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Law 2101 - Feb. 6.docx

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Western University
Law 2101

Law 2101 Thursday February 6 Tort Law Intentional Torts II Tort Law Damages • Goal: to restore the plaintiff to the position he/she would have been in had the tort not occurred o It can be hard to assign a monetary amount to someone’s injury, but we try to quantify it as best as we can • Types: o Compensatory o Aggravated o Punitive o Nominal o Trifling Compensatory Damages • Compensate the plaintiff for losses that have been suffered or will be suffered as a result of the tort • The plaintiff has the burden of proving damages o It is quite easy to prove damages prior to trial (eg. receipts for physiotherapy, you know how much you’ve lost in wages), but it’s harder to determine what the future losses will be (especially for a young person) • Examples: o Medical expenses (past and future) o Lost wages (past and future) o Property damages o Pain and suffering  It can be hard to put a dollar amount on this  The Canadian courts take a functional approach (What kind of function will this money serve for the person? How much money will it take to make the plaintiff’s life enjoyable again?) Aggravated Damages • A subset of compensatory damages that compensate the plaintiff for humiliation and indignity suffered because of the way that the tort was committed • Example: a simple battery vs. a battery committed in front of co-workers o It is more humiliating to be beaten up in front of your co-workers • Example: false imprisonment vs. false imprisonment with degrading behaviour and conditions o Degrading conditions would give rise to aggravated damages (it is a worse case of false imprisonment) Punitive Damages • Do not correspond to any losses suffered by the plaintiff • Awarded solely for the purposes of punishing the defendant for malicious, high- handed, or socially offensive behaviour • Awarded only when necessary to denounce the defendant’s behaviour • Case: Whiten v. Pilot Insurance o The plaintiff’s house had burned down, but the insurance company accused the plaintiffs of burning their own house down (with no evidence) and delayed the claim for years. The insurance company was forced to pay punitive damages for the way they had treated the plaintiffs. Punitive damages are necessary because otherwise there is no downside to the insurance company turning people away. Nominal and Trifling Damages • Nominal damages: Awarded to vindicate the plaintiff’s rights where the plaintiff has suffered no material loss. These are only available for some torts (eg. battery, trespassing). They are not available for negligence. o eg. these may be given to a physician who gave a patient a blood transfusion without their consent (there is no physical loss, but a violation of the patient’s autonomy) • Trifling damages: Awarded where the plaintiff has a technically valid claim but has essentially wasted the court’s time. These are awarded as an insult to the plaintiff. o eg. you bring someone to court for walking across your lawn (technically they have trespassed, but you haven’t been hurt in any way) Example of Damage Award for Personal Injury: • Compensatory damages: $250,000 (expenses, lost wages, pain and suffering) • Aggravated damages: $20,000 • Punitive damages: $30,000 o Punitive damages tend to be a lot higher in the United States (in part because they have more jury trials which can sometimes be more harsh when dealing with corporate defendants) Defences to Intentional Torts • Consent • Self-defence • Defence of third parties • Defences not discussed: o Legal authority (that there was lawful authority for the false imprisonment, etc…) o Defence of property (applies when you use force to remove someone from your own property)  Similar to self-defence, but the courts are less protective of property than of people 1. Consent • Defendant is not liable if the plaintiff consented to the alleged actions (battery, imprisonment, etc…) • Consent can be expressed or implied o Expressed – if you sign a consent form o Implied – if you engage in a fist fight you give consent to be punched, if you hold out your arm you are giving consent to have a flu shot • Extends to risks normally inherent in that act o eg. if you consent to a fist fight, you would consent to being punched, but not to being hurt with a weapon o Case: Wright v. McLean  Som
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