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Chapter 3

Chapter 3 - Intro to torts


Department
Law and Business
Course Code
LAW 122
Professor
Theresa Miedema
Chapter
3

Page:
of 5
Chapter 3 Introduction to torts
INTRODUCTION TO TORT LAW
Tort : Generally consists of a failure to fulfill a prime obligation that was imposed by the
law
Torts and crimes
oTortfearsor: the person who has committed the crime
Tort Law and Criminal Law
Parties involved in
obligation
Parties to the action
if that obligation is
broken
Remedy
Tort LawPrivate
law
The defendant owes an
obligation to the plaintiff
The plaintiff sues the
defendant
Compensatory
damages
Criminal
Law
Public
Law
The accused owes an
obligation to society
The government
prosecutes the accused
Punishment (such as a
fine or imprisonment)
oThe two concepts arise from the same factors:
Tort the idea of allowing a victim to demand compensation from a wrongdoer
developed into the system of private tort law
Crime the idea of allowing the community to punish a wrongdoer developed
into the public system of criminal law
Torts and contracts
Comparing Tort and Contract
Source of
obligation
PrivityCompensator
y Damages
Risk management
TortImposed by
law
Enforceable
regardless of any
agreement between
the parties
Place the
plaintiff as if
the tort did not
occur
May take a person by surprise; may
require more than a person is able to
give
Contra
ct
Volntarily
created by
Enforceable only by
or against a party to
Place the
plaintiff as if
Always possible to know the
obligations in advance; always
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the partiesthe contractcontract
performed
possible to limit the obligation to
promises that can be fulfilled
Types of torts
*forms of tortuous wrongdoing, page 64**
otorts require balance of competing interests
protecting free choice vs deterring harmful behaviour
encouraging innovation vs compensating losses
physical harm vs economic loss
otorts differ on basis of mental culpability
strict liability: when a person does something wrong without intending to do
so and without acting carelessly
no requirement of proof of any sort of intentional or careless wrongdoing.
the defendant is responsible for the situation that injured the plaintiff
limited to situations in which the defendant is involved in some
extraordinarily dangerous activity
intentional tort: when a person intentionally acts in a certain way
negligence : when a person acts carelessly
GENERAL PRINCIPLES OF TORT LAW
Liability insurance : a contract in which an insurance company agrees, to pay
damages on behalf of a person who incurs liability
oDuty to defend: requires the insurance company to pay the expenses associated with
lawsuits brought against the insured party
oPositives and negatives
(+) Contributes to the compensatory factor: aims to fully compensate people
who are wrongfully injured
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If a tortfeasor cannot personally afford to pay damages, the plaintiff will
not receive full compensation unless the defendant is insured.
(-) Undermines tort laws deterrence function: discourages people from
committing torts by threatening to hold them liable for the losses that they
cause.
Vicarious liability : when an employer is held liable for a tort that was committed by
an employee
enhances compensatory function
may enhance deterrence function
fairness: business bears cost of operation
oAn employer is not liable every time an employee does something wrong
oAn employer will not be held vicariously liable for employees, but not for independent
contractors.
Independent contractor: is a worker who is not as closely connected to the
employers business as an employee
(1) the employer generally does not control what, how, when and where it is
done
(2) the worker uses their own equipment and premises (and not the
businesses)
(3) the worker is paid a lump sum at the end of each project rather than a
regular wage or salary
(4) the worker is not integrated into the employers business but in their
own business
oVicarious liability does not relieve the employee of responsibility
oAn employer may be both vicariously liable and personally liable in the same
situation
Vicariously liable when the employer is responsible for an employees tort
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