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Chapter 3

Chapter 3 – The Law of Torts.docx

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Shelley Mc Gill

Chapter 3 – The Law of Torts TORT a wrongful act causing harm to the person or property of another Scope of Tort Law • Role of law of torts is to compensate victims for harm suffered from the activities of others while punishment is generally left to criminal law • Basic issue for society is to determine who should bear the loss • Tort law is an instrument for apportioning loss, along with such others as insurance and government compensation schemes Development of Tort Concept • In early society it was common to have strict liability, where anyone who causes direct injury to another had to pay compensation, regardless of fault • Gradually courts began to recognize indirect or consequential injuries • Evolved in two ways • Took into account the fault of the defendant • Took into account the causation, whether the defendant‟s conduct could be considered the cause of the harm Both concepts - fault and causation, are at the heart of modern tort law  Intention to harm is not the issue – FAULT is! (Tort law is all about fault) The Basis for Liability Fault • Fault refers to blameworthy or culpable (in the wrong) conduct, conduct that in the eyes of the law is unjustifiable because it intentionally or carelessly disregards the interests of others • Justification for liability on fault is in the hopes that it will act as a deterrent Strict Liability • As mentioned before, strict liability persists in some areas of modern law • People who collect potentially dangerous things on their land are liable for any resulting damage, even if they are blameless • E.g. African Lion Safari case or Dog Owner’s Liability • A person who undertakes a dangerous activity should charge for his service according to the degree of risk, and carry adequate insurance to compensate for possible harm done to others • Note that in Canadian negligence cases, standards of care increase proportionally with danger Public Policy/Social Policy • Considerations or objectives that are considered beneficial to society as a whole • The basis of liability, whether fault or strict liability, is a question of policy • Policies change with social standards which consequently force the law to adapt in many ways • The most radical proposals (from the left) would eliminate lawsuits for all personal injuries and compensate victims through a government scheme • E.g. „No fault insurance‟ which makes insurance compulsory and eliminates fault as a basis for claims • E.g. Worker’s compensation where industrial accidents are seen as inevitable and employers must contribute to a fund Vicarious Liability • Highlights an area where the law has responded to the pressure of social needs with respect to torts committed by employees in the course of their employment • Vicarious liability involves the liability of an employer to compensate for harm caused by an employee • E.g. If an employer instructs an employee to perform a dangerous task for which he knows the employee is not trained • The employer is liable even when he has given strict instructions to take proper care, or not to do the act that causes the damage • Justifications • Prevents legally harmful demands from being placed upon employees • Employees generally have limited assets available to pay compensations • Based upon fairness, the person who makes the profit should also be liable for the loss Intentional Torts • Tort are divided into two types: intentional and unintentional • Intentional torts – those where the activity or conduct is done deliberately, not by accident. -- Intention relates only to the behavior, not the resulting damage. • Unintentional torts – those where the behavior itself is accidental and not done deliberately. • *Harm or damage must occur for any tort to be actionable. Trespass • Unlawful entering, or remaining, on the land of another without permission • Oldest intentional torts Assault and battery • The present day intentional torts dealing with trespass to the person • Assault – the threat of violence to a person • Battery – unlawful physical contact with a person; the essence of a battery is the unlawful touching of a person without consent • Ex. Medical & sports contexts --A surgeon who operates on a patient without consent commits a battery --When a player exceeds the “accepted” level of contact in the specific sport, a battery has occurred Nuisance • Public Nuisance – Interference with the lawful use of public amenities • Actions against the wrongdoer may originally be brought by a government agency on behalf of the public as a whole • An individual who is able to show a special injury that is substantially greater than that suffered by other members of the general public may bring an action for compensation against the wrongdoer. • Private Nuisance – Interference with an occupier‟s use and enjoyment of her land --The court must weigh competing interests and consider two main issues: • The degree of interference with the occupier‟s use and enjoyment of the land • The economic importance of the offending activity False Imprisonment and Malicious Prosecution 
 False Imprisonment – Involve unlawfully restraining or confining another person -- Ex. A security guard at a local store yells “You, stop!” and accuses you of shoplifting when in fact you have stolen nothing, you can charge them with false imprisonment • But, someone who honestly makes a complaint to the police about a suspected crime is not liable for false imprisonment if the suspected criminal is arrested by the police as a result of the complaint. • If he did not have an honest belief that a crime had been committed he would be guilty of malicious prosecution. • Malicious prosecution: causing a person to be prosecuted for a crime without an honest belief that the crime was committed Defamation • Making an untrue statement that causes injury to the reputation of another person • Two forms – Libel (written defamation) & Slander (Spoken defamation) • Only defamation if other people hear it! –Requires publication; communication of the offending statement to someone other than the person defamed • Consists of a statement that causes unjustified injury to the private, professional or business reputation of another person • The courts will not award damages unless the plaintiff can demonstrate that the defendant has made serious allegations about her character or ability, causing real and significant injury to her reputation • One defence against a charge of defamation is that the alleged defamatory statements are true; the onus is on the defendant to prove the truth of the statements • Absolute privilege involves complete immunity from liability for defamation • Words spoken in parliamentary debate, in proceeding in law court and inquests, and before royal