Torts: Not just for DessertAnymore
February 4, 2014
What is a tort?
Atort is a civil wrong (not a criminal act but a private wrong, between individuals and
corporations) (but not a breach of contract) for which a plaintiff sues a defendant (alleged
wrong doer) to obtain damages (money).
• Awrong is committed against an individual, cant be someone else
• Different then breach of contracts; which deal with pre existing obligations, in contrast
torts deal with wrongs between complete strangers, car crash= tort of negligence, can be
liable to other driver.
• Not decided in advance, general obligations we all owe to society; duty to not purposely
hurt each other
• Contracts deal with obligations imposed upon everybody
• Does not really care about reasons for why things were done
Tort Law vs. criminal law
• Tort action brought by plaintiff
o Possible for a tort act to also be a criminal act (punching someone, can be assault
(criminal) and battery (tort)
• Seeks to redress a private wrong, opposed to criminal law which aims to punish and
prevent society from doing the same thing
• Goal is monetary compensation (damages), whereas in criminal law, money goes to the
• Defendant may be found ‘liable’, in criminal law it is ‘guilty’
• Lower burden of proof, only ‘on balance of probability’ whereas in criminal law, its
‘beyond a reasonable doubt’
• In criminal law, there is a victim, but they are not the one charging the defendant, it is the
• In criminal law, police gather evidence BUT in tort law, there is no investigatory
evidence behind you such as police, you are the one getting the evidence
• Just because you are ‘liable’under tort law, you may not be ‘guilty beyond a reasonable
doubt’crown may drop the case even if you are liable under tort
Tort Law vs. Contract
• Contract involves prior agreement between parties, with mutual obligations’what will
happen in case one party breaks the contract
• Tort actions often involve strangers who just happen to be brought together, no prior
• Tortious obligations are imposed by law (not to hurt each other) • Damages serve different purposes; in contract, damages are meant to carry out original
obligations that you would have had, had the contract not been broken, forward- looking.
In tort law, you want to restore party to previous, usually uninjured position, put
them back to where they would have been in the first place
Examples of Torts
• False Imprisonment
• Malicious Prosecution
Goals of Tort Law: Why do people sue?
How well does tort law achieve these goals?
• Primary purpose of tort law, especially for plaintiff, is to obtain monetary compensation.
• Barriers (how well does tort law actually achieve monetary compensation)
o Fault requirement- can only claim when there has been a wrong, cant claim
compensation for an accident, or someplace where there is no fault
o Expense of litigation- expensive, costs a lot to hire lawyer, often drags on for
years, have to pay lawyer for a long time before actually receiving compensation
o Defendant may not have money- can point to someone at fault, but if they can
not pay, what is the point of suing?
o Embarrassment- perhaps it is sexual in nature, don’t want to talk about it, or if a
plastic surgery goes wrong.
o Insufficient evidence- may not have enough resources to find enough evidence
o Disruptive of relationships- if caused by someone close to you, it was because of
negligence, not going to want to bring a tort claim
Deterrence- laws ability to discourage defendant and other people from committing the
• Tort law aims to deter defendants from engaging in same behaviour again
• Depends on swiftness, certainty and severity of penalty
o Takes quite a bit of time
o Not certain you will get comoensation
o Penalties can be severe, but again, not usually defendant actually paying • Problem: tort law may impose severe penalties, but is neither swift nor certain
• Problem: hard to deter negligence (carelessness, people aren’t thinking about), hard to
deter people from being careless, for example, touching radio in car, nor purposely
looking away from road. Manufacturers have to be careful about this
• Historically important, but has declined in importance with growth of criminal law
system. Not usually associated with punishment like criminal law
• Possibility of “punitive damages” – rarely awarded; amount above and beyond what is
necessary to compensate victim. For example, enough money to cover medical care and
extra money on top of that. Rare in Canada.
• Suggests some moral blameworthiness on defendants behalf, can be important for
intentional torts, but not negligence.
• Defendant is typically not the one to feel the brunt of punishment, often employer or
• Historically important with respect to property
• Nominal damages may still be available, but are rarely worth pursuing
• May have some value in defamation- sometimes people want