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BU231 Study Guide - Final Guide: Fiduciary, Uberrima Fides, Non Est Factum

Course Code
Valerie Irie
Study Guide

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BU 231 Class Notes
Action- the lawsuit
Cause of Action- type of lawsuit (tort)
Plaintiff/ defendant parties to the action
Claim- the reason for the lawsuit
Damages- $$$
Prima Facie- on the face of it
Tort Law
The object of tort law is to place the injured party back in the position he/she
would’ve been, had the tortuous act not occurred
o Harm is a required element of any tort. The wrongful act must cause the
o Our tort system today is fault based (some torts don’t require an element of
o When choosing a writ you need to make sure you find the one that best suits
your case because you may win a case under one writ but not another that
may even be closely related
Strict liability- some torts are still considered to be strict liability and therefore no
fault element is required. (public nuisance)
Intentional Torts
o Public or Private
o Interference with the lawful use of public land or private land
o Need to prove Intent
o Entering someone else’s land without consent
o Harm must be caused
o Need to prove intent
Assault and Battery:
o Assault- Threat of violence to a person
o Battery- Unlawful touching of a person (without consent)
o You can have one without the other but they are usually together
Intentional infliction of Mental Distress:
o Intent to cause harm
o Recognizable physical or psychopathological harm must occur (person can’t just
claim they are distressed)
o Shows harm does not need to be physical
False Imprisonment
o Unlawfully restraining or confining another person
o Does not need to be physical (“manager shouts stop thief to innocent person”)
Malicious Prosecution

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BU 231 Class Notes
o Reporting person to the police when there is no good reason to believe that
person committed a crime
o This is the next step to false imprisonment
o Making an untrue statement that causes injury to the reputation of another
o Slander- spoken, libel- written
o The elements are: intent (maliciousness), statement made, statement false,
published to 3rd party, must cause genuine and significant injury to the
reputation of the plaintiff
o Defenses: Statement was true or qualified privilege: statement made in good
faith and with honest belief in its truthfulness
Defenses to Intentional Torts
o Injured party consented to the act that caused the harm, there is no tort
o Absolute defense but must be genuine and informed consent
o The party asserting the defense needs to show that the self defense was
necessary and that no excessive force was used (pull a gun on someone who
punches you)
o Force for force
o Absolute defense
o Defense to Trespass where the right of way was impassable
o No other option but to destroy property (tear down building to stop spread of
o Act must be voluntary
o I.e. Getting away with trespassing because someone else forced you onto the
o Requirement of mental capacity to inform intent if absent forms a complete
Tort Law Negligence
Negligence is the careless causing of harm to the person or property of another
o Takes up the majority of tort law because most of the time people don’t
intentionally harm people
3 Part test for Negligence:

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BU 231 Class Notes
1) The defendant owed the plaintiff a duty of care
2) The defendant breached that duty of care by falling below the standard of
care and
3) The defendant’s actions caused the injury
Duty of Care(DOC)
o Take reasonable care to avoid injury to others (must be foreseeable)
o Everyone has the duty to not injure their neighbour (good neighbour principle)
o Your neighbour is: Wherever you are you must be careful of those around you
o Test for DOC: 1) is there a close enough relationship that the act should have
been foreseeable 2) are there any considerations which ought to negative or
limit (scope, class of people it is owed, damages to which a breach of it may give
Standard of Care
o The reasonable and competent ordinary person on the young street subway
(lowest level of care)
o The professional standard of care
o The fiduciary
o Children (will be considered adults when engaging in adult activities driving
o ‘but for’ test
o Remoteness element of forseeability need to be present at the time of the tort
o Things directly related- not a string of bad events
Vicarious liability
o Employers can be held liable for the tortuous actions of their employees
when the employee is acting in the course of his/her employment. (Employee
still liable)
Burden of Proof
o Plaintiff has the onus of demonstrating that the elements of a tort exist
o The onus then shifts to the defendant to prove valid reason why they didn’t and
use a valid defense
o Plaintiff can use Res Ipsa Loquitur the thing speaks for itself, when there is no
other obvious explanation for the harm caused (barrel of flour example)
defendant would need to prove why it was not possible for them to do it.
Contributory negligence:
o The plaintiff in some way acted negligently and contributed to their own harm
o Only a partial defense
Can occur in 3 ways
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