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Lecture 2

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York University
Administrative Studies
ADMS 2610
Robert Levine

Tort: the law of actionable wrongs between private individuals (as opposed to criminal law between individual and state) Actionable: recognized at law as something you can sue for DAMAGES: The usual remedy, means money judgment Purpose of damages in tort: to place the plaintiff in the same position it would have been in had the tort not occurred General: non – pecuniary loss, pain and suffering, difficult to quantify precisely Special: pecuniary, what is easily quantified in dollars and cents. Both general and special are based on compensation to pay for injury or loss Punitive: to punish, where defendant’s conduct is especially bad, deter that person from behaviour Exemplary: to make an example, where conduct is outrageous, judgment is to show disapproval of defendant’s conduct, to deter the public Nominal: small, not compensatory, can be a little as one dollar, *remember, even a monetary award of $1,000.00 can be classed as nominal damages INTENTIONAL TORT * remember, many intentional torts also are considered to be crimes, there may be liability both in tort (civil action) and criminal - criminal conviction - courts do not generally award damages - therefore, a party may want to sue to recover compensation for loss or injury Civil action: plaintiff sues defendant Criminal proceeding: crown charges defendant Tortfeasor: wrong doer, defendant in a tort action Assault – as a crime, under the Criminal Code, is the intentional application of force without consent, this is the tort definition of battery Assault as a tort = a threat onlyBattery – intentional actual application of force without consent DEFAMATION: 2 KindsLibel - defamatory statements that are published, more permanent, more serious Slander- defamatory statements that are verbal 2 other Defences: Absolute privilege: defence to slander or libel, can make statements regardless of truth of statements or malicious intent, very limited: Parliament, Royal Commission, court, coroner's inquest, etc. Qualified privilege: statements made in good faith, no malicious intent, even when facts believed true when made were discovered later not to be BRUCE v DYER, page 65 (7th edition), page 63 (8th edition) - what are the facts? Assault occurred after significant threat was administered.- what was the assault? Battery - who committed the assault? The Defendant (Dr. Dyer)- who succeeded in this case? Dr. Dyer- can you simply state the ratio decedendi? There was significant case for self defense, no over use of power was used. VANDER ZALM v. TIMES PUBLISHERS page 66 (7th edition), page 67 (8th edition) What is the case about?Defamatory Cartoon about a BC Minister.Who is the plaintiff? The Minister Vander Zalm Who is the defendant? Times PublishersWhat was the judgment, the reason for the judgment? In the appeals court, the judge found that no defamation had occurred as the cartoonist claimed it was his honest opinion.It was a fair comment Strict Liability (in the civil sense) - no matter how careful you are to avoid injuring others, if you do the above, you are liable. - eg: transporting hazardous waste Strict liability in the criminal or quasi- criminal (administrative) sense in the criminal sense: -- when charged with certain offences, once factual elements of the offence are made out by the crown, an accused person has the onus to show that he or she took reasonable care (due diligence) to avoid the injury Vicarious Liability:- employers are liable for the actions of an employee- tort committed within the scope of employer's business Proximate Cause:- had to show careless act was "proximate" (close) cause of injury- if some other intervening act caused injury, def not liable Duty of Care: - must be recognized and defined at law - found by determining if the plaintiff is a foreseeable plaintiff - duty owed to those who can be foreseeably harmed by your actions Negligence: - an act or omission without necessary caution or regard for safety of others that causes injury Negligence Analysis: 1. Duty of Care; is there a duty owed by the plaintiff to the def, foreseeability test, etc. 2. Standard of Care; what is a reasonable standard of care in the circumstances 3. Breach of Standard of Care; did the def breach the standard of care, (four factor test: i) what is the likelihood of injury, ii) the likely severity of injury,
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