Section 1 - The Law - An introduction

Two types of law: Criminal Law and Civil Law

Criminal Law: A wrong that is considered to be harmful to the state

Civil Law: The body of law concerned with civil or private rights and remedies. Civil law deals with wrongs originating in tort law or contract law

Tort Law: A private or civil wrong or injury, other than a breach of contract, for which the court will provide a remedy in the form of an action for damages

Two types of tort; intentional torts(assault, conversion of goods, and deceit) and unintentional torts(negligence, defamation, false arrest, nuisance, and trespass)

Contract Law: Civil wrongs such as a breach of contract can be remedied by court action instituted by the injured party.

For the majority of Canadians, the law relating to both criminal and civil matters is established in common law and statute law.

Common Law: The basic concept is that current court decisions must follow those made in cases having similar circumstances. This custom of standing by previous decisions is known as the Rule of Precedent. This ensures that justice is dispensed in an even-handed and consistent fashion. However Rules of Precedent are subject to change; sometimes precedent is overturned and a new one established. Circumstances change and a precedent established many years ago may no longer be considered legally, socially, or equitably valid.

Statute Law: Statute law is the written law and seen to be the most effective form of law. Statute law is created by federal and provincial legislation and supersedes or amends the common law. Statute laws emerge to address the need for changes to laws which are outdated or archaic and which no longer represent the values of a changing society.

The award determined by the courts constitutes damages for which the insured has been judged legally liable. As the point of an action in tort is to compensate victims for their losses, damages has come to mean compensation in money for the loss or damage suffered. The courts may award the following damages:

Compensatory Damages: Compensatory damages are intended to compensate the injured party for the bodily injury or property damage suffered. Compensatory damages awarded for bodily injury claims may be sub-classified as general or special in nature
General Damages: Damages which cannot be exactly determined in monetary terms, but reflect an amount that the court believes necessary to fairly compensate the aggrieved party. General damages are awarded for both pecuniary (economic) and non-pecuniary loss and include payment for: Pain and suffering, humiliation, embarrassment, loss of services and consortium, inconvenience, disfigurement, permanency, future earnings, future care
Special Damages: Damages which can be measured to an amount, and are often referred to as out of pocket expenses. They include: Doctor, dentist and specialist charges, hospital, clinic, or nursing home charges, nursing fees, charges for ambulance, medication, and prosthetics, travel expenses to and from doctors and hospitals, loss of earning capacity (from the date of accident to the date of settlement)

The amounts claimed for general and special damages must be contained in the statement of claim made by the plaintiff. The following factors can also impact on the amount of general and special damages awarded for bodily injuries: Extent of financial support provided by the injured party to his or her family, social position, reputation, financial circumstances, ability of the plaintiff's legal representative

The amount of the damages awarded for property damage is measured by the amount of the loss occasioned by the plaintiff. To determine this amount the same procedure is followed as would be used in assessing any claim to property insured under a property policy, essentially. The measure of loss is:
The difference in the value of tangible property before and after damage and; actual losses incurred as a result of loss of use of tangible property.

Exemplary or Punitive Damages:
Exemplary or punitive damages may be awarded to the plaintiff over and above those provided as compensatory damages. They often involve circumstances of violence, oppression, malice, fraud, wanton, or callous conduct on the part of the defendant. The purpose of such award is to punish defendants for their behavior or to make an example of them(it is also expected that others will notice the extent to which the courts view such wrongs and be deterred from committing the same tort). * Exemplary or punitive damages are very rarely awarded in Canada*

Nominal Damages:
In some cases a court award may be sought, if for no other reason than to establish the validity of the plaintiff's claim when a question of principal is at stake. When there is no substantial loss or injury to be compensated, the courts have awarded damages of a nominal sum. The awarding of such minimum amounts as $1 serves to discourage the pursuit of litigation when the costs of plaintiff's legal fees alone will exceed the amount of the potential award. Once an award for damages has been made the plaintiff is entitles to use whatever means as are available to collect such sums. This can include registering a writ of execution against the defendant's property and a garnishee of wages.

Remedies for Breach of Contract:
Generally, a contract is seen as a private matter between the parties and only those parties are permitted to take action for breach of contract. When there is a breach or failure to fulfill contractual obligations, the courts may rule in the following manner:

Provide for payment of damages to the injured party *An award for damages aims at placing the injured party in the same position as if the contract has been completed - The award is intended only to compensate the injured party for the loss, and not to punish the party responsible for the breach*
Enforce specific performance of the terms of the contract
Grant an injunction prohibiting a party to the contract from performing certain acts, or ensuring a party to the contract performs certain acts
Permit rescission of the contract so as to return the parties substantially to their pre-contract positions

*Actions for breach of contract must be commenced within a certain time or else the right to sue will be taken away. Each province has general limitations statute which prescribes the limitation period for taking legal action on certain contractual matters.

	Created by agallo about 8 years ago

Diploma/Certificado de qualificação profissional de nivel 3 CAIB (Chapter 1) Note on CAIB 3: Chapter 1 notes, created by agallo on 25/02/2016.