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Tort Master Notes.doc

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Philosophy 2080
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Wednesday September 11 2002 Lord Ordinary Trial JudgeStare Decisis Decision stands The system of precedents ie binding decisionsRatio Decedendi Reason for the decision Obiter Dicta Things said by the way ie not binding Wednesday September 18 2002Introduction to Tort LawTort An actionable wrong ie that you can sue forCause of Action LawsuitPlaintiffPerson doing the suing aka AppellantDefendant Def Person being sued aka Respondent Unintentional TortNegligence These types of torts are wrongs because the Def didnt consider that heshe could harm someone with hisher actions This makes the actions blameworthy Intentional TortsActionable Per Se Proof of harm is not necessary to succeed with these wrongs eg libelslander trespassing nuisanceUnintentional tort oYou did that act on purpose what if you unintentional how can we fault liability if they were being careless if they lack the attention of care oIf your negligent and you do something but you cant prove that it caused a lose then you lose your case harm loss injury Elements of a negligence case oDuty of care oStandard of Care oBreach of Standard oCausation oDamages In a civil action thehas to prove the case ie the onusburden of proof is on theIn order to succeed with the case thehas to prove hisher case based on a balance of probabilities ie 5149 as the standard of proof PleadingsIn Ontario this is a written statement of claim to set out what thewill be trying to prove in court The Def lawyer doesnt really need evidence but sometimes uses heshe just tries to poke holes in thecase Some other examples of torts are as follows Assaultthreat unlike in Criminal law where assault is the actionBatteryintentional application of force without consent eg in cases of surgeryTo prove a negligence case the following five things need to be proven 1Duty of Care2Standard of Careie accepted standard of behaviour in these circumstances 3Breach of Standard of Care4Causationie the wrong done by the Def is what caused the injury 5Damagesie cant be too remote Harm is necessary in negligence cases ie unintentional tortsThe questions which are addressed in a tort case include Was injury to the plaintiff foreseeable to a reasonable person in the position of the Defendant Did the Def take appropriate care to avoid the injury of others Was it the Defendants conduct which caused injury to theTwo Conceptions of Tort Lawby Ernest J WeinribThis essay tries to show the dichotomy between the BritishCanadian system and the US oneThere is more credibility in the Canadian system For example US torts are all about compensation and not enough about fault There are 2 conceptions of tort law 1US Loss SpreadingDistributive justice notion Spread out the cost of the loss socially The problem is that it doesnt take seriously the notion that someone did something wrong and should pay for it Aristotle pointed out corrective justice ie loss spreading This shows us that the concept is ancient 2CDN Loss FixingFix the blame onto one person ie who did the wrong Common law is a collection of cases and principles found from them Judges are supposed to discover principles ie somewhat traditional So we often make legislation to deal with things Common law is different than legislation ie legislation I made when common law is inadequate Features of tort law Doing and suffering are corelative ie they only make sense in terms of each other There is a reciprocal relationship of duty and right normative Tort law is private ie in determining cases of tort law judges shouldnt look at outside policies because tort is about what happens in a specific case Note This claim seems artificial as outcomes do impact societyOnce insurance is stuck in ie collective to private tort law it takes away the principles of how tort law really should be Jurisprudence ie Judges deciding law for liability when insurance is involved often gets coloured by availability of the insurance money This is not how it should be American realists observe in court that Judges seem to know the outcome of cases from the beginning and just make it look like they are trying to discover principles However we cannot complain that they are making it up because then we can look at the legal framework PositivistBlack letter lawCase Donoghue v Stevenson Facts Thedrank some ginger beer from an opaque bottle and when she poured more out into her cup she discovered part of a decomposed snail Plaintiffs ClaimThesued the Def claiming that she suffered from a severe state of shock and gastroenteritis as a result of the nauseating sight of the snail in such circumstances and in consequence of the impurities of the ginger beer she had already consumed Defendant The manufacturer didnt even try to deny the claim but rather said argued that the claim was irrelevant and that there was no claim of action ie no tort because there was no direct relationship between theand the Def ie no duty of care was owed The Def argued that thedidnt really have a contract directly with the Def claiming that it was impossible to know the gap of timetraveldifferent hands between the manufacturer and the final consumer of the ginger beerPrior to this case without a direct contract there could be no action Ruling The Def was held liable Rationale The Court of Appeal found that before now there was a bunch of recognized relationships where duty of care exists They had to discover if there was a principle of law that existed that was similar to thisLord Atkins neighbour maxim You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour Foreseeable could we predict this injury in this circumstanceReasonable Carereasonable and prudent care ie we would all agree with this objective analysis Here the Def provided a service of making ginger beer with the hope that people would buy it and drink it They put it in an opaque bottle and sealed it knowing that it couldnt be inspected again before it arrived at its ultimate user who would drink it So it is reasonable that they should ensure that there is no poison Its very easy to see that a duty of care exists The standard of care here is that if they were going to put it in a sealed opaque bottle they should have inspected it first If we accept all of the facts which the Def did then there was an obvious breach of the standard of care Regarding the causation the claim that there was not a close enough proximity is invalid because the proximity does exist in a causal sense even if not in a distancetime sense Finally there were damages ie the shock and the gastroenteritis She sues the manufacturer there is no legal relationship between her and the manufacturer that is easily identified
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