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NEGLIGENCE
In Canada, a similar case was in 2005, Mustapha v.
Culligan was heard. The appelant (Mustapha)
claimed he suffered severe psychological harm
from the incident. The Supreme Court dismissed
the appeal for the purpose of Remoteness.
Duty of Care
Even if a person acted carelessly, they will not always be
liable in negligence. A defendant is only liable for an
injury to a plantiff if they have a duty towards them.
Standard of Care
The standard of care is the level of care expected of the
defendant. The purpose of Standard of Care is to look if
the person took the care that would have been given by
the average person in the profession.
Limitation Period
If a plantiff wishes to commence an action, he/she must
do so within two years of the time he/she knew or ought
to have known the facts giving rise to the claim.
Level of Proof: Balance of Probabilities
The elements of a negligence claim must be established
on a balance of probabilities ("more probable than not",
as opposed to the criminal justice system's concept of
"beyond a reasonable doubt"/Mens Rea, Actus Reus)
Causation
Causation asks the question "but for the negligent
action(s) of the defendant, would the plantiff have
suffered the injuries complained of?".
The CMPA (Only for Medical Malpractice)
If there is a Medical Malpractice lawsuit in Canada,
the Canadian Medical Protection Association will
work on behalf of the defendant. Because of their
vast resources, many chose to settle early and not
go to trial.
Remoteness
"Is the Plantiff's injury of the very nature for which we ask the
Defendant to take care?"
Wagon Mound 1: In cases involving property damage, reasonable
foreseeability of consequences makes you culpable and what
defines the extent of you liability.
Wagon Mound 2: In cases involving property damage, does the
magnitude of the potential accident overtake the seriousness of
the risk.
Causation
To dertermine if the Defendant's act caused the
Plantiff's injury, use the "but for" test.
"But for the defendants negligence, would the
Plantiff have suffered this injury?"
http://www.youtube.com/watch?v=4CXOp8Mtwo
Case Factors
Criminal/Public Law
Civil/Private Law
Parties involved
Grounds/reason
To determine innocence or
guilt of the accused
To resolve a dispute
Purpose of Action
To punish offender
Onus of proof
On Crown Attorney
Plaintiff
Burden of proof
Balance of probabilities
Result of action
Accused sentenced
If a person
assault
battery
trespass to land
takes someone's
belongings
theft
trespass to goods
Defences to Torts
Voluntary Assumption of Risk
Essentially, the Defendant must prove the Plantiff appreciated the risk involed
and willingly took it.
Contributory Negligence
Where the Plantiff had contibuted to the incident and the Defendant should not
be completely liable.
Inevitable Accident
The defence of inevitable accident requires the defendant to prove that
conditions beyond personal control occurred, and that an accident could not
have been avoided, even with great skill and care.
Informed Consent
Where the person is told of all risks to the activity they are doing, and agree to
go forward.
DAMAGES!!!!!!
Congratulations, the case has some merit :) (or not :l
).
Now, if the case is ruled in the plantiff's favour, they
can proceed to the resolution.
Which is almost always montetary compensation.
Types of Damages
b) Compesatory Damages
c) Punitive Damages
Civil Litigation tends to take a great deal of time and money to resolve.
Because of this expense, more and more people are now relying on
Alternative Dispute Resolutions (ADR). And now is mandatory in many
civil litigation cases due to the backlog and rationality of lawsuits.
Types of ADR
Negotiation
Parties communicate with each other and make their own
decisions. They will sign the deal as a contract and it is binding.
Mediation
Where a neutral third party is chosen to help make a decision.
The mediation is not binding, but if a resolution is found and
signed, than that agreement is binding.
Arbitration
Where the two parties find a neutral third party to hear both
arguments and make a final and binding decision.