Chapter 3 Introduction to Torts
Chapter 3: Introduction to Torts
Tort: generally consist of a failure to fulfill a private obligation that was imposed by law
Tort & Crimes
-Tort refers to a breach of a private obligation. An obligation in tort law is owed to a person
Tortfeasor: is a person who has committed a tort
Tort Law: is private, the defendant owes an obligation to the plaintiff, the plaintiff sues the defendant,
and the usual remedy is compensatory damages
Criminal Law: is public, the accused owes an obligation to society, the government prosecutes the
accused, and the remedy is punishment such as fine or imprisonment
Torts & Contracts
Structure: both tort and contract involve primary and secondary obligations. Primary obligations
tell people how they ought to act. Secondary obligations are remedial; they tell how they must
act after primary obligations have been broken.
Sources of Primary Obligations: obligations in tort are simply imposed by law. Obligations in
contracts are created by the parties.
Privity: when two people enter a contract, they create a special relationship for themselves. The
doctrine of privity states that the only people who can sue, or be sued, on a contract are the
parties themselves. Because obligations in tort are simply imposed by law, there is no need for
the parties to create a special relationship.
Compensation: the purpose of imposing obligations in tort law is to prevent harm. IF you have
breach your primary obligation, then you will have a secondary obligation to put me back into
the position that I enjoyed at the outset. In contracts, the purpose of creating obligations is
usually to provide benefits. If you breach your primary obligation you will be required to
Risk Management: because tort obligations are imposed by law, they are more likely to take a
person by surprise, and they may require more than a person is actually capable of providing.
Because obligations in contracts are created voluntarily, it should be vice versa.
Types of Torts
1) Intentional Torts: occurs when a person intentionally acts in certain ways. Some torts require
proof that the defendant intended to hurt the plaintiff. Others are satisfied by proof that the
defendant merely intended to act in a certain way, even if they did not realize that the plaintiff
would be hurt (assault, battery, intimidation, deceit, etc)
2) Negligence Torts: occur when a person acts carelessly (occupier’s liability, nuisance, negligence,
product liability, etc)
3) Strict Liability Torts: occurs when a person does something wrong without intending to do so
and without acting carelessly. It is enough that the defendant was responsible for the situation
that resulted in the plaintiff’s injury. Strict Liability torts create special problems for risk
management because they do not require proof of any sort of intentional or careless wrong
doing. Liability is imposed simply because the defendant was responsible for the situation that
injured the plaintiff. It would be unfair to impose liability on a person who did not intentionally
or carelessly cause the plaintiff’s injury. (animals)
General Principles of Tort Law
Liability Insurance: is a contract in which an insurance company agrees, in exchange for a price, to pay
damages on behalf of a person who incurs liability.
Duty to Defend: requires the insurance company to pay the expenses that are associated with lawsuits
brought against the insured party
-The defendant enters into a contract with insurance company by purchasing liability insurance, the
defendant commits a tort against the plaintiff, the insurance company pays damages to the plaintiff on
the defendant’s behalf
Liability Insurance creates tensions between Two of Tort Law’s most important Functions:
Compensatory Function: liability insurance contributes to the compensatory function which
aims to fully compensate people who are wrongfully injured. If a tortfeasor cannot personally
afford to pay damages, the plaintiff will not receive full compensation unless the defendant is
Deterrence Function: liability insurance undermines tort law’s deterrence function which
discourages people from committing torts by threatening to hold them liable for the losses that
Vicarious liability: occurs when an employer is held liable for a tort was that was committed by an
-It serves the tort law’s compensatory function by allowing the plaintiff to claim damages from both
employee and employer
-It serves the tort law’s deterrence function by encouraging employers to avoid unusually hazardous
activities and to hire the best people available
-An employer is not vicariously liable if an employee’s tort occurred completely outside of the
Independent Contractors: is a worker who is not as closely connected to the employer’s business as in
an employee. (employer is not held liable for independent contractors)
-the vicarious liability does not relieve the employee of responsibility
-the employer may be vicariously liable and personally liable in the same situation. Vicarious liability
occurs if the employer is responsible for an employee’s tort. Personal liability occurs if the employer is
responsible for its own tort.
-The victim of the tort can sue the employee which is personally liable for the tort. The victim can sue
the employer which they are vicariously liable for the employee’s tort. If the employer pays damages to
the victim, the employer may have the right to recover the amount from the employee.
Compensatory Damages: the defendant is required to pay for the losses that it causes the plaintiff to
suffer. Compensation in tort is designed to but the plaintiff back into the position it originally enjoyed,
compensation in contracts is designed to put the plaintiff forward into the position that the party
expected to enjoy after the contract was preformed. Note: the plaintiff can only recover damages for
only one of tort or contract = usually the one with most money
Remoteness: a loss is remote if it would be unfair to hold the defendant responsible for it. This
does not apply to intentional torts because it does not deserve any leniency in tort law
Mitigation: occurs when the plaintiff takes steps to minimize the losses that result from the
defendant’s tort. Compensatory damages are also limited by mitigation because it not available
for a loss that plaintiff unreasonably failed to mitigate.
Punitive Damages: are intended to punish the defendant. The Supreme Court of Canada has said that
in addition to committing a tort, the defendant must have acted in a harsh, vindictive, and malicious
Nominal Damages: can be award for some torts. They symbolically recognize the defendant
committed a tort even though the plaintiff did not suffer any loss. They are generally restricted to torts
that are actionable per se rather than being actionable upon proof of a loss.
Injunction: is a court order that requires the defendant to do something or refrain from doing
something. Example, closing down a business that killed your dog
Alternative Compensation Schemes
Alternative Compensation Schemes: is a system that allows a person who has suffered an injury to
received compensation without bringing an action in tort
1) Worker’s Compensation: workers generally lose the right to sue in tort for workplace injuries,
but in exchange, they gain the right to claim compensation form a fund without having to prove
that anyone was at fault for their injuries
2) No-Fault Insurance: apples to injuries that are caused by automotive accidents. Example, in
Manitoba and Quebec, victims of traffic accidents cannot sue in tort but they are entitled to
receive compensation from the scheme without have to prove that another driver was at fault.
Two Main Reasons for Alternative Compensation
-Tort law provides compensation only if a person is injured as a result of a wrongful act.
-Tort law is inefficient; it requires a great deal of time and expense.
Disadvantage: while they offer frequent compensation, they offer less of it.