Chapter 2: Tort Law

Question 1

What is Tort?

Answer 1

Civil wrong (other than a breach of contract) which causes harm to another person or his/her property. 
A civil lawsuit seeks compensation from the defendant for the wrong committed (unlike criminal lawsuit).

Question 2

What is Intentional Torts?

Answer 2

Knowingly/deliberately causing harm to another. Intentional torts may also be crimes but in civil court a successful plaintiff receives an award of damages.

Question 3

Examples of Intentional Torts:

Answer 3

1. Assault
2. Battery
3. False Imprisonment
4. Defamation
5. Trespass.

Question 4

Examples of Intentional Torts: Assault & Battery

Answer 4

• Assault: Threat of violence or injury to another person made intentionally.
• Battery: Unlawfully/intentionally touching or striking another person.
• Defence to a claim of Assault & Battery is having acted in self defence as long as force used wasn’t excessive. Also, consent constitutes another defence against battery.

Question 5

Examples of Intentional Torts: False imprisonment

Answer 5

• Unlawful/intentional detention of another person without consent. The restraint needs to be physical.
• Defence to a claim of false imprisonment is that the restraint was lawful rather than unlawful because a crime was committed.

Question 6

Examples of Intentional Torts: Defamation

Figure 2-1

Answer 6

• Intentional Interference with a person’s reputation through the publishing of false statements about that person.
• Defence to a claim of Defamation are truth, qualified and absolute privilege,, fair comment and plaintiff’s death.
• Libel: published defamation.
• Slander: spoken defamation.

Question 7

Examples of Intentional Torts: Trespass to Land and Goods

Answer 7

• Intentional interference; however, slight with a person’s right to exclusive possession of his/her property. It also occurs when someone who is on another’s land by invitation is asked to leave but refuses to go.
• Defence to a claim of trespass include being present on the property with permission of being present by accident.

Question 8

Unintentional Torts: Nuisance

Answer 8

• Activity by one occupier of property that unreasonably/substantially impairs a neighbour’s use/enjoyment of his/her property.
• Injunction: is issued by the court if the community is not affected as a whole; otherwise, it may award damages.
• Statutory nuisance with government land-use controls often replace the tort of nuisance.

Question 9

Unintentional Tort: Negligence: Duty of care

Answer 9

• Unintentional Tort that occurs when someone carelessly/inadvertently causes harm to another person. A person’s right to act freely is counter-balanced by a duty in the exercise of freedom, to be careful not to injure one’s neighbour (anyone who reasonably/foreseeable could be affected by one’s acts).

Question 10

Unintentional Tort: Negligence : Breach of duty of care

Answer 10

• Standard of care is determined by an application of the Reasonable Person Test (“How would a reasonable person in the same circumstances as a defendant have behaved”?).
• If defendant’s actions fall bellow the standard or care expected, the duty of care has been breached and the defendant may be liable for plaintiff’s loss.

Question 11

Unintentional Tort: Negligence: Causation & Remoteness

Answer 11

• Requirement of causation: “But for the conduct of the defendant, would be the plaintiff’s injury not have occurred?”.
• Defence of Remoteness: “Was it reasonably foreseeable/predictable that the defendant’s act would have cause the plaintiff’s injury?”.

Question 12

Unintentional Tort: Contributory Negligence & Willing Assumption of Risk

Answer 12

• Defence of Contributory Negligence determines degree to which the plaintiff may be held responsible for his/her own harm.
• A court may apportion blame on percentage basis.
• Defence of voluntary assumption of risk may negate a negligence claim if plaintiff willingly participated in a dangerous sport.

Question 13

Unintentional Tort: Occupier’s Liability

Figure 2-2

Answer 13

• Represent’s duty of care owed by occupier’s to place who enter onto their business or residential property. Most provinces/territories have enacted occupiers liability acts imposing the reasonable person standard of care on occupiers. Under common law, varying standards of care are expected depending whether the entrant is a trespasser, licensee or invitee.

Question 14

Unintentional Tort: Vicarious Liability

Answer 14

• When someone besides the individual who has committed a tort is liable such as employee/partner. Liability may be found if the tort occurred in the course of work being carried out for the benefit of an employer/partnership.

Question 15

Commercial/Professional Negligence

Answer 15

• When a professional is careless in the performance of a duty carried out for a client/patient.

Question 16

Commercial/Professional Negligence: Misstatements

Answer 16

When an expert has been careless in the preparation of a financial statement or other report upon which a client/third party has relied.
* A defence of remoteness may arise from examining the intended use of the financial statement or report.

Question 17

Commercial/Professional Negligence: Manufacturer’s negligence

Answer 17

Places a very high standard of care upon manufacturers to ensure their products will no harm a consumer. Warnings of danger from improper handling and specific instructions for safe use may help a manufacturer to avoid liability.

Question 18

Defence to claims of negligence

Answer 18

A business/individual is not automatically liable for a client’s loss.

• Act of God: defence if the loss is directly caused by a force of nature that no amount of care/skill could prevent.
• Waiver: promise in writing brought to the attention of the person waiving the right, not to sue.
• Release: precludes future legal action but offers compensation to the plaintiff as a settlement, without actually acknowledging liability for loss.

Question 19

Tort remedies

Answer 19

• Award of damages: most commonly used to place the injured in the position he/she was prior to having suffered the injury.
• 4 types of damages:
  1. Special damages for specific losses.
  2. General damages for the plaintiff’s pain/suffering.
  3. Punitive damages to punish the defendant and deter others from egregious conduct.
  4. Nominal damages acknowledging a plaintiff’s right has been infringed.

Question 20

Business-Related torts

Answer 20

• Slander of goods/tittle: false statement by a competitor regarding the nature of quality of goods, or allegation that goods are stolen or illegally imported.
• Fraudulent Missrepresentation: false statement that intends to deceive and induces the other person to enter a contract.
• Fraudulent Conversion: goods are acquired under false pretences such as by a cheque drawn on a non existing bank account.

Question 21

Risk Management in Tort Liability

Answer 21

• Managers have a duty of care to foresee/preclude accidents.
• Workplace policies/procedures help minimize risk. Inspection/Quality control reduce chance of defective products, and open channel with customers ensure quick recalls of products.