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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