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Law 2101 - Feb. 4.docx

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Department
Law
Course
Law 2101
Professor
Assorted
Semester
Winter

Description
Law 2101 Tuesday February 4 Tort Law Torts • We are the victims or perpetrators of torts on a daily basis (we just don’t sue each other for these torts all the time) What is a tort? • A tort is a civil wrong (but not a breach of contract) for which a plaintiff sues a defendant to obtain damages o Civil – it is a private action (one individual suing another individual/corporation, the state is not involved) o You have to commit the wrong against a particular individual o It is not a breach of contract  Contracts deal with people who are in a pre-existing relationship and agree to be bound by certain obligations  Torts often deal with complete strangers (eg. if you are negligent in your driving and cause injury to a stranger) o Plaintiff – the person who brings the claim o Defendant – the alleged wrongdoer o Damages – compensation for the wrong Tort Law vs. Criminal Law • A tort action is brought by a plaintiff (in criminal law, the Crown initiates proceedings) • Tort law seeks to redress a private wrong o The purpose of a criminal proceeding is to address the wrong being done to society • The goal is monetary compensation (damages) o The goal of criminal law is to impose a sentence against the accused (and if they are sentenced to a fine, it goes to the state, not the victim) • The defendant may be found ‘liable’ of a tort o In criminal law, the accused is found ‘guilty’ • There is a lower burden of proof in tort law o Criminal law  beyond a reasonable doubt (a high standard of proof) o Tort law  balance of probabilities o The burden of proof is higher in criminal law because we want to make really sure someone is guilty of the offence if they are going to jail  The police also have more investigatory power (have a higher chance of getting evidence beyond a reasonable doubt) • One act can give rise to both a criminal prosecution and a tort claim o eg. if I punch you in the face, I could be charged under a criminal offence, and you could sue me for the harm I have caused you o You could be acquitted in the criminal trial but liable in tort law (eg. OJ Simpson) Tort Law vs. Contract Law • Contract involves a prior agreement between parties with mutual obligations • Tort actions often involve strangers • Tortious obligations are imposed by law (the law imposes obligations on all of us not to hurt others in harmful acts) • Damages serve different purposes o Contracts – damages are meant to put the parties into the position they would have been in if the contract had been fulfilled (looking forwards) o Torts – puts the plaintiff back in the position had the wrong not occurred in the first place (looking backwards) Examples of Torts: • Battery • False Imprisonment • Malicious Prosecution • Negligence • Defamation Goals of Tort Law: Why do people sue? • Compensation • Deterrence • Vindication • Punishment 1. Compensation • The primary purpose of tort law, especially for the plaintiff, is to obtain monetary compensation • Barriers: o Fault requirement  You can only claim when there has been a wrong – sometimes you get injured because of bad luck o Expense of litigation  It costs a lot of money to hire a lawyer and can drag on for years  It also costs us a lot as a society to maintain the courts that decide tort cases o Defendant may not have money  They may be at fault for your injury, but unless they have the ability to pay, there is not much point in suing that person o Embarrassment  eg. sexual assault cases o Insufficient evidence o Disruptive of relationships  eg. an injury may have been caused by a husband to the wife as a result of negligence 2. Deterrence • Tort law aims to deter defendants from engaging in the same behaviour again • It depends on swiftness, certainty, and the severity of a penalty o The tort system is not great in terms of these 3 criteria • Problems: o Tort law may impose severe penalties, but it is neither swift nor certain o It is hard to deter negligence (carelessness) • Deterrence could help those who work in the media – so that they are aware of defamation • Manufacturers would want to take care that they wouldn’t be sued after the fact by putting warning labels on their products 3. Punishment • Has declined in importance with the growth of the criminal law system • There is the possibility of punitive damages, but they are rarely awarded in tort law o Punitive damages go above and beyond what is needed to compensate the plaintiff (just for the purposes of punishing the defendant) • Suggests some moral blameworthiness o This can be appropriate for some intentional torts (battery, fraud), but less so with negligence (we aren’t as worried about who is to blame) • The defendant is typically not the one to feel the brunt of the punishment (it is often paid by their insurance company, employer, etc…) 4. Vindication • It was more important historically when people sued for property-based torts o eg. in Medieval England, people wanted to
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