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LS101 – Oct.1.doc

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University of Waterloo
Legal Studies
LS 101
Frances Chapman

LS101 – Oct.1 01/10/2007 19:58:00 ← TORT LAW ← ← Tort law comes under the heading of civil law (as opposed to criminal law) • When one party has caused harm or injury to another party or that party’s property • Only used in the absence of contracts (would otherwise go under contract law, not torts) • Seeking compensation for private injuries • Used to compensate private wrongs (not a public matter) ← ← Victim (Plaintiff) v. Tortfeasor (Tortfeasor/Defendant) ← = Jones v. Smith ← ← CRIMINAL LAW • Looks at something that affects all of society – very public • Purpose is to punish the accused • Crime against the state – the Queen (or Crown) takes over the case and it becomes the Crown against the accused • There are some overlaps – civil suit can also be filed against the accused (the criminal suit would come first though – civil law case would have to be stayed) ← CIVIL LAW • Compensate victims (money) – is only worth starting if the accused will actually be able to pay • Wrong against another individual or entity ← ← Beyond a reasonable doubt (criminal) / Balance of probabilities (civil) • One of the biggest differences between the two systems • In civil, it is ‘how much more likely that the accused is guilty vs. innocent’ ← ← STRICT LIABILITY • Guilty – BUT • Can argue “due diligence” • Let the accused prove that they did everything reasonably possible to avoid the occurrence ← ABSOLUTE LIABILITY • Guilty – no matter what the BUT is • Very few absolute liability cases as it doesn’t give the accused a chance to defend themselves • However, most product liability cases are ‘absolutely liability’ cases ← VICARIOUS LIABILITY • Somebody else responsible • E.g. employer/employee – employer could be partly responsible for a tort committed by the employee • In some provinces, parents are liable for the acts of their children (school acts in BC) ← JOINT LIABILITY • Group of people are all responsible for the tort committed • Looking for the ‘deep pockets’ • E.g employee/employer – the plaintiff would collect from the person who would be best able to pay • E..g business partners ← ← REMEDIES ← Special damages • Easy to calculate a dollar amount ← General damages ← Punitive damages • To punish the person and deter others from committing the same tort • Not common, but court will use it to really emphasize a message ← Injunction • Order person to stop doing something o Replevin  Order accused to return the victim’s goods ← ← INTENTIONAL TORTS and NEGLIGENCE • Two major categories of torts • Carelessness is negligence – not willful or deliberate • Intentional torts are willful actions – even if the accused did not foresee the damages that could occur, the intent to commit the act is enough • Most torts have to do with negligence ← Negligence • All about the relationship between the victim and tortfeasor • Negligent if they fail to do what a reasonable person would expect to do in that situation – standards of the community (geographical or doctors, police officers etc.) • 5 steps o DUTY OF CARE  Was there a duty on the defendant to be careful or was there no obligation?  Reasonable foreseeability test  ‘snail in bottle’ case – there is a relationship between the manufacturer and consumer  Failure to act  Nonfeasance – failure to act (usually not a tort unless there is a statutory obligation)  Misfeasance – acts, but improperly o STANDARD OF CARE  Reasonable person test – artificial, relatively high standard  Standard of risk – e.g. driver with fruit produce vs. driver with a load of plutonium  Is there a motivation or justification? (e.g. ambulance driver vs. student running late)  Industry standards – any precedent?  Occupier’s duty
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