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MCS 3040 (228)
Chapter 10

Chapter 10

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Marketing and Consumer Studies
MCS 3040
Joseph Radocchia

Chapter 10: Introduction to Tort Law Midterm Notes Defining Tort Law • Tort: Aharm caused by one person to another, other than through breach of contract, and for which the law provides a remedy • In other terms: ◦ Injuries suffered by a party as a result of the wrongful conduct of others. It may encompass damages personal injury suffered, for example, in a motor vehicle accident or as a result of falling in dangerous premises. It can cover damages occasioned to property. It may include compensation for injury caused to the reputation of a business or a product. It may provide damages for injury to honor in cases of defamation and libel.Aprimary object of the law of tort is to provide compensation to persons who are injuries as a result of the actions of others • Trespass to Land: Wrongful interference with someone's possession of land • Deceit or Fraud: Afalse representation intentionally or recklessly made by one person to another that causes damage • Negligence: Unreasonable conduct, including a careless act or omission, that causes harm to another ◦ Example: When a taxi driver is injured due to an unsafe lane change by another, he is the victim of the tort negligence. The driver causing the injury is responsible for the tort of negligence because she has made the unsafe lane change and failed to show the care and attention that the circumstance required • One of the key objectives of tort law is to distinguish between a situation in which the loss suffered by an injured individual should remain uncompensated and one in which responsibility for the loss should be “shifted” to another party considered responsible for causing the loss, known as the tort- feasor • Tort-Feasor: Person who commits a tort • Tort law seeks to impose liability based on fault • Read Example on 230 • READ CASE on page 231 How Torts Are Categorized • Torts can generally be categorized as falling into two main groups: ◦ Torts committed intentionally and torts committed through negligence • Intentional Torts: Aharmful act that is committed on purpose • Assault: The threat of imminent physical harm without there being any actual physical contact • Battery: Intentional infliction of harmful or offensive physical contact • When someone is negligence, she is liable for damages even though she did not intentionally cause the event in question Tort Law and Criminal Law • Section 268 (1): Everyone commits an offense of aggravated aggravated assault who wounds, maims, disfigures or endangers the life of the complainant ◦ In other words, a person who commits aggravated assault “is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years” Purpose of theActions • The purpose of a criminal prosecution is to censure behaviour and secure the punishment of a fine, imprisonment or both • The Parliament of Canada has determined that anyone who violates the criminal code should be punished and deterred from such conduct in the future • Prosecution is considered to be critical to maintaining a rights- respecting society • In tort law, however, the objective is to compensate the victim for the harm suffered due to the culpability of another • It enforces the victim's private right to extract compensation from the party who has caused the loss Commencing theActions • In criminal law, the legal action is called a prosecution and is brought most often by Crown Prosecutors employed by the federal or provincial government • Rarely do the injured parties bring the prosecution, though it is technically possible for them to do so • In tort law, the injured party brings the legal action • Look at pg 233, for example Proving theActions • To secure a conviction under Section 268 (1) of the Criminal Code, the Crown must prove that force was applied, that it was intentional, and that the actions were so serious as to “wound, maim, disfigure or endanger” • The Crown has the burden of proof in a criminal action ◦ Meaning, the prosecutor must prove all the elements of the offence beyond a reasonable doubt based on “reason and common sense” not on “sympathy or prejudice” ◦ Guilt must be a logical deduction from the evidence, and it is not sufficient that the jury or judge believed the accused “probably” committed the act • In tort law, the injured party (plaintiff), must prove that the defendant is responsible for the assault and batter on the balance of probabilities • The plaintiff must convince the judge that there is a better than 50% chance that he was harmed by the defendant • Odds are high that the plaintiff will succeed in tort if the defendant has already been convicted under criminal law Differences Between Civil and CriminalActions Type of Action Commencing the Proving theAction Outcome Action Assault and battery as Sam files a claim Sam must prove his case Acourt orders Mike to torts against Mike based on on the balance of pay Same compensation the torts of assault and probabilities for his injuries battery Aggravated assault as a The Crown prosecutes The Crown must prove Acourt orders Mike to crime Mike based on section its case beyond a be fined, imprisoned or 268 (1) of the Criminal reasonable doubt both Code Liability in Tort Primary and Vicarious Liability • There are two kinds of liability in tort law: ◦ Primary ◦ Vicarious • Primary Liability arises due to one's own personal wrongdoing • Vicarious Liability: The liability that an employer has for the tortious acts of an employee committed in the ordinary course or scope of employment • An employee's wrongful conduct is within the ordinary course or scope of employment if it is ◦ Authorized by the employer ◦ Is an unauthorized mode of doing something that is, in fact, authorized by the employer • The Supreme Court of Canada states in Blackwater v.Plint ◦ Vicarious liability may be imposed where there is a significant connection between the conduct authorized by the employer … and the wrong. Having created or enhanced the risk of ponsible; even though the wrongful act may be contrary to its desires … the fact that wrongful acts may occur is a cost of business • The court must decide whether there is a “significant connection” between the conduct authorized by the employer and the wrong committed by the employee to justify making the employer vicariously liable ◦ Example: If Mike assaulted a friend whom he had invited to the Bar-Fly – after hours and without his employer's permission – the doctrine of vicarious liability is unlikely to have any application. Though it may seem unfair to make an employer been justified on the following basis: ▪ Employers have the ability to control employees and therefore should be liable for the employee's conduct ▪ The person who benefits from a business enterprise (the employer) should bear the associated costs ▪ Innocent plaintiffs have a better chance of being compensated ▪ The employer should be given an incentive to try to prevent torts from occurring in the first place • Read case on pg 236 Liability and Joint Tort- Feasors • When a person is injured due to the tortious conduct of more than one person, those culpable are known as joint tort-feasors • Joint Tort-Feasors: Two or more persons whom a court has held to be jointly responsible for the plaintiffs loss or injuries ◦ Example: If Sam were attacked by Mike and another employee, Mike and his coworker would have joint liability for Sam's injuries • Legislation passed across Canada states that if the negligence of more than one person is responsible for the loss, the victim or plaintiff can sue any or all of them, with recovery apportioned b
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