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Chapter 3

BU231 Textbook Notes Chapter 3.docx

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Shelley Mc Gill

Chapter 3  Tort = a wrongful act causing harm to the person or property of another o Purpose: to compensate victims for harm caused by the activities of others o Identifies a set of circumstances that creates a right to claim compensation  At first, courts only recognized direct injuries  not the ones that were indirectly caused  Fault o Unjustifiable conduct that intentionally or carelessly disregards the interests of others o Therefore, people will be more careful if they must pay for the consequences of their carelessness o But the compensation system also has faults  Victims who cannot establish fault go uncompensated  Those who can establish fault of a large corporation tend to be over compensated o In most areas of tort law, liability is imposed on a fault basis  Strict liability o liability that is imposed based upon causation regardless of fault o some activities are dangerous no matter the amount of care taken  ex. Transporting high explosives  therefore, strictly liable for damages regardless of fault o they can charge for their services according to the degree of risk and carry adequate insurance to compensate the possible harm  Public policy o Considerations or objectives that are considered beneficial to society as a whole o Changes as our social standards change  No-fault insurance o A system of compulsory insurance that eliminates fault as a basis of claims o Ex. Car accident claims  Workers’ compensation o 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 o An employer will normally be held liable when at fault for an act committed by an employee o Reasons  The employee usually doesn’t have enough assets to compensate  It seems only fair to have the person who is making a profit from the activity to be liable for any losses Intentional torts  Intention relates only to the behaviour, not the resulting damage  Trespass o Unlawful entering or remaining on the land of another without permission o However, cannot sue unless there is a loss  ie. damaged garden, fence etc  Assault and battery o Assault = the threat of violence to a person o Battery = unlawful physical contract with a person o May also be a criminal offence o Ex. A surgeon who operates on a patient without consent = battery  Nuisance o Public nuisance = interference with the lawful use of public amenities  Ex. Blocking public roads, interfering the use of public amenities such as parks o Private nuisance = interference with an occupiers use and enjoyment of their land  Ex. Excessive noise, noxious fumes, contaminated liquids poured into rivers/ soil  But there isn’t absolute freedom  Court must consider the degree of interference and the economic importance of the offending activity  There are govt regulations to try and control the annoyances  False imprisonment and malicious prosecution o False imprisonment = intentionally restraining a person, without lawful justification, either by confinement or by preventing him from leaving the place  Significant important to shoplifting  Does not have to be physical restraint  “stop, thief”  There is a risk in confronting a member of the public without strong evidence that a crime has actually been committed  False arrest = causing a person to be arrested without reasonable cause o Malicious prosecution = causing a person to be prosecuted for a crime without an honest belief that the crime was committed  Defamation o Making an untrue statement that causes injury to the reputation of another person o Courts will not award damages unless the plaintiff can demonstrate that the defendant has made serious allegations about their character or ability, causing significant injury to their reputation o Requires publication  communication of the offending statement to a third party o Libel = written o Slander = spoken o One defence = the alleged statement was true  defendant must prove this o Absolute privilege = complete immunity from the liability of defamation  Words spoken in parliament debates, in law courts and before the royal commissions o Qualified privilege = immunity from liability from defamation provided that the statement was made in good faith  But once they find out it is wrong, they have to correct themselves  Responsible communication on matters of public interest = a defence when the publication of a defamation statement is in the public interest and was done responsibly  Induced breach of contract o Intentionally causing one party to breach his contract with another  Unfaithful interference with economic relations o Attempting, by threats or other unlawful means, to induce one person to discontinue business relations with another o Actual breach of contract is not necessary but there must be unlawful means used  Product defamation o Making false and damaging statements about the products of another person o Passing off = representing one’s goods as those of another Unintentional torts  Negligence o The careless causing of injury to the person or property of another o Elements of proof = 3 requirements  The defendant owes the plaintiff a duty of care  Should the defendant have been aware of the risk of harm to this victim?  Duty of care = a relationship so close that one must take reasonable steps to avoid causing harm to the other  Plaintiff must establish that the defendant owed a duty of care to her  Generally, a duty only arises where the defendant could reasonably have foreseen a risk of harm to the plaintiff or to something in the plaintiffs position  Sometimes, the duty is owed to someone other than the individual who is directly injured o Ie. the shock a parent feels when they witness their child being run over by a car  The defendan
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