Chapter 4 Revised

Question 1

What is the origin of the word “tort”, and what does it mean?

Answer 1

The word tort is originally French, meaning “wrong”.

A tort is improper behavior by one person that causes injury to another, sometimes intentionally but more often unintentionally. The injury may be physical or financial.

Question 2

What is the principal purpose of tort law?

Answer 2

The purpose of tort law is to compensate victims for harm caused by the activities of others. Usually punishment is left to criminal law, if the conduct amounts to a crime.

A tort identifies a situation that creates a right to claim compensation for harm.

Tort law is one way of apportioning (who should bear) loss, along with other approaches such as insurance and government compensation schemes.

Question 3

What is fault in the context of tort law? What are the pros and cons of basing liability on fault?

Answer 3

Fault refers to blameworthy or culpable conduct
> conduct that in the eyes of the law in unjustifiable because it intentionally or carelessly disregards the interests of others

Pros - It should be a deterrent for culpable conduct
Cons - If a victim cannot establish fault then they will go uncompensated

Question 4

What is meant by “strict liability”? Explain with examples.

Answer 4

Strict Liability: liability that is imposed based upon causation regardless of fault. It applies to only a few areas of tort law.

A person knowingly undertaking an inherently dangerous activity should be strictly liable for resulting damage, regardless of fault. Why?. Because that person could charge for his services according to the degree of risk and could carry adequate insurance to compensate for possible harm done to others.

Example: transporting high explosives. or storage of dangerous chemicals

Question 5

How does public policy impact the application of the basis for liability? What is an example of an application?

Answer 5

Public policy considerations (economic, social, and political) and objectives are believed to be beneficial to society as a whole. How liability should be applied can often be a public policy question.

For example:

Most Canadian jurisdictions have adopted some form of no-fault insurance for automobile accidents. It eliminates fault as a basis for compensation. ie. your damages will be covered regardless of whose fault the accident was.

Question 6

How does a scheme like workers compensation deal with fault?

Answer 6

workers compensation: a scheme where accidents are seen as the price of doing business. Employers contribute to a fund that is used to compensate injured workers; regardless of fault. Tribunals rather than courts decide on compensation.

Question 7

What is vicarious liability?

Answer 7

Vicarious liability is strict liability of an employer to compensate for torts committed by an employee during the course of his or her employment.

Question 8

What are the two public policy reasons for the approach to vicarious liability?

Answer 8

1) although the empoyee 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 cause.
2) It seems fair that the person who makes profit from an activity should be liable for any loss.

Question 9

What are the Intentional Torts? ***

Answer 9

A&B, TNFF, MDDI, UP

1. Assault (the threat of violence to a person) and Battery (unlawful physical contact with a person)
2. Trespass (unlawful entering, or remaining, on the land of another without permission)
3. Nuisance: Public(unreasonable interference with the lawful use of public amenities or the public interest) or Private (substantial and unreasonable interference with an occupiers use and enjoyment of land)
4. False imprisonment
5. False arrest
6. Malicious Prosecution
7. Defamation > libel
8. defamation > slander
9. Inducing breach of contract
10. Unlawful interference with economic relations
11. Product defamation

Question 10

Explain the 3 intentional torts related to business (intentional Economic torts)

Answer 10

Inducing breach of contract: Intentionally causing one party to breach her contract with another.

unlawful interference with economic relations: attempting be threats or other unlawful means to induce one person to discontinue business relations with another. ex intentional interference with contractual relations

product defamation: making false and damaging statements about the products of another person. ex> passing off > tries to pass off a product as another persons established product

Question 11

What is negligence? What are the elements of Negligence?

Answer 11

Negligence: carelessly causing injury to the person or property of another.

To establish negligence, a plaintiff must prove four things (on the balance of probabilities)

1. The defendant owed the plaintiff a duty of care. Should the defendant have been aware of the risk of harm to this victim?
2. did the defendant breach the required standard of care or behavior required by the circumstances
3. The plaintiff suffered an injury > focus on causation > “ but for the actions of”
4. the defendants conduct caused the plaintiffs damage

Question 12

Define and explain duty of care. What are the key factors in determining if duty of care was owed?

Answer 12

A relationship so close that one could reasonably foresee causing harm to the other.

Key Q - Is the relationship so close that it should have been foreseeable that the conduct could harm another? “The reasonable man” test.

Key factors are:

1. Proximity > closeness
2. Forseeability > predictability
3. Is there a public policy reason to not place a duty of care?

Question 13

How do the courts determine the appropriate standard of care to be expected of a defendant?

Answer 13

The defendants conduct is compared to the level of care that a reasonable person would take in the same circumstances.

At trial the plaintiff must establish the standard of care applicable to the circumstances and then produce evidence that the defendants behavior fell below that standard

Question 14

What is the “but for” test for determining causation? Why is it important?

Answer 14

The plaintiff must show that “but for” the negligent conduct of the defendant, the injury would not have occurred. No matter how improper a person’s conduct might be, he will not be held liable for damage that he did not cause.

Question 15

What is meant by economic loss?

Answer 15

Economic loss is real loss of value or profit, even worsening losses

Question 16

What are the primary defenses to negligence?

