabilities, who's version was more likely to have occured
Courts in public lawOntario courts of justice, general division
Court in private lawSuperior court of justie, small claims court
Case examples of public- fraud - arson - theft - murder
Case exampels of private law- breach of contract - slander - landlord and tenant dispute - small claims
memorize

Section 3

Question Answer
Purpose of tort law
Types of tortsIntentional, Unintentional, strict liability, vicarious liability, occupiers liability
Unintentional tortsAre injuries which came as a result of an action or accident which was not meant to cause harm
NegligenceNot doing or omitting something that a reasonable person would do/not do
Duty of careObligation to forsee and avoid careless actions that might cause harm (to others)
Breach of dury of careWhen is it established that duty of care owed by the defendant was not present
NeighborAnyone who can be reasonably forseen to be harmed by an action
Standard of careDegree/level of caution expected of a reasonable person
Reasonable personPerson who is careful, thoughtful, normal intelligence
Professional liabilityindividual who's special skill and training makes them have a higher standard of care
Specialized standard of careThe standard of care for professional liability
Neighboor principleeveryone owes a duty of care to not hard their neighbour by carelessness or neglect
Medical negligenceConsent to a medical procedure must be informed and voluntary and doctors must disclose and related risks
For unintentional tort the burden of proof is on...The plaintiff, who must prove harm or loss
CausationDefendant must prove defendants negligent conduct was a direct cause of the plaintiff's loss or injury
Cause-in-factDetermined using the "but for" rule, where a reaction is given with "but for the defendants actions".
RemotenessThere must be a DIRECT connection between the wrong and the injury.
- defendant must have been able to forsee that their actions would have caused such injury
-
Product liablityDeals with negligence of manufacturers
Occupiers libilityPeople who own/occupy property have a duty to maintain the property so that no one is injured
Vicarious liabilityLegal responsibility for negligence of another person
Strict liabilityApplies when activity or situation is so dangerous that when injury occurs, the plaintiff does not have to prove the defendant was negligent
Defenes to negligenceContributory
- Volontary assumtion
- inevitable accident
- act of god
- valid explanation
ContributoryBoth plaintiff and defendant were negligent to some degree, damages may be split
Volontary assumptionArgument that plaintiff voluntary assumed risk
Inevitable accidentDefence that no matter what happend, the plaintiff would still have been injured as an uncontrollable event occured
Act of godHarm or loss from something which is unavoidable (and god-like). e.g: lightning
Valid explanationDefence that accident occured for a valid reason even if the defendant took every precaution
Statute of limitationstime limit in which legal action may be taken
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Section 4

Question Answer
Intentional tort"oldest wrong recognized by courts". Torts in which one person deliberatly causes harm or loss to another person
TortfessorThe defendant (accused)
What is essential for tort?Intent, motive is not essential. However in cases of self defence it works.
Intentional tort must:- cause harm/injury
- must have no remedy provided by statute (?)
- defentant must violate duty or responsibility owed to plaintiff
- be recognized by law within a BROAD AREA
Types of tort- assault and bettery
- sexual assault
- medical assault and berry
- false imprisonment
- malicious persecution
- Infliction of mental suffering
- invasion of privacy
- Trespass to property
- Nuisance
- Defamation of character
Conversionequal to theft in criminal law
DefamationLibel & slander
ParliamentariansAbsolute privilege
TeachersQualified privilege
Reporters fair comment
AssaultThreat made by one person to cause bodily harm to another person with reasonable belief by other person that such an event will occur. (takes place in mind of victim, can be done by words)
Battery- application of violence
- does not have to be severe
- does not have to be an act of malice (hugging)
- does not have to be serious, only offensive
Sexual assaultAssault of a person in a sexual manner
Medical assault & batteryPatient is complaining about the level of treatment given.
- doctor must have obtained consent
- doctor may apply procedures necessary to protect life & safety of patient (could the action have waited for consent)
False imprisonmentUnlawful restraint of a person against their will and without justification.
Anything that restricts their movement/prevent them from leaving their position
Malicious PersecutionProsecution without reasonable/probably grounds
Infliction of mental sufferingVerbal assault that causes shock/mental anguish to another person
Trespass to propertyNo damages need to occur. The addition of any foreign object (body or other) without permission onto private property
Defences for trespass to person- consent
- self-defence
- defence of third party
- Legal authority
Self defenceProvocation CANNOT be used in tort
Defence of a third party????
Legal authorityPolice, store detectives, correction by teacher or parent
Defences for trespass to land- necessity
- defence to property
- legal authority
- statutory authority
NecessityExcused if action was necessary and there was no reasonable excuse
Defence of propertyOccupier may use force to expel an intruder. However, they must ask the intruder to leave before reasonable force is used
Private NuisanceUnreasonable and substantially interfering with someones enjoyment of property
Public NuisanceRefers to community at large
Defences to Nuisance- Prescription (existed for 20 years or more)
- Legal authority
Defamation of characterIntentional or unintentional interference with persons reputation
Defences- the truth
- absolute privilege
- qualified privilege
- fair comment
memorize