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Chapter 3

1. Chapter 3 – The Law of Torts.pdf

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Valerie Irie

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BU231 Lecture 1-2 Wednesday, May 8-15, 2013 Chapter 3 – The Law of Torts  Tort: a wrongful act causing harm to the person or property of another  Purpose of tort law is to compensate(not punish) victims for harm caused by the activities of others  place injured party back in the position he would’ve been had the tortious act not occurred  determines in which circumstances the person who causes an injury must compensate the victim  one way of apportioning loss, just like insurance and government compensation schemes  early tort law evolved in 2 ways, by taking into account the: 1) fault: the law used to compensate for anyone regardless of fault, but now, that’s different 2) causation  whether the defendants conduct could be considered the cause of the harm **Civil Law Language**  Cause of Action: legal basis for why the defendant did something wrong (ex: breach of contract)  Pleadings: documents that parties file that set out what the case is about o Statement of claim = plaintiff  party that started the lawsuit o Statement of defense = defendant  party being sued  Dissent: appeal cases only  different judges seeing a case differently. Decisions are made but don’t become the law  Binding: decisions of higher courts that are binding to lower courts  not binding across provinces. Lower court judges fairly authoritative, which puts a lot of weight on decisions in higher courts  Different standards of proof required between tort law and criminal law o Tort = balance of probabilities, while Criminal = beyond a reasonable doubt o Tort law is between individuals, while Criminal law is between individuals & the state  Risk Management: A business risk with legal implications 1. Identify legal risks 2. Evaluate the size and likelihood of the risk 3. Decide on an action plan 4. Implement the plan 5. Regularly Review and Update the Plan **What is Law**  Law: An adopted set of mandatory standards that society accepts as predictable and organized behavior necessary for a just society  necessary to have predictability and certainty for contracts  Law is about relationships (often based on contracts) between parties  Legal Tools available to obtain compliance with the Law: 1. Civil Liability 2. Regulatory Liability 3. Criminal Liability  Ethics: Values or standards of conduct considered advisable in an honourable person **Common Law**  Judges can make law, make a decision that becomes binding in lower courts  English / French  Precedent / Stare Decisis  Role of the Statute  Levels of Court  Jury  Role of Government / Judges BU231 Lecture 1-2 Wednesday, May 8-15, 2013 Basis for Liability  Fault: unjustifiable injurious conduct that intentionally/carelessly disregards the interests of others o basing liability upon fault because people will be more careful if they pay for consequences o defect: you can’t always find someone to blame  no compensation o sometimes, the victim can be over-compensated when defendant is blameworthy  Strict liability: liability that is imposed based on causation regardless of fault o persists in only a few areas of modern tort law o some activities are inherently dangerous, regardless of the amount of care taken (explosives) o strict liability is often imposed by legislation o courts have raised the standard of care as the danger increases  impossible to satisfy this  Public policy: considerations or objectives that are considered beneficial to society as a whole o Question of whether liability should be based on fault, or strict liability, etc. o Policy objectives change with social standards  adapt from interventions to subtle influences o No-fault insurance: system of compulsory insurance that eliminates fault as a basis for claims o Workers’ compensation: employers contribute to a fund used to compensate workers injured in industrial accidents regardless of how the accident was caused (even when boss is blameless)  *Vicarious liability*: liability of an employer to compensate for torts committed by worker during employment  an employer may be held liable with or without fault for an act by an employee o Employer may be held liable for criminal, intentional, and unintentional tortious acts o Two public policy reasons for this approach 1) Although employee is personally liable, they often have limited assets to pay compensation 2) The person who makes the profit from an activity should be liable for any loss  fair *Intentional Torts*  Intentional = defendant intended to commit the tort  but harm can still be unexpected since intention relates only to behaviour, not the resulting damage  Due to the costs of litigation, mediation and arbitration came about  Assault and battery: Considered to be a trespass to the person o Two distinct torts, but usually found together  attacker may be fined or imprisoned o Assault: the threat of violence to a person o Battery: Unlawful touching of a person without consent (ex: handshake) - Consent is either expressed or implied  so if you fight back, you have consented - Can be both criminal and civil consequences - often the defendant won’t have the money so the plaintiff won’t be able to collect  Defamation: making an untrue statement that causes injury to the reputation of another o Elements of defamation: court will not compensate unless these elements are present 1. Intent (maliciousness) 2. Statement made: either spoken (slander) or written (libel) 3. Statement is false: false from an objerdive perspective (subjective claims cannot be proven) 4. Statement is published, i.e. made to a 3 party  if no one hears it, it’s not a defamation 5. Statement must cause “genuine and significant injury” to the reputation of the plaintiff. o Absolute privilege: complete immunity from liability for defamation  in parliamentary debates, even intentional and malicious falsehoods are immune from action in courts o Qualified privilege: immunity from liability for defamation provided a statement was made in good faith  honest belief in accuracy of statement when asked for the statement BU231 Lecture 1-2 Wednesday, May 8-15, 2013 o Responsible communication on matters of public interest: defence to defamation when publication of the statement is in the public interest and was done responsibly (ex: journalists)  Inducing Breach of Contract: (economic tort) intentionally causing one party to breach his contract with another  if A convinces B to break contract with C, C will sue B but may have a tort against A o 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 unlawful means to induce one 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.  Product defamation: making false and damaging statements about the product of another person  Passing off: representing one’s own goods as those of another (of a competitors)  using a product and reputation of a company and take advantage of it by getting people to buy their product  Trespass: unlawful entering, or remaining, on the land of another without permissions o Harm or damage must occur for any tort to be actionable!  Public nuisance: interference with the lawful use of public amenities o Blocking roads, interfering with the use of parks, emitting dangerous substances, etc. o Actions against wrongdoer can be brought on behalf of public as a whole o If someone is especially injured, he may be compensated against the wrongdoer  Private nuisance: interference with an occupier’s use and enjoyment of her land o Excessive noise, contaminating liquids o Occupier = owner of land, as well as tenants o does not give an occupier a right to absolute freedom from annoyances, because courts must weigh competing interests and consider 2 main issues 1) degree of interference with occupier’s use/enjoyment of the land 2) economic importance of the offending activity o level of interference that is tolerated varies according to local conditions o control over pollution is most effectively exercised through legislation that prescribes penalties for failure to comply with those standards  False imprisonment: unlawfully restraining or confining another person (no lawful justification) o False arrest: causing a person to be arrested without reasonable cause  includes imprisonment, but also includes holding the victim with the intention of turning over to police o Not necessarily physical restraint, or even a threat of physical restraint  “stop thief” counts o Real risk of liability in confronting someone without strong evidence of crime, even honestly. o Someone who honestly complains to police about suspected crime is not liable for false imprisonment if suspected criminal is arrested by police as a result (even if claim turns out false) o Malicious prosecution: causing a person to be prosecuted for a crime without honest belief that the crime was committed  then this person is guilty of malicious prosecution *Unintentional Torts - Negligence*  The behaviour itself is accidental and not done deliberately  harm can be unexp
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