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Western University
Philosophy 2080
James Hildebrand

Week 2 - Questions and Answers Chapters 4 and 5 Chapter 4 1. Q: Distinguish between the civil and criminal aspects of intentional torts, such as assault and battery or false imprisonment. A: There is always the simple distinction between any tort and a criminal offence. The tort is the notion of private redress for intentional interference, and usually involves the wrongdoer paying money to the harmed individual. Criminal law is pursued by the state, monetary compensation to the individual harmed is seldom the remedy, and the purpose is to deter the individual wrongdoer from future acts, as well as deter the public at large. The goal of criminal law is to punish and deter. A private tort does not result in a prison term for the party liable. Next, consider assault is defined under the Criminal Code in the same terms as battery in tort law, i.e. the intentional application of force on another person without their consent. Assault in tort law is the threat of violence. 3. Q: Under what circumstances might a person accused of assault and battery raise self-defense as justification? A: Where that accused person has applied force to protect themselves from a physical assault by another, where they had reasonable grounds to fear for their safety, and the force used was reasonable in the circumstances. * In the circumstances tells us that this is a question of fact for a judge or jury to decide when considering what happened. 5. Q: Distinguish between slander and libel. Why is libel generally considered more serious in the eyes of the law? A: Both are defamatory statements, slander is verbal, libel is written. Libel is more serious because it is accepted written statements have more permanence, and damage the reputation for a longer period, likely reaching a wider audience. 6. Q: Define qualified and absolute privilege, and explain the circumstances in which each might be claimed. A: Qualified privilege occurs when the defendant made a defamatory statement but made it in good faith and without malice. Absolute privilege occurs where the statement is made in a particular situation, such as parliament, or a court proceeding. It is absolute because the statement may be made with malice, and in bad faith, it is still protected by privilege and cannot be the subject of a law suit. 7. Q: How does the tort “trespass to land” arise? Must damage occur for the tort to be actionable? A: Any interference with the land of another, for example, actual physical occupation or traveling on, dust, noise, projectiles, tunneling under, even flying over at a height which interferes with the reasonable enjoyment of the occupier. No harm is required to succeed in this law suit. 10. Q: Explain the rationale behind the law that condemns as a tort any third party interference with the performance of contracts made between other persons. A: The rationale in question stems from the notion that intentional interference is a wrongful restraint of trade. We have an economy based on the proposition that free enterprise produces the best goods and the best prices. The more goods on the market, the more freedom to contract, then the healthier the economy. Intentionally interfering with someone else’s contractual relations is against the free market. In addition, it affects the victim’s freedom to contract, it is an intentional interference with another’s legal rights. Case 4 (7 and 8 editions): The issues are: Trespass: was the student trespassing when asked to leave? Likely yes, as the management has the right to eject a person whose behaviour is inappropriate. As the student is trespassing, the university could consider an action for trespassing. It is also likely university could recover damages to the window since the ejection was pursuant to removing a trespasser. False Imprisonment: the bouncer had physical control of the student while he ejected him from the premises. It could be argued that for the duration of time the bouncer had control of the student, the student was falsely imprisoned as his movements were confined. The difficulty for the student is that the bouncer’s actions were likely justified as reasonable and necessary to remove him as a trespasser. See the Criminal Code provisions that justify an arrest, it is likely the bouncer, as agent of the university, had the right to restrain, arrest, and remove the student. Assault: Same arguments as above, i.e. there was a lawful justification for the application of force, and in addition, on these facts it is likely the student applied force in a manner that justified self – defence on the part of the bouncer. It has also been indicated in the given facts that the student “fell against the door”. This could be an accident, or could be the result of excessive force. Remember, it is the nature of the act that determines liability and not the extent of damages. Given this, the student would argue the force applied was excessive, while the university would argue it was reasonable in the circumstances and the excessive injury was simply accidental. You decide, I think the facts are difficult to characterize with precision, but you can appreciate the arguments. Chapter 5 3. Q: Explain the concept of duty of care as it relates to liability in a tort action. A: There must be a legally recognized duty owed by the defendant to the person injured. 4. Q: Why are the concept of duty of care and reasonable person important in a case where negligence is alleged. A: These concepts provide the legal “nexus” or connection between plaintiff and defendant. You are only liable to those that you are legally responsible to protect. A legal responsibility occurs when it is reasonable to expect that careless actions may harm someone. 6. Q: How are the concepts of the reasonable person and foreseeability related? A: What is “reasonable” to foresee. This is an attempt to generate an objective standard to determine when someone should take care or pay the consequences of careless actions. A particular defendant cannot simply say they were too stupid to understand potential consequences, they will be held to a reasonable standard. 7. Q: Identify and explain the essential ingredients of unintentional tort liability. A: Duty of Care: again, the defendant must owe a duty to the plaintiff, it must be reasonably foreseeable that a person could be injured by the conduct alleged. Standard of Care: what is the reasonable standard of care in the circumstances. Eg. persons driving automobiles should do so with a proper license and training, should drive at a reasonable rate of speed, with their eyes
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