Answer 16

REMOTE CONTRIBUTING ASSUMPTION

1. Remoteness of damage: Though harm did occur, the harm is so far removed , so remote that that the wrongdoer should not be held liable
2. contributory negligence: failure of an injured plaintiff to act prudently, considered to be a contributory factor in the injury suffered, and sometimes reducing the amount recovered from the defendant
3. voluntary assumption of risk: a defense to a negligence action when the plaintiff was aware of the risk and continued with the activity anyway.

Question 17

What is Contributory negligence?

Answer 17

Contributory negligence is a partial defense to a negligence action when the plaintiffs or another defendants conduct also contributed to the injury

The rule allows judges and juries to apportion damage according to their opinion of the respective degree of responsibility of all the parties.

In some case the courts have decided that part of the damages were due to the plaintiff unreasonable conduct and were therefore not recoverable.

Question 18

It is relevant in a tort action that the injured party has taken out insurance against the loss sustained? What is subrogation?

Answer 18

No

Often the defendant has insurance that will cover the loss and defend it it the lawsuit. Sometimes the plaintiff has insurance that will cover the loss, too

Once a plaintiff recovers from its insurance the right to claim then passes to the insurance company. This is subrogation: where one person becomes entitles to the rights and cause of action of another

Question 19

What is product liability?

Answer 19

A negligence tort imposing liability on manufacturers for harm caused by defective products.

Question 20

When is a manufacturer under a duty to warn?

Answer 20

The duty to warn is the manufacturer’s responsibility to make users aware of the risks associated with the use or misuse of the product

If, after a product has been placed on the market, the manufacturer becomes aware of potential dangers in its use, it must issue appropriate warnings to the public.

if consumer would have used regardless of warning does not apply

Question 21

What is occupiers liability?

Answer 21

A negligence tort imposing liability on occupants of land for harm suffered by visitors to the property

Question 22

What is the distinction between invitees and licensee’s regarding occupiers liability?

Answer 22

invitees (a person permitted by an occupier to enter)

licensee (a visitor who enters premises with the consent of the occupier).

All visitors lawfully on the premises must be kept reasonably safe. The occupier must take care to prevent harm from hazards or dangers that he is aware of or should have been aware of on his land.

Question 23

What duty of care is owed to trespassers?

Answer 23

Duty is still owed to a trespasser, but the standard of care that must be met is lower than that for expected visitors. It is minimal _ the occupier must not set out deliberately to harm the trespasser or recklessly disregard the possibility that his acts might injure a trespasser.

Question 24

What are the unintentional torts?

Answer 24

1. Negligence
2. Product liability: a negligence tort imposing liability on manufacturers for harm caused by defective products.
3. Occupiers liability: a negligence tort imposing liability on occupants of land for harm suffered by visitors to the property.

Question 25

What is an injunction?

Answer 25

An injunction is an order to the defendant to refrain from committing further acts of similar nature under threat of imprisonment for contempt of court

Question 26

What are the 4 types of consent?

Answer 26

EIIU

expressed:

implied:

informed:

unanimous:

Question 27

What is expressed consent?

Answer 27

expressed: is clearly and unmistakably stated, rather than implied. It may be given in writing, by speech (orally), or non-verbally,

Question 28

What is implied consent?

Answer 28

implied: is consent inferred from a person’s actions and the facts and circumstances of a particular situation. example: implied consent to follow rules and/or regulations at an education institution and the implied consent to physical contact by participants in a hockey game or assault in a boxing match.

Question 29

What is informed consent?

Answer 29

informed: in medicine is consent given by a person who has a clear appreciation and understanding of the facts, implications, and future consequences of an action

Question 30

What is unanimous consent?

Answer 30

unanimous: or general consent, by a group of several parties

Question 31

Distinguish between libel and slander. What must be proven for their to be defamation?

Answer 31

Defamation: Words that when published would tend to bring a person into disrepute among their peers. Must be published: communicated to a third party

Libel is written defamation

Slander is spoken defamation

It must be:
Detrimental
published
false

Truth is best defence

Question 32

What is meant by “privilege” in the context of defamation? **

Answer 32

Absolute privilege is complete immunity from liability for defamation. The aim is to produce candid discussion; as a result even intentional and malicious falsehoods uttered in parliament are immune from action in the courts

qualified privilege is immunity from liability for defamation provided a statement was made in good faith with an honest belief in its accuracy; even if the statements turn out to not be true

Question 33

What is the purpose of damages? What damages can be awarded?

Answer 33

The purpose of damages is to restore the plaintiff, so far as is possible, to the position she would have been in if the tort had not been committed; not to punish the wrongdoer.

Punitive: Punitive damages are awarded with the intention of punishing a wrongdoer. They are typically awarded in extreme situations to shoe the courts disapproval of intentional conduct.

Special: money to compensate for quantifiable injuries. Pain and suffering, and loss of enjoyment of life

Question 34

What is the thin skull rule?

Answer 34

> Thin skull rule is a principle of common law which states that particularly fragile victims of torts should be fully compensated for their losses, even where the damages arising out of their predisposing condition were not foreseeable to the defendant’s particular

The general maxim is that defendants must “take their victims as they find them”.susceptibility.

Question 35

What is the crumbling skull rule?

Answer 35

> The crumbling skull rule deals with a plaintiff that has an unstable pre-existing condition. The defendant need not compensate the plaintiff for the effects of their condition, which they would have experienced anyway. The defendant is liable for additional damage, but not the pre-existing damage.