Insurance & Liability
What is liability insurance?
Indemnification by an insurer in the event that tort liability is imposed on the insured
Name the three types of damages that can be awarded under tort law?
1. Compensatory damages
2. Punitive damages
3. Nominal damages
What is the main difference between assault and battery?
Assault is the reasonable belief of imminent offensive contact, whereas Battery is the offensive contact itself, regardless of the belief
What is a Chattel?
A fancy legal word for someone's personal property
What are the two umbrellas defences to intentional torts can fall under?
1. Complete defence
2. Partial defence
What situations are vicarious liability most commonly imposed?
Employer / employee situations
Name the two types of equitable remedies most commonly seen under tort?
1. Specific performance
2. Injunctions
Name the two types of false imprisonment
1. Physical
2. Psychological
What is the most common remedy awarded for Trespass to Chattel?
Compensatory damages
- Tort usually involves chattel being used without consent and then damaged or destroyed, so other remedies not available
An intruder breaks int your house and begins attempting to attack you. You grab the baseball bat sitting in the corner of the room and knock them unconscious with it. What defence is best to use if he sues you for Battery?
Self-defence
What is the best way for employers to shift the risk of vicarious liability to their workers?
By hiring independent contractors
What are nominal damages?
Symbolic recognition that the defendant committed a tort even though the plaintiff did not suffer any loss
Name one tort that indirectly protects privacy
One of: Trespass to land, Breach of confidence, Abuse of Private Information, Misappropriation of Personality, Negligence, Intrusion Upon Seclusion
What is the remedy of Recaption?
Re-acquisition of a chattel by its rightful owner using reasonable force
Your dog, Bob, escapes from your backyard and runs across the street to chase a rabbit. While chasing the rabbit, Bob takes out the legs of a lady, Karen, who was jogging on the sidewalk. Karen falls and gashes her elbow. You run out after Bob to see Karen down on the ground and check to see if she's okay. You give her your contact info and advise her to go to the hospital for her hurt elbow. Karen instead does not go to the hospital and goes home to fix the wound herself. The wound ends up becoming infected and she becomes hospitalized for multiple weeks. Karen then sues you for her time away from work due to the hospitalization.
You know that you are strictly liable for Bob's actions, but begin thinking of alternative defences to Karen's claim. What is your best defence in this situation?
Claiming Contributory Negligence on Karen's failure to mitigate losses from the gash on her elbow at the time it occurred
What types of torts are typically not covered under liability insurance?
Intentional torts
In what situations is specific performance more likely to be granted over compensatory damages?
When the tort involves something unique or rare that cannot be replaced by money i.e. family heirloom, rare art, land
What three elements must be proven in order for a Malicious Prosecution claim to have grounds?
Plaintiff must prove the defendant started the proceedings:
1. out of malice or some improper purpose
2. Without honest belief in guilt on reasonable grounds
3. Plaintiff was not found guilty of the crime
What is the tort of Detinue?
A failure to return a chattel the plaintiff is entitled to possess
After a night out at the Pint with your friend, they ask you to drive them home in their car because they've had too much to drink and you remained sober. On the drive home you hit a patch of black ice and slide into a pole, smashing the front headlight on the car. Your friend sues you for the damage to the vehicle. What is your best defence against the claim?
The defence of consent
- Your friend consented to you driving their vehicle and the risks associated with it
What are the four ways which an insurer can shift their risk back to the insured?
1. Scope of coverage --> Specifying situations the coverage applies to
2. Deductibles --? Requiring the insured party to cover a minimum amount of the claim
3. Caps & limitations --> Puts a maximum on how much the insurer will cover for the claim
4. Exclusions & exemptions --> Specifies situations where the insured is not eligible to make a claim
Why do Courts prefer to order injunctions over specific performance?
Because of the positive versus negative action requirements and limiting rights
- Specific performance legally requires that a person undertake a specific action, whereas injunction allows you to retain all of your rights of action except for the action with the injunction against it
What is the tort of Intrusion Upon Seclusion?
When a defendant's intentional or reckless conduct invaded, without lawful justification, the plaintiff's private affairs or concerns where a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish
- There does not need to be any damage for the claim to have merit
What is the tort of Conversion?
When someone intentionally deals with another person's personal property in a way that is seriously inconsistent with the owner's rights, effectively treating the property as their own
- This usually means selling property that does not belong to them
You and some friends are on your yacht off the coast of Victoria having a good time when a massive storm rolls in without warning. The swells begin to take control of your boat away from your port. You're very concerned about capsizing when you see a small port only a short distance away. You begin steering your boat towards the port, but are unable to dock safely and crash into the port causing significant damage. The port owners sue you for damage to their property, as well as Trespass to Land.
What is your best defence against the claim of Trespass to Land?