Chapter 2: Tort Law Flashcards
What is Tort?
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).
What is Intentional Torts?
Knowingly/deliberately causing harm to another. Intentional torts may also be crimes but in civil court a successful plaintiff receives an award of damages.
Examples of Intentional Torts:
- Assault
- Battery
- False Imprisonment
- Defamation
- Trespass.
Examples of Intentional Torts: Assault & Battery
- 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.
Examples of Intentional Torts: False imprisonment
- 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.
Examples of Intentional Torts: Defamation
Figure 2-1
- 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.
Examples of Intentional Torts: Trespass to Land and Goods
- 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.
Unintentional Torts: Nuisance
- 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.
Unintentional Tort: Negligence: Duty of care
- 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).
Unintentional Tort: Negligence : Breach of duty of care
- 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.
Unintentional Tort: Negligence: Causation & Remoteness
- 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?”.
Unintentional Tort: Contributory Negligence & Willing Assumption of Risk
- 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.
Unintentional Tort: Occupier’s Liability
Figure 2-2
- 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.
Unintentional Tort: Vicarious Liability
- 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.
Commercial/Professional Negligence
- When a professional is careless in the performance of a duty carried out for a client/patient.
Commercial/Professional Negligence: Misstatements
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.
Commercial/Professional Negligence: Manufacturer’s negligence
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.
Defence to claims of negligence
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.
Tort remedies
- 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.
Business-Related torts
- 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.
Risk Management in Tort Liability
- 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.