A Block Legal Studies - Remember, your civil law project involves letters to potential clients. You can find tips on plain language legal writing from the Canadian Bar Association. Plain language legal writing refers to legal writing that is well thought-out, well organized, and understandable to the client without interpretation: the language is clear, the legal concepts are explained and the technical terms are defined. For your Information, the professional code of conduct (ethics) for the BC Law Society states, it is a lawyer’s duty to:
- promote the interests of the state
- serve the cause of justice
- maintain the authority and dignity of the courts
- be faithful to clients
- be candid and courteous in relations with other lawyers
- demonstrate personal integrity.
So, what Defenses are there for Negligence?
The best defense is no duty of care (in other words you did not have a responsibility to the plaintiff). Another defense is that the Defendant actually met the Standard of Care expected (you acted in a manner that was responsible and brought no harm to the plaintiff). Other defenses include no actual loss or harm to the Plaintiff (although you may have been responsible for negligence, the plaintiff experienced no real harm to them) and…
1. Contributory Negligence – if the Plaintiff and Defendant are both negligent then damages can be split between them. In this the Defendant must establish that the Plaintiff was partially at fault
2. Voluntary Assumption of Risk – This implies that you accept factors that may lead to harm or injury. This means you assume risk. The Defendant must prove that the Plaintiff clearly knew the risk involved in their actions and chose to assume it. Waivers – are not always enforceable The Defendant must establish that the Plaintiff made a conscious decision to sign the waiver and knew what it implied.
For your project, there are a few things you should know about helping people in distress or need:
Lowering the Standard of Care
A. Emergency
1) The Emergency Medical Aid Act
A. Emergency
1) The Emergency Medical Aid Act
2. If, in respect of a person who is ill, injured or unconscious as the result of an accident or other emergency,
(a) a physician, registered health discipline member, or registered nurse voluntarily and without expectation of compensation or reward renders emergency medical services or first aid assistance and the services or assistance are not rendered at a hospital or other place having adequate medical facilities and equipment, or
(b) a person other than a person mentioned in clause (a) voluntarily renders emergency first aid assistance and that assistance is rendered at the immediate scene of the accident or emergency, the physician, registered health discipline member, registered nurse or other person is not liable for damages for injuries to or the death of that person alleged to have been caused by an act or omission on his part in rendering the medical services or first aid assistance, unless it is established that the injuries or death were caused by gross negligence on his part.
NOTE: This does not provide immunity but lowers the standard of care and protects rescuers up to gross negligence
GOOD SAMARITAN ACT [RSBC 1996] CHAPTER 172
Section 1: No liability for emergency aid unless gross negligence
Section 2:Exceptions
Section 3:Health Care (Consent) and Care Facility (Admission) Act
No liability for emergency aid unless gross negligence:
1 A person who renders emergency medical services or aid to an ill, injured or unconscious person, at the immediate scene of an accident or emergency that has caused the illness, injury or unconsciousness, is not liable for damages for injury to or death of that person caused by the person's act or omission in rendering the medical services or aid unless that person is grossly negligent.
Exceptions
2 Section 1 does not apply if the person rendering the medical services or aid
(a) is employed expressly for that purpose, or
(b) does so with a view to gain.
Health Care (Consent) and Care Facility (Admission) Act
3 The Health Care (Consent) and Care Facility (Admission) Act does not affect anything in this Act.
COMMON LAW: The Duty To Assist
As a general principle, common law does not require a bystander to help someone in peril - the priest and the Levite would not be liable for failing to assist the stranger. Common law jurisdictions generally rely on inducements - the carrot and stick approach - to persuade citizens to aid others by minimizing risk to themselves. However, several exceptions exist where failure to act could result in both civil and criminal liability. A "special relationship" may give rise to a duty to assist. Such a relationship exists when, for example, one party derives an economic advantage from the other. An employer may be obligated to assist an employee injured at work. In an accident, common carriers must assist passengers, and innkeepers must aid their quests. Although the spectrum of special relationships has not yet been determined by the courts, the scope will likely expand as it has in the United States.
Another exception occurs when a person creates a situation placing another in danger. A negligent motorist who causes an accident involving injuries is liable if he or she does not provide assistance. In some circumstances, a person is assumed to have a duty to assist because of the nature of his or her job. Policemen and Firemen, not good Samaritans since it is their job to assist in an emergency. In general, a good Samaritan is not paid for rescuing people in danger.
Risks Of A Good Samaritan
In Legal theory, the bystander is safe as long as he or she does absolutely nothing. But as soon as steps are taken to help, immunity for failing to act is removed. If a bystander decides to act as a good Samaritan and chooses to intervene, he or she will be liable to the victim if rescue actions were unreasonable, and indeed aggravated the plight of the sufferer.
So long as nothing is done to worsen the situation, a good Samaritan can abandon the rescue effort and leave the scene. A point is reached, however, when someone who intervenes is considered to have assumed a legal duty to act, but the rule and limits have not been tested.
The good Samaritan probably runs greater risk of being held liable for personal injury or damage to property to a third party than to the victim. But the old common law defense of necessity protects a rescuer from liability for trespass if the individual enters another's property or uses others' goods necessary to save lives or protect property. A good Samaritan can break into a garage and seize an axe to save a stranger trapped in a burning car.
