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TORT Lecture Notes.docx

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Western University
Philosophy 2080
James Hildebrand

September 18 2013Law A set of rules that are enforced by the state Rules are considered laws when they are enforced by the statePolice are considered agents of the stateCreated in a number of different waysCommon LawMade up of principlesMade up of reasonsIs judge made law collection of decisions made by judgesStarted around 1066 AD when England became a country o The king established a system of law o Gave you an opportunity to make a law that made some consistency o Over time more and more people came to the king so he appointed people judges to make the decisions o Once a law was made it became common all through England and consistent by writing down the decisions and storing them for crossreference o Referred to the precedents for future similar casesCommon law is the reasoning product from what previous judges madeThe principle for the decision becomes binding o Bindingthe rule that has to be followed for subsequent similar casesNot all of it is binding though just the reason is bindingThe reason for the decision becomes the legal principle also known as ratio decedendiAll of the other stuff that isnt binding is called obiter dictaThis includes this other part of the explanation how they came to the conclusionAdapts to social change but takes a long timeJudge made law is a judges interpretation of a statute o Statute law is law that is passedenacted by legislatures Legislation is created to change common law or to add in a law where there isnt one There is no tort for the invasion of privacyCommon law can include an interpretation by a judge each judge may interpret past cases differently and add to themJudicial interpretation forms new lawsBased on the balance of probabilitiesTrialsThe triers of fact decide the facts of a law case after hearing the evidence can be a judge or juryAnybody but lawyers that are 18 can be on the jury no special qualificationsTrial by combat was when you actually had to fight the other person but they realized that it was unfair for different sized peopleThus they allowed you to appoint a fighter o This graduated to having to get as many people as possible to agree with youAppealsWhen one person in the litigation of private law appeals the lawsuit after loosing at trialNo witnesses or evidence herePurely legal principlesIn no position to assess the credibility of the evidence o You can only appeal on a point of lawThe trial court in Ontario is called the Superior Court of JusticeNot binding on anybodyIs at the bottom The appeal court in Ontario is called the Appeal Court of Ontario and there is also the Divisional courtThe divisional court is lesser than the Appeal courtThere are 30 judges at the appeal court but 35 are typically hearing each appealBind on lesser courtsThe highest is the Supreme Court of CanadaDecisions binds on every court in CanadaOnly 9 judges here 59 hear each caseDissenting opinion can be turned into law but it is very rare o Only becomes common law if it is adopted as law later onMajority is the winning decisionThe concurring decision agrees with the result sometimes for different reasons o Say that they agree but that you need to consider this point as wellTort LawActionable wrongs o Actionable means something that is done that you can sue forNot everything can be sued for o Has got to be wrongLaw doesnt hold you accountable for accidentsPrivate lawsuitprivate party suing a private partyTwo primary varieties of Tort Law Intentional and UnintentionalIntentional Tort LawHistorically the original tortInherently wrong in themselvesCan have a concurrent liability in criminal lawThe law sees and protects your person reputation and property is importantActionable per se o Wrong in and of itself o You can be sued even if no one gets hurt Examples are o Trespass
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