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Law Midterm Notes.docx

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Wilfrid Laurier University
Valerie Irie

Law Midterm Notes Chapter 3 – The Law of Torts Purpose of Tort Law:  To compensate victims for harm caused by the activities of other Strict Liability: liability that is imposed based upon causation regardless of fault  Whether intentional or unintentional Basis for Liability Fault: unjustifiable injurious conduct that intentionally or carelessly disregards the interests of others.  Deterrent effect: people will be more inclined to be careful if they must pay for the consequences of their carelessness  Also has faults; accident victims who cannot establish fault on the part of some other person go uncompensated, and the costs and delays of litigation deter many other claims Strict Liability  Only exist in a few areas of modern tort law  Ex: person who collects dangerous substances, they escape, and results in damage Public Policy: considerations or objectives that are considered beneficial to society as a whole  Force the law to adapt in many ways  No fault insurance: a system of compulsory insurance that eliminates fault as a basis for claim  Workers compensation: a scheme in which employers contribute to a fund used to compensate workers injured in industrial accidents regardless of how the accident was caused Vicarious Liability: the liability of an employer to compensate for torts committed by an employee during the course of his or her employment  Two reasons why for this public policy o 1. Employees can often not cover the cost of damages by themselves (limited assets to pay for compensation) o 2. It is only fair that the person who is making profit from an activity be liable for any loss Intentional Torts  Torts are divided into two types o Unintentional o Intentional  Unintentional torts are those where it is considered an accident and not deliberate  Trespassing: o One of the oldest intentional torts o Entering upon another person’s land without permission Assault and Battery  Assault: the threat of violence to a person  Battery: unlawful physical contact with a person  Battery cases are common in medical and sport contexts  Ex: surgeon who operates on patient without consent is battery  Ex: when a player exceeds the accepted level of contact in a specific sport Nuisance  Two nuisance torts: o Public nuisances: interference with the lawful use of public amenities  Ex: blocking public roads, interfering with public amenities such as parks etc.  Actions may be brought on by public as whole or government agencies  Individuals can also bring up this charge o Private nuisances: interference with an occupier’s use and enjoyment of their land  Ex: excessive noise, contaminating liquids,  Occupier also covers tenants  Courts must weigh two issues:  1. Degree of interference with occupier’s use and enjoyment of land  2. Economic important of the offending activity False Imprisonment and Malicious Prosecution  False imprisonment: unlawfully restraining or confining another person  False arrest: causing a person to be arrested without reasonable cause o Both are popular in the shoplifting industry o Does not have to be physical restraint  Could be something such as “Stop Thief!”  Accusing them of being guilty in a public place without enough evidence  Malicious Prosecution: causing a person to be prosecuted for a crime without an honest belief that the crime was committed. o Much safer to report suspicious activities to the police and let them decide if a person is guilty or not Defamation  Defamation: Making an untrue statement that causes injury to the reputation of another  Two forms of defamation: o Libel: written defamation o Slander: spoken defamation  Courts will not award damaged unless plaintiff can seriously prove that they were caused harm  Defamation requires publication – mentioning to a third party  A defense against defamation is that the alleged defamatory is true  Absolute privilege: complete immunity from liability for defamation o Aim is to promote candid discussion o Even intentional and malicious falsehoods uttered in Parliament are immune from actions in the courts  Qualified privilege: immunity from liability for defamation provided a statement was made in good faith o Ex: person may be asked for opinion – he honestly believes in his opinion about this person – not liable for defamation  Responsible Communication on Matters of Public Interest: a defense to defamation when the publication of the statement is in the public interest and was done responsibly o When statement is important for the fact that was made, not its truth Other Intentional Torts Related to Business  Also known as “economic torts”  Two main categories:  First: o Inducing breach of contract: intentionally causing one party to breach his contract with another o Unlawful interference with economic relations: attempting by threats or other unlawful means to induce one person to discontinue business relations with another  If A threatens B for doing business C  Second: o Relates to false advertising in relation to another’s product o Product Defamation: making false and damaging statements about the products of another person o Passing off: representing one’s own goods as those of another  Using similar label for product Unintentional Torts  Behavior not done deliberately or on purpose Negligence  Negligence: the careless causing of injury to the person or property of another Elements of Proof: 1. The defendant owed the plaintiff a duty of care 2. The defendant breached the required standards of care 3. The defendant’s conduct caused injury or damage to the plaintiff  1. Duty of Care o Duty of care: a relationship so close that one must take reasonable steps to avoid causing harm to another o Should the defendant have been able to foresee the actions coming o “Would a normal intelligent alert person been able to foresee that actions would have caused harm?” o Courts have sometimes held that a duty of care is owed to a persons other than the individual who is directly injured  Ex: negligent driver held liable for the shock a mother suffered when he ran down her son  2. Standard of Care o Standard of Care: the level of care that a person must take in the circumstances o “reasonable person test” o Standard of a brain surgeon is not the same as a construction worker  3. Causation of Damage o Causation: injury resulting from the breach of the standard of care o Courts use a narrower test for legal causation, choosing between