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Philosophy of Law Notes – Tort Law.docx

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Philosophy 2080
James Hildebrand

CasesEssay Readings Philosophy of Law NotesTort Law General Introduction Law Entire body of stateenforced or legal rules state has power Acquiesce the use of forcedelegate enforcement of laws to persons empowered by the state Democracyvoting as to who has authoritywhat authority they have Common LawJudgemade lawset of principles that judges over time have developed collectivelybased on decisions of particular cases of the past Entails the body of legal principles that have evolved in the English common law system over 700 years People expect a reason for decision over a caseoFirst hurdle of seeing a decision as principled or with having a rational basis oReason should be rational Not Arbitrary oDont want a judge to decide a case based on amicabilitytreat everyone fair and equal As body of principles central location of all decisions judges have made became establishedcourts developed a system of case precedent or stare decisisdecision stands oWhen a judge decides a case where facts are similar to a case that has already been decidedjudge must decide in the same way oBinding on later judgemust follow that decision Binding Part Ratio Decedendi Only part of the decision that is binding is the reason for that decision Example of Legal Principle When a person is attackedhas reason to believe that he is in danger he is allowed to take whatever steps are reasonably necessary to repel the attackif steps are reasonable then regardless of extent of injury to the attackervictim cannot be held responsible Not Binding Part Obiter DictaEverything else in the decision that is not bindingthings saidby the wayNot easy to distinguish between ratio decedendi and obiter dictatakes years for later courts to decide what the ratio isRecorded binding decisions form the basis of the body of common law In Canadacommon law continued to 1949but even though decisions are not binding now they still provide persuasive arguments that courts rely on Common law jurisdictions presently USA UK AustraliaNew Zealand Not statute lawoStatutes are written laws that are enacted by elected legislative oOnly government legislators have the power to enact laws oDuty of courts is to interpret and apply common law and to interpret and apply statute law oCourts interpretation on statute will be binding on future casescourts decision as to how a statute is to be interpreted and applied also forms part of common law Decisions only binds courts below First place where a court makes a decision is trial courtOntario Superior Court of JusticeoCourt of original jurisdiction oJudge or jury triers of facts hears evidence decides factsapplies law Appeals Case precedent or stare decisis is solely reliant on appeal decisions Appeal oWhen a party to a suit disagrees with the decision of the courtcan find a mistake in law in that decision to support an appealCourts of AppealsCan only appeal on a point of lawappeal courts do not hear evidence of witnesses triers of factare in the best position to make decisions on credibility of evidencewitnesses Next level above Ontario Court of Appeals is the Supreme Court of CanadaoBind trial courts of every provinceappeal courts of every province Courts of appeals are madeo5 judges in provincial courts of appeal many judges but max 5casemin 3case o9 judges in Supreme court of Canada only 9 and will sit on every case Generally follow past decisions but are not bound to do sooccasionally reverse themselves oReversal does not affect previous cases Majority oDecision of the court determines the outcome of the case oMust be the opinion of majority of the judges sitting on the appeal oRatio of the majority decision is binding on lower courts Concurring oSometimes judges agree or concur with the result but add their own reasons because they feel they have some important reasons oHelp shape law in later cases DissentoJudges sometimes disagree with the reasonsoutcome of the majority decision oDoes not determine outcome of the case oImportance Process of reasoningreasoning should be as accessible as possibledebate is robust Philosophy of law is understanding the debate that produces the law Public Law Body of law where we say the state has interest Ex Criminal law oCrime is an act that is considered an offence against the state as well as the victim oState will prosecute accused person even if victim does not bring the case forward State pays for investigationprosecution Private Law Body of laws that deals typically with resolving disputes between private individuals In Canadaprivate law suit means the person injured must put the case forward or bring the action Private action is funded by parties to disputethe litigants Person in private law suit or action must have personal stake in the suit in order to be involved oEx you cant sue your neighbors contractor for injury to the neighbor Concurrent Liability person can be charged criminally and still be sued civilly Ex OJ Simpson CaseoFound not guilty in criminal law State has onus of proofstandard of proof required to convict the accused beyond a reasonable doubt oFound civilly liable for wrongful cause of death Plaintiff person doing the suing has onus of proofstandard of proof required to win case based on balance of probabilities if it is 51 likely that Simpson caused the deathplaintiff would win oIf OJ was convicted in criminal proceedinghe would not be able to defend civil action by saying he commit the act If convicted criminallyit constitutes the crimethe tort of wrongful death Cannot challenge conviction resulting from criminal case in collateral proceeding Tort LawPrivate law of actionable wrongs Actionable oSomething recognized at law as something you can sue for oActionlaw suit either civil action or private Person injured may have cause of action Title of case is called style of cause oTells public who the parties to the dispute areif its a public or private caseProvides compensation to the plaintiff at the cost of the defendant In order to find liabilitythere must be some wrongdoing Only finds liability where there is faultfault means wrong or blameworthy conductThere also must be intension to do the thing that is wrong Intentional TortsWhere tort law started Trespass intentionally entering on the lands of another without permission Libel or slander saying something to someone other than the plaintiff that if believed would harm the plaintiffs reputation Unlawful confinement confining someone without lawful excuse or justification Assault threat of violence different from criminal assault which is battery in tort law Battery intentional application of force on the person of another without their consent criminal law calls this assault Conversion intentional taking of property of another without their consent criminal law calls this theft Actionable Per Se Rule intentional law are actionable per se Actionable conduct recognized by law as something that you can sue for Per Se in itself or intrinsicallyplaintiff does not have to show actual harm or injury in order to succeed in law suit action oEx person could slander another personeven if no one believed itplaintiff could still win oIf actual harm did occurform part of the case but is not required Law recognizes the conduct of intentional torts as inherently wrong whether harm did actually occur Unintentional Torts Tort law requires fault in order to impose liability Ex Borrowing a lawnmower from neighbor oIf something happened to it while it was in your possession and it was brokenyou did nothing wronglaw does not require you to pay for damage oWrong requires fault or blameworthy conduct to be called wrongno faultno liability oIf the description of intentional torts is accuratethen how can law impose liability Even though conduct is unintentionallaw can declare it a wrongcan be sufficient to be a tort Fault or wrongfulness of the conduct in question is based not on what the defendant knew about what he was doing but what he should have known oEven if the defendant could say he didnt mean to hurt anyone or didnt know his actions could cause harmlaw says that he should have known that his actions could cause injury Fault is based on the notion that the defendant lacked the intention to act in such a way that he would avoid injurylacked the intention to be careful
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