BU 231 Midterm Flashcards
Define Assault
The threat of violence
What are the 4 elements of Assault?
- Intentional?
- Uttering of a threat
- Is likely to cause a reasonable apprehension of imminent physical harm
- Is it against a person or an identifiable group?
Define Battery
The actual physical contact
What are the 3 elements of Battery?
- Intentional?
- Applying unlawful force
- Without consent
Define Trespass
Entering upon another person’s land without permission, no point in suing unless the landowner can establish some loss
What are the 3 elements of Trespass?
- Intentional?
- Entering the property
- Without consent
Define Defamation
The making of untrue statements that causes injury to the reputation of another person
What are the 2 types of defamation?
- Libel (written)
- Slander (spoken)
What are the 3 elements of defamation?
- The material is defamatory - it lowers the plaintiff’s reputation in the eyes of a reasonable person
- The material must refer to the plaintiff
- The material must be communicated or published to at least one other person
For defamation, when might the court award for damages?
If the plaintiff can demonstrate that the defendant’s remarks taken as a whole would discredit the plaintiffs reputation in the mind of an ordinary person
What do defamation torts require?
Publication - meaning the communication of the offending statement to someone other than the person defamed
What is a defence for defamation?
It must be proven that the alleged defamatory statements are honestly believed to be true.
Define Inducing breach of contract
intentionally causing one party to breach their contract with another
Usually if A convinces B to break his contract with C. C will sue B for the breach of contract. C may also sue A for the tort of inducing breach of contract
Unlawful interference with economic relation
Attempting by threats or other unlawful means to induce one person to discontinue business relations with another
Elements of Unlawful interference with economic relation
- Existence of the business relationship
- Knowledge about the relationship
- Intentional interference - which has to be illegal
- There must be a loss
What are considered intentional torts?
- Trespass
- Defamation
- Battery
- Assault
- Interference with Contracts/Business Relations
What are the 2 Strict Liability Torts?
- Public nuisance: protects the public interest and access to public places
- Private nuisance: protects an occupier’s right to the reasonable use and enjoyment of their own land – without substantial interference from direct and indirect activity on neighbouring property
EX. Noxious fumes, excessive noise, or contaminating liquids poured into rivers or seeping through the soil
Define Vicarious Liability
strict liability of an employer to compensate for torts committed by an employee during the course of his or her employment
What are the 2 public policy reasons for taking this approach?
- Although the employee is personally liable for the torts he commits while acting for himself or his employer, employees often have limited assets available to pay compensation for the potential harm they can cause
- It seems only fair that the person who makes the profit from an activity should also be liable for any loss
What are the 3 types of Damages?
- Special (pecuniary): quantifiable damages (e.g. sales losses). Example: medical bills, lost wage, etc.
- General: not quantifiable (e.g., pain and suffering), the judge may quantify based on past cases
- Punitive (rare): punishment for egregious conduct, these are rare in Canada
What are some defences to a tort action?
- Contributory negligence – The plaintiff contributed to their own injuries and is therefore unable to fully recover damages, You can get some compensation
- Voluntary assumption of risk – The plaintiff knew of a risk and voluntarily assumed it, barred from recovery, You get zero compensation
- Ex turpi causa – a plaintiff is barred from recovery if injured while in the midst of an illegal activity, You should also get zero compensation
- Consent – if the plaintiff consents to a tortious, no wrong is committed and the plaintiff is barred from recovery, Zero compensation
Define Fiduciary Duty of Care
When a person is in a “special” vulnerable relationship with a professional, the law imposes a fiduciary duty on that professional, e.x. a parent, a doctor, a trustee.
What makes someone a fiduciary? What are the 3 characteristics?
(1) Has the scope for the exercise of some discretion or power;
(2) Can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests;
(3) The beneficiary is peculiarly vulnerable to, or at the mercy of, the fiduciary holding the power or discretion.
What are the Fiduciary Duties owed?
Must place the beneficiary’s interest before the fiduciary’s interest or any other interest except the law.
Must not have conflict of interest
What is needed to impose liability for breach of fiduciary duty?
- Establishing the relation is a fiduciary one
- Determining if the professional’s behaviour breached the fiduciary obligations
If an employee commits a tort during employment, is the employer liable at all? If so, what is this called?
Vicarious liability: the strict liability of the employer concerning torts committed by an employee during their employment
What is the key difference between intentional and unintentional torts?
Intentional torts are done deliberately (on purpose, with intent, etc)
Unintentional torts are caused by accidental behaviour
Vicky owns the entire 275 Larch Building F. Without permission, Joey walks into the building to go and steal her charger back that Vicky took yesterday.
What is James’ potential cause of action?
What are the elements to prove here and does this case have any elements at all?
If a cause like this does not have all the elements, can the claim still go forward?
Cause of Action for Vicky: Trespass
Elements
1. Intention
2. Entering property
3. Without consent
4. Causing harm
It could be argued there is no cause of harm here given that James might not have needed the charger.
You could have argued that the aspect of it was not consented to and therefore the trespass did cause harm
If one of these elements were missing, the case may not proceed
In a trespass case, where is the onus?
The burden of proof is on the plaintiff to prove the elements of the cause of action
After seeing that Joey had returned her charger, Vicky visited Joey at Laz the next day. She was furious she did not have Joey’s charger. Joey said she needed it but Vicky wasn’t having it. She lifted her fist and gestured it towards Joey.
Is there a cause of action?
What is this tort called?
What does it require?
There is a cause of action: Assault
- The threat of violence to a person
Requires: the apprehension by the defendant of imminent bodily harm
Joey goes home, shocked at Vicky’s reaction. Joey muttered under her breath, I’m going to guillotine this woman.
When Joey said this, another person was on call with her and this person told Vicky that Joey said this.
Vicky wanted to get back at Joey by suing her for assault.
Does she win?
Vicky can’t win.
Assault requires the apprehension by the defendant of imminent bodily harm.
Joey was not near Vicky and Vicky only heard about it later.
Joey could also argue in court that she does not own a guillotine and therefore the harm is not imminent.
Suppose Vicky took action at Laz and punched Joey int he neck. Joey’s the bigger woman and Vicky is pretty weak so Joey was ok after the punch.
Regardless, Joey believes he has a cause of action, what might this be?
Vicky defends against this cause of action by stating that Joey could take it, she’s a strong woman.
Is Vicky’s defence valid?
The cause of action is battery, the unlawful touching of another person. (The physical act itself)
Vicky’s defence is not valid.
Joey does not need to show damages in court, only that the touching was unconsented. This is called “Actionable per say”