CH 4 - Torts Flashcards
The Nature of Torts
Tort: a social or civil wrong that gives rise to the right to
sue and to seek one of several remedies (i.e. general
or punitive damages or injunction)
* A tort has usually been committed when an
intentional or careless act harms another
* Injured party may sue for redress
* Tort law compensate victims, acts as a deterrent,
and educates society
Tort pt 2
Crimes are social wrongs that affect society as a
whole
– Prosecution for such acts is carried out by the state
– Focus is to punish the wrongdoer
* Wrongful conduct is often both a crime and a tort
* Easier to successfully sue for tort as standard of
proof in tort law is based on a “balance of
probabilities” test
The Nature of Torts pt 3
Breach of contract may not stem from an act that
is inherently wrong, but the breach entitles the
victim to a remedy
* Tortious activity is inherently wrongful conduct
* May be intentional or unintentional (negligent) acts
– Remedies differ
Remedies for tort
Damages (monetary compensation)
– General: pain and suffering or for future lost wages
– Special: reimburse the litigant for expenses or costs
incurred before the trial
– Punitive: not to compensate the victim but rather to
punish the wrongdoer
* Supreme Court of Canada has placed an upper
limit on non-pecuniary (non-monetary) losses of
$356 000
* Court can also order the return of property or
grant an injunction
Intentional Torts
Intentional: means that the conduct was intended
or deliberate (wilful) as opposed to inadvertent
– Wrongdoer does not need to intend to do harm
* Trespass to Person (Assault and Battery)
– Assault: conduct that makes a person think they are
about to be struck
– Includes threats
– Battery: when someone intentionally make unwanted
contact with another person
– Intent to harm is not required
Ex called city to fix ice on sidewalk, city didnt do it, and then someone slipped and fell, it was not intentional but it did cause someone to get hurt.
Defences to Assault and Battery
- Consent is a defence
– Must be informed and voluntary (Halushka v. University
of Saskatchewan)
– Physical touching beyond that consented to is battery
– Consent can be outlined and limited (i.e. medical
treatment)
“ex boxer consents to fight in the ring” therefore can sue for battery” - Self-Defence
– Necessary force (must be reasonable, not unrestrained
violence) to defend self or eject trespassers is
permissible
“jehovas witness blood transfusion” right to control any interference
the self defence has to be reasonable
Trespass to Land
Being on another’s land without lawful right or the
owner’s permission
– Ignorance is not a defence
– Permission implied for people acting in professional
capacity or for business offering public services
* Occupier owes a no duty of care to trespassers
“goods, car etc is land. Only defence for the victim is that they had no control
Trespass to Chattels, Conversion, and
Detinue
Wrongful interference with goods
* Trespass to chattels:
– Where the plaintiff has possession that is interfered
with physically by the defendant
* Conversion:
– Involves one person intentionally appropriating the goods of “theft” pretending something is yours.
another person for their own purposes
– Ex. theft
– One may be sued for conversion if buying goods from
someone other than owner
Detiune/tresspass
Detinue:
– Where a person is wrongfully retaining goods
– May have come into possession of them legally but
refuses to return them
– Calculation of damages essentially amounts to a forced
sale of the good
False Imprisonment
he unlawful and intentional restraint of persons
against their will
1. Personal liberty is totally restrained
2. Restraint is unlawful
* Defence
– Section 494 of the Criminal Code: restraint may be
justified if persons have done something for which they
may be arrested
* Poses a significant risk for businesses if customers are
detained when suspected of wrongdoing
“you all have to give me 20$ or your not leaving example”. “personally liberty has to be restrained”. if theres lawful restraint then its fine.
Malicious Prosecution
Available to victims of improper use of criminal
justice system
* Conditions (McNeil v. Brewers Retail Inc):
1. The defendant in the tort action must have initiated a
criminal or quasi-criminal prosecution
2. Accused acquitted or prosecution abandoned
3. Prosecution motivated by malice
4. No reasonable grounds to have originally proceeded
with criminal action
Private Nuisance
Private nuisance: when a party uses property in
such a way that it causes damage to property or
interferes with a neighbour’s use or enjoyment of
their property
– Neighbour does not need to be a direct neighbour
* Actionable only when property is being used in an
unusual or unreasonable way
Need to establish that this interference was
1. Substantial
2. Unreasonable
in light of all the surrounding circumstances
* Focuses on the harm suffered by the victim rather
than on whether the conduct by the defending
party was wrongful
* Often involves offending substances, so one of
the few common law tools that can be used to
enforce environmental protection
Defamation
Defamation: a detrimental false statement about
someone; must be published or broadcast
* Once the plaintiff establishes that a derogatory
statement was made, he need not prove it was
false, burden on defendant to show it is true
* It is possible to defame a corporation or a product
* To “publish” means that the statement had to be
communicated to a third party
Damages for defamation can be substantial
* Cyber libel: occurs when someone posts on the
internet or emails a statement that is untrue and
damaging relating to another individual
* A court will consider the size of the audience and
the time the defamatory material is available to be
viewed when assessing damages
* Special, aggravated, and punitive damage awards
may be ordered
Successfully Establishing a Tort Claim
Assault
- Deliberate threat creating fear of imminent harm
- No consent
“threat” im going to shoot you”
