4.0 TORTS

Question 1

Tort

Answer 1

Parties come together but not necessarily by contract

Civil wrong

Breach of duty of care owed by another party that causes injury or loss to the other party

Question 2

Tort categories

Answer 2

1. Intentional
   a. Fraud
   b. Trespass
   c. Defamation
2. Unintentional
   a. Negligence
   b. Negligent Misrepresentation

Question 3

Negligence and it’s 4 basic elements

Answer 3

Most common unintentional tort

• 1. Defendant owed plaintiff a duty of care
  2. Defendant breached that duty
  3. Plaintiff suffered loss or injury
  4. Breach of duty by the defendant was the proximate cause of the plaintiffs loss*

Need all 4 elements for negligence

Negligent statements made carelessly without intention to deceit

Question 4

Duty of care

Answer 4

Unsettled area of law

Based on REASONABLE FORESEEABILITY (eg. you have host liability at bar not so much at a house party)

More likely to exist where there’s preexisting relationship

Can owe duty of care with no contract eg. When eng is hired by architect

Question 5

Pure economic loss

Answer 5

Financial loss without any injury or property damage

Can be recovered for negligent misrepresentation and dangerous defects

Question 6

Breach of duty

Answer 6

Occurs when the standard of care is not met

Commonly occur due to lack of care (fix by checklists and quality control procedures) and not incompetence (fix by CPD)

Question 7

Standard of care

Answer 7

Defined by what a reasonable and competent member of that occupation would have done in the situation

Established by expert evidence, practiced norms, etc.

Determined considering the state of art AT TIME OF BREACH

Question 8

Causation

Answer 8

Loss caused by defendants breach of duty are recoverable ie. losses which, BUT FOR THE BREACH, would not have occurred

Loss must be proximate (not too far from the breach)

Plaintiff proves causation

Question 9

Negligent misrepresentation

Answer 9

Unintentional tort.

False statement (misrepresentation) made in breach of a duty of care

Limited by proximity

Duty of care owed to who it is reasonably foreseeable

Causation is established by proving misrepresentation

Pure economic loss is recoverable

Question 10

Fraud

Answer 10

=deceit

Intentional tort

Fraudulent statements (misrepresentation) are made with intentional to deceive and knowledge they are untrue

Question 11

Fiduciary duty

Answer 11

Exists when there’s relationship of trust where the fiduciary is required to put the interest of the beneficiary ahead of its own

Fiduciary: Party owing duty
Beneficiary: party owed the duty

Eg. Trade secrets, confidential info, doc-Patient

Question 12

Fiduciary duty exists when

Answer 12

Fiduciary has ability to excessive discretion or power

Fiduciary can unilaterally exercise that power so as to affect beneficiary

Beneficiary is vulnerable to the power of the fiduciary

Question 13

Trespass

Answer 13

Unauthorized entry into land of another person

Intentional tort

It’s a strict liability Tort (plaintiff is not required to prove intention or neglect)

Eg. Crane as property right extent to sky and below surface

Question 14

Nuisance

Answer 14

Strict liability tort

Eg. Fire burning to neighbours, tailing pond runoff, water flooding

Question 15

Duty to warn

Answer 15

Tort duty

Professional have to warn others of impending (possibly upcoming) damage to persons or property

Question 16

Products liability

Answer 16

Liability of manufacturer to consumer for a defective product

Used when consumer doesn’t have contract with manufacturer

Question 17

Learned intermediary rule

Answer 17

When the person dispensing the product (eg. Doc, pharmacist) has duty to warn

Question 18

Can you be liable under tort and contract?

Answer 18

Yes as long as the contract doesn’t define nature and scope of DUTY OF CARE

Therefore can get sued under both tort and contract since 1986 case