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law notes 7 and 8


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VII. OBLIGATIONS BEYOND A CONTRACT: THE LAW OF TORTS A. Negligence, Contributory Negligence and Vicarious Liability (pg 51-66, 417-418) The Scope of Tort Law: Tort - a wrongful act done to a person or a property of another. Role of tort law is to compensate victims for harm suffered, or loss; punishment is left to criminal law. Example: automobile and industrial accidents. Development of the Tort Concept: Strict Liability - the reason for the injury or whether the conduct of the injurer was justified was not taken into consideration when determining liability (sole approach used in the past). BUT, gradually tort law evolved in 2 ways: (1) took into account fault of the defendant and (2) causation- if the conduct of the defendant could be considered the direct cause of the harm. The Basis for Liability: FAULT: Conduct that is unjustifiable because it intentionally or carelessly disregards the interests of others. Likelihood of criminal punishment and increased insurance premiums deters carelessness. But there is a tendency for victims to be over-compensated. STRICT LIABILITY: Some activities are dangerous regardless of the amount of care taken- example, transporting high explosives. In such cases, strict liability is imposed by legislation. If no legislation, than on account of negligence. SOCIAL POLICIY: A few alternatives to the tort approach are “non-fault” schemes : 1) Worker’s Compensation – employers must contribute to a fund used to compensate workers for industrial accidents, even when the employer is blameless.
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2) “No-fault” Insurance – a system of compulsory insurance that eliminates fault as a basis for claims. VICARIOUS LIABILITY: Employer may be found liable even when he has given instructions to take proper care or not to do an act that causes damage, and he’s held liable for criminal or negligent acts of an employee. WHY? Because, employees have little assets to pay compensation, and the person who makes a profit out of an activity should also be liable for any loss. Negligence: The careless causing of injury to the person or property of another. Establish the right to recover compensation, plaintiff must prove: 1) Defendant owed plaintiff a duty of care (value of judgement) 2) Defendant breached that duty (policy and fact) 3) Defendant’s conduct caused injury to the plaintiff (philosophy and fact) DUTY OF CARE: Relationship is so close that one must take reasonable steps to avoid causing harm to the other. Only if defendant could have reasonably foreseen the risk of harm Court must ask: how close the relationship was, and the limit of the scope of duty, the class of people to whom it is owed, or the damages to which a breach of it may give rise? Some duties are imposed by statute. A public body is liable even when statute doesn’t impose duty but only discretionary power (ex. Maintain a highway) STANDARD OF CARE: The level of care (reasonable) that a person must take in the circumstances
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