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Exploring Power Purchase Agreents the Basics Part 1 Transcript

By Herbert Fisher,2014-11-12 08:17
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Exploring Power Purchase Agreents the Basics Part 1 Transcript

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    TORTS SUMMARY

COMPONENTS OF A NEGLIGENCE ACTION

     duty of care

     standard of care and its breach

     causation

     remoteness

     defences

     damages

Burden of Proof (who has to prove what?)

     in a civil lawsuit, the burden is on the person who is alleging tort

     proof is on a balance of probabilities (has the plaintiff established it is more probable

    than not that, not the same as proof beyond a reasonable doubt)

     the defendant has the burden of proving defences

Duty of care

     Legal duty to exercise care owed to persons who fall within the ambit of foreseeable risk created by the defendant‘s actions (a question of law)

Breach of the standard of care

     Did the defendant do what a reasonable person would have done in the circumstances (objective test) a question of fact (need to look at the surrounding circumstances etc)

Causation

     the breach of the standard of care must have caused actual injury or loss to the plaintiff there must be actual injury/loss (tangible) suffered from the breach

Remoteness of Damages

     whether or not there is a reasonably proximate causal link btw the breach of duty and the harm (liability is generally limited to those losses that were reasonably foreseeable to result)

Defences

     damages may also be reduced or eliminated if plaintiff was contibutorily negligent, if there was voluntary assumption of the risk, if there was illegality, or other considerations (e.g. inevitable accident on defendant‘s part)

PROOF OF NEGLIGENCE

The Burden of Proof in a Negligence Action

     legal burden: burden of proving an issue on the balance of probabilities

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     evidentiary burden: burden of adducing evidence that, if believed, is capable of meeting the legal burden

     tactical burden: strategic need to adduce evidence

WAKELIN V. LONDON AND SOUTH WESTERN RY. CO., (1886) (HL)

     plaintiff‘s husband found to be run over by train

     in original trial, jury found that D was negligent

    - Brett M.R. (Court of Appeal) P bound to give evidence of negligence on part

    of defendant AND to give prima facie evidence that the deceased was not guilty

    of negligence contributing to the accident

    - Believed P did not show prima facie case did not demonstrate that husband

    wasn‘t contributorily negligent (at that time, if found cont. neg. then would get no

    recovery at all)

    - Lord Watson (majority) if P is able to show that negligence of defendants

    materially contributed to injury, in the absence of any counter-evidence from

    defendant, ought to be presumed that there was no contributory negligence

    ; burden of proving CN is on defendant

     claim failed, b/c P did not show prima facie case of causation against D P‘s evidence showed that railway‘s negligence was a POSSIBLE cause, but that not enough to satisfy burden of proof has to be a PROBABLE cause

    Exceptions to the General Principles Governing the Burden of Proof

    a) statutes can alter common law rules

    b) directly caused injury

    c) multiple negligent defendants

Statutes and Shifting Burdens of Proof

MACDONALD V. WOODARD, (1974) (ONT. CO. CT.)

     plaintiff, service station provider stood in front of D‘s car after boosting battery, struck by D‘s car

    - res ipsa loquitur doctrine used in s.193(1) of HTA owner or driver is prima

    facie liable for damage caused by his motor vehicle unless he satisfied the Court

    on a preponderance of evidence that he was not in fact negligent

    - P need only show that the collision, and not the conduct of the driver, was the

    cause of the damage

    -s.193(1) shifts BOP onto defendant - P has to show that damage occurred by

    motor vehicle, then the onus shifts onto def to disprove negligence (i.e. that his

    conduct did not negligently cause the damage)

    -if D cannot disprove, then found negligent in this case, Woodward could not

    satisfy the onus s. 193(1) shifted on him

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    HIGHWAY TRAFFIC ACT, R.S.O. 1990, c. H-8, s. 193 (page S37)

Onus of Disproving Negligence

193(1) When loss or damage is sustained by any person by reason of a motor vehicle

    on a highway, the onus of proof that the loss or damage did not arise through the negligence of the driver or improper conduct of the owner or driver of the motor vehicle is upon the owner or driver.

    (2) This section does not apply in cases of a collision btw motor vehicles or to an action brought by a passenger in a motor vehicle in respect of any injuries sustained while a passenger.

―highway‖ includes public highway, street, driveway, bridge…

    ―motor vehicle‖ includes automobile, motorcycle…farm-tractor…

PARENTAL RESPONSIBILITY ACT 2000, S.O. 2000, c. 4 (page S37)

An Act to make parents responsible for wrongful acts intentionally committed by

    their children

     Reverses the burden of proof for the standard of care onus is on the defendant

    parents to prove, in cases where a child takes, damages, or destroys property, (Small Claims Court), as well as for personal injury or death caused by the fault of child, that the parent exercised reasonable supervision and control over the child at the time the child engaged in the activity, and made reasonable efforts to prevent or discourage child from engaging in the kind of activity that resulted in the loss or damage. Also has to prove that the activity that caused the loss or damage was not intentional. Various factors ct considers include: age of child, prior conduct, potential danger of activity etc.

     Where more than one parent is liable in an action brought under this Act for a child‘s activity, their liability is joint and several.

SHANNON v. T.W. (2002) (ON Small Claims Ct)

     boys stole jewellery and other items from P‘s home during summer holidays when parents were away at work

     action commenced under Parental Responsibility Act

     P relied on s. 2 saying parents had failed to properly monitor and exercise supervision over kids, should not have left them alone

     judge held that it was reasonable to leave 10 yr old one under charge of 16 yr old one the standard imposed by the Act is one of reasonableness, not perfection parents are not required to establish that they arranged for children to have the best type of supervision available

     only need to establish that child was provided with reasonable supervision

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Directly Caused Injury: Unintended Trespass

DAHLBERG V. NAYDIUK, (1969) (MAN. C.A.)

     D fired at deer, missed deer but hit P working on his farm

    - P sues under 2 causes of action: negligence and trespass

    - rule in trespass (intentional tort) is that when plain has shown trespass, it is up to

    defendant to prove the absence of intention and absence of negligence

    - -in this case, D failed to meet that onus

NON-MARINE UNDERWRITERS, LLOYDS OF LONDON V. SCALERA, (2000) (S.C.C.)

     several bus drivers were alleged to have sexually assaulted P

     claim of trespass to the person (battery a type of trespass to person)

    Battery Cases