commissions • Aim to promote candid discussion • Qualified privilege involves immunity from liability for defamation provided a statement was made in good faith • Ex. A person may be asked to disclose information or give an opinion about another person, as in a letter of reference from a former employer or a bank manager. The person supplying the letter would be reluctant to express an honest opinion if he might later have to prove everything he had stated in a court of law. – The law gives a qualified privilege to anyone giving such information. • Journalists – The provincial Libel and Slander Acts give journalists a “fair comment” defence when they have researched and offered a reasonable opinion, honestly believing it to be true. • Responsible communication on matters of public interest (supreme court 2009)  A defence to defamation when the publication of the statement is in the public interest and was done responsibly; applies when the matter is of substantial concern to segments of the public and when inclusion of a defamatory statement is important for the fact that it was made, not its truth. Other Intentional Torts Related to Business “Economic torts” – those that are of growing importance to the business community Two main categories 1. Torts related to carrying on business such as unlawful interference with economic relations  Inducing Breach of contract --Intentionally causing one party to breach his contract with another  If A convinces B to break his contract with C, C will sue B for the breach of contract. However, C may also have a tort cause of action against A. C may have limited resources as compared to A. o Ex. employment context – If employer B hires employee that works for A, and A is given proper notice of quitting, breach of contract hasn‟t occurred unless B encourages employee to ignore notice or other obligations. But if B and A are competitors, there may be breach of contract due to confidentiality.  Unlawful Interference with Economic Relations – Attempting by threats or other unlawful means to induce one person to discontinue business relations with another  an actual breach of contract is not necessary, but the tort requires more than just an intention to interfere – Unlawful means must be used. o Ex. When A threatens B with violence if B continues to do business with C 2. Torts relates to false advertising in relations to another‟s products  Product Defamation -- Making false and damaging statements about the products of another person o Ex. A business competitor.  Passing off – representing one‟s own goods as those of another (of a competitors) o Ex. A dishonest trader might also try to cash in on an established reputation by passing off his own goods as those of a competitor. – By using similar label or form of packaging Unintentional Torts Negligence (flexible tort)  By far, negligence is the most common basis for legal actions in court  Concept is quite simple, negligence involves anyone who carelessly cause injury to another should compensate the victim for that injury Elements of a Negligence actions /Elements of proof  Defendant owed plaintiff a duty of care (Value Judgment)  Defendant breached the required standard of care (Policy and fact)  Defendant‟s conduct caused injury or damage to the plaintiff (What s causal) *Note: All three requirements must be established Duty of Care  Duty focuses on the relationship between the parties  Principle question of duty of care is whether the defendant should have foreseen that his actions might do harm to this victim  One cannot be expected to anticipate all possible consequences but “would a normally intelligent and alert person have foreseen that this conduct would have likely caused harm?”  Ex. Hunt vs. Sutton -- Christmas party with open bar ends with a paraplegic after a drunken employee refused a ride home -- Woman drank a lot at the party, then went to the hotel bar after that -- Hunt charged her employer with negligence because they knew she was drunk but didn‟t do enough to stop her  Ex. Childs v. Desormeaux -- Social host liability – Accident caused by guest driving his car after leaving party intoxicated – whether social owes a duty of care to third parties who may be injured by intoxicated guest -- After leaving a party held in a private home, D, who was then impaired, drove his vehicle into oncoming traffic and collided head‑ on with another vehicle. One of the passengers in the other vehicle was killed and three others seriously injured, including C. C brought an action against the hosts of the party for the injuries she suffered. Both the trial judge and the Court of Appeal concluded, for different reasons, that social hosts of parties do not owe a duty of care to members of the public who may be injured by an intoxicated guest‟s conduct. -- The injury to C was not reasonably foreseeable on the facts established in this case. There was no finding by the trial judge that the hosts knew, or ought to have known that D, who was leaving the party driving, was impaired.  Plaintiff must go further and establish that the defendant owed a duty of care o Duty will arise only where the defendant could reasonably have foreseen a risk of harm to that plaintiff or someone in the plaintiff‟s position o Ex. Courier company was not held liable for delivering an article of mail too late for a private sale to be completed as it could not reasonably foresee the delay would cause a loss to some third party outside its relation with the client (not allowed to read the mail!)  Courts have sometimes held that duty of care is owed to persons other than the individual who is directly injured o Ex. Court held driver liable when a mother died by emotional trauma of seeing son hit by the driver because that type of injury was foreseeable  Court will consider any statutes with respect to the matter Standard of Care  The level of care that a person must take in the circumstances  Law places a general duty on every person to take reasonable care to avoid causing foreseeable injury to other persons and their property  Standard of care varies according to the activity in question such as a brain surgeon vs. person on the subway  Court must balance competing interests; o Degree of likelihood that harm will result from the activity as well as the potential severity o Social utility of the activity and the feasibility of eliminating the risk i.e. Where there is danger of a major catastrophe it would be unreasonable not to take every known precaution  Increasingly, legislation not only imposes duties, but also sets out appropriate standard of care (regulations) for particular activities o E.g. Motor Vehicle Owner‟s Act Causation of damage  Must prove that the injury to the plaintiff is caused by the breach of standard of care  Courts use a narrower test for legal causation: o “But for” – the basis test;
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