Rights Of A Good Samaritan
What happens when a good Samaritan suffers injuries or damage to his or her property as a result of responding to a call for help? Courts formerly considered that risk of loss or injury was voluntarily assumed. Today, the rights of a good Samaritan to claim compensation depend mainly on whether the emergency was caused by another's negligence or fault. If danger is caused by the victim, the good Samaritan can claim compensation from the victim. If a third party causes the situation, both rescuer and victim can recover damages from that person.
The Ogopogo Case
The case of Horsley v MacLaren, 1970, represents a controversial example of the right to compensation. A guest (Matthews) on a power boat (the Ogopogo) owned by the defendant (MacLaren) fell overboard into Lake Ontario. MacLaren tried to rescue Matthews but was unsuccessful. Meanwhile, the plaintiff Horsley (another guest) attempted to save Matthews but both men drowned. The court held that MacLaren had a duty to rescue Matthews because of a special relationship - a power boat operator owed a duty of protective care to the passengers - and if negligent, MacLaren would be liable to Matthews (or his dependents).
Horsley, on the other hand, was a good samaritan with no duty to rescue Matthews. His only recourse was against MacLaren and his right to compensation depended on whether MacLaren had been negligent to Matthews, which the Supreme Court found not to be the case. Since MacLaren was not liable to Matthews, he could not be liable to Horsley.
Some help regarding the baseball case can be found at
City of Vancouver Standards of Maintenance By Law (look at section 5 Structural Conditions).
Some help regarding the amusement park and ski resort cases can be found at
SAFETY STANDARDS ACT [SBC 2003] CHAPTER 39 and at Safety Standards Act
SAFETY STANDARDS GENERAL REGULATION.
SAFETY STANDARDS GENERAL REGULATION.
B Block Human Geography - Today is your Culture Unit final test (Introduction to Culture, Language, Religion, and Ethnicity). It shouldn't take the block but you've got all the time you need.
C/D Blocks Social and Environmental Sciences - First block after lunch we are in the Library / Learning Commons to continue work on your environmental outreach project. This is a pretty important week for you because you really need to have your conversation questions dialled in for your interviews.In the second block you're with Young and we're back looking at Mauna Kea. Kānaka Maoli (Native Hawaiians) are the aboriginal people (and their descendants) of the Hawaiian islands. Their ancestors were the original Polynesians who sailed to Hawai’i and settled the islands around the 5th century AD. For Kānaka Maoli, according to tradition, the roots and fruits that provide for the next generations come from “Wao Akua”, the realm of the gods, the upper forested regions of the island watersheds. This mauna forms the 'ohe wai (bamboo water container) and hā mākua (parent stalk) of Hawai'i; it is a source of ola, life and well-being, for all of Hawai'i. In April 2013, the Thirty Meter Telescope project was approved, which would be the largest telescope ever built and its location would be on top of Mauna Kea. Its construction on a “sacred landscape”, replete with endangered species, ecological concerns, and ongoing cultural practices, continues to be a hot topic of debate and protest. The Kānaka Maoli descendants of this mauna, oppose irresponsible treatment of their mākua - the source of the water they drink, the soil they plant in, the sea they gather from, and the air they breathe - their birthplace and final resting place. They recognize recognize the summit of Maunakea as the piko of the ecological systems that sustain life for their 'āina (land), kai (sea), wai (waters), and kānaka (people).
So, you'll watch some of the Mauna Kea Native Hawaiian protest videos from last Thursday's blog post and then I'll have you work on your Mauna Kea questions below. Remember, use the following:
The Heart of the Hawaiian Peoples’ Arguments Against the Telescope on Mauna Kea By Doug Herman
Why Native Hawaiians are fighting to protect Maunakea from a telescope By Trisha Kehaulani Watson-Sproat
Also check out
Hundreds Continue to Gather at Mauna Kea by Chris Swartz
Indigenous Religious Traditions Sacred Land Project Mauna Kea
Indigenous Religious Traditions Sacred Land Project Mauna Kea
1. What is the history of the United States acquisition of Hawai'i? Look at Hawaiian Annexation or How the Americans destroyed the Kingdom of Hawaii or Americans overthrow Hawaiian monarchy to help.
2. What are the Kanaka Maoli (Native Hawaiian) beliefs surrounding the mountain?
3. What is “ceded lands” or "crown land" and how has it played a role in this conflict? Look at What Are the ‘Ceded Lands’ of Hawaii? to help
4. What agreements over astronomical use of the mountain have taken place?
5. What is the astronomical value of the location?
6. What are the ecological, economic and scientific impacts of currently operating telescopes at Mauna Kea?
7. What is the current proposal for construction of the Thirty Meter Telescope? - look for the Mauna kea Stewardship Oversight Authority (MKSOA)
8. Summarize the arguments for and against the construction of the TMT
9. In a perfect world, what is the "best outcome" solution to the conflict? Explain why you have that opinion
3. What is “ceded lands” or "crown land" and how has it played a role in this conflict? Look at What Are the ‘Ceded Lands’ of Hawaii? to help
4. What agreements over astronomical use of the mountain have taken place?
5. What is the astronomical value of the location?
6. What are the ecological, economic and scientific impacts of currently operating telescopes at Mauna Kea?
7. What is the current proposal for construction of the Thirty Meter Telescope? - look for the Mauna kea Stewardship Oversight Authority (MKSOA)
8. Summarize the arguments for and against the construction of the TMT
9. In a perfect world, what is the "best outcome" solution to the conflict? Explain why you have that opinion
Today's Fit...
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