the “but for” and “material contribution test” o “But for” test: plaintiff must show that “but for” the negligent conduct of the defendant, the injury would not have occurred  Ex: passenger in boat falls overboard in ice cold water and dies. Boat operator had the duty of care to rescue him. Negligent in attempt to rescue – but not liable for the passenger would have died before he would have been able to rescue him o “Material Contribution Test”: finds causation when the type of injury is that for which the behavior of the defendant created an unreasonable risk and it would offend notions of fairness to deny recovery  two shooters shoot at victim but unable to find out which bullet harmed the victim – allows liability to be assigned to both shooters o Remoteness of Damage:  Person will not be held liable for actions that are found too remote or unrelated  Remote: unrelated or far removed from the conduct o “Reasonable foreseeability test”: one which would occur to the mind of a reasonable man in the position of the defendant … which he would not brush aside as far fetched”  Not based on the actual circumstances of the particular defendant o Thin Skull Doctrine  Allows the injured plaintiff to recover all of his damages even though they may be much greater than an ordinary plaintiff would have suffered Defenses to Negligence: The Plaintiff’s Own Conduct  Contributory Negligence: a partial defense to a negligence action when the plaintiff’s conduct also contributed to the injury – the loss will be apportioned according to the degree of fault  Mitigate: duty to act reasonably and quickly to minimize the extent of damage suffered  Voluntary Assumption of Risk: a defense to a negligence action when the plaintiff was aware of the risk and continued with the activity anyway  Subrogation: where one person becomes entitled to the rights and claims of another Product Liability  Product liability: a tort imposing liability on manufactures for harm caused by defective products  Circumstantial evidence principle: o A prima facie case of negligence may be established by drawing reasonable interferences from the circumstances surrounding the product manufacture and failure  Must prove that the standard of care was not met  Defense must prove that they did meet the standard of care Burden of Proof  Res ipsa loquitur: the facts speak for themselves o Same thing as circumstantial evidence principle Inherently Dangerous Products  Duty to warn: manufacturer’s responsibility to make users aware of the risks associated with the use or misuse of the product o Ex: must prove that product would not have been used if the individual had been aware of warnings Occupier’s Liability  Occupier’s liability: a tort imposing liability on occupants of land for harm suffered by visitors of property  Invitee: a person permitted by an occupier to enter premises for business purposes  Licensee: a visitor (other than an invitee) who enters premises with the consent of the occupier o Owe them a standard of care – of everything you are aware of  Trespasser: a person who enters premises without the permission of the occupiers o Duty is still owed but the level of care is different o Occupier must not set out deliberate harm o Owed duty of “common humanity” Remedies  Damages: a sum of money awarded as compensation for loss or injury o Physical and economic loss  Physical – losses are costs of repairing damages property or treating injured people  Economic – losses in monetary value  Punitive or Exemplary Damages: damages awarded with the intention of punishing a wrongdoer o Awarded in RARE cases – deliberate libel or malicious false imprisonment  Tort damages are often classified in two categories: o Special Damages: damages to compensate for quantifiable injuries  Ex: medical bills, cost of repairing a car, actual lost wages, etc. o General Damages: damages to compensate for injuries that cannot be expressed in monetary terms  More speculative Ex: loss earnings from disability, pain and suffering from losing one’s arm, etc.  Rare remedies: o Restitution: an order to restore property wrongfully taken o Injunction: an order restraining a person from doing, or continuing to do, a particular act  May restrain defendant from committing a nuisance or from trespassing on the plaintiff’s land o Mandatory injunction: an order requiring a person to do a particular act  Ex: removing a fence from blocking plaintiff’s right of way to their property Chapter 4 – Professional Liability: The Legal Challenges Liability of Professionals  Liability may arise from 3 relationships, generating 3 causes of actions: o Contractual relationship leads to breach of contract cause of action o The fiduciary relationship leads to breach of fiduciary duty o The duty of care owed in tort leads to a tort cause of action Contractual Obligations  An agreement to provide professional services Fiduciary Duty  Fiduciary Duty: a duty imposed on a person who stands in a special relation of trust to another  3 characteristics: o The fiduciary (often professional) has scope for the exercise of some discretion or power o The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests o The beneficiary (client) is particularly vulnerable to or is at the mercy of the fiduciary holding the discretion or power  Some professionals are inherently fiduciary o Doctor patient o Lawyer client  Act in best interest of the client  A fiduciary should not place themselves in a conflict of interest o Conflict of interest: a situation where a duty is owed to a client whose interests conflict with the interests of the professional, another client, or another person to whom a duty is owned Tort Liability  When a professional deliberately or carelessly causes damage to a client – a tort has occurred  Third-party liability: liability to some other person who stands outside a contractual relationship o Ex: Doctor A gives professional opinion to Doctor B about Doctor B’s patient o Common for real estate agents and insurance agents Choosing a Cause of Action  A court can charge for 2 things (ex: tort and contract) – but no more than 2 or a choice is given between them  Duty of account: the duty of a person who commits a breach of trust to hand over any profits derived from the breach o In the case of breaching fiduciary duty Tort Liability for Inaccurate Statements Misrepresentation  If a person makes an untrue statement, knowing it be untrue o Misrepresentation is fraudulent and amounts of the intentional tort of deceit o De
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