Chapter 7 - Torts of Intention and Negligence: Private Law, Public Interest

Question 1

The Word “tort” is derived from latin tortus meaning “_____” or “_____”

Answer 1

crooked or wrong

Question 2

What does the oxford dictionary defines a tort as?

Answer 2

a breach of a legal duty, other than under contract, with liability for damages.

Question 3

Are torts tried as a public or private wrong?

Answer 3

Torts can only be pursued as a private matter by or against another individual, corporation, or arm of government.
A private wrong (as opposed to a crime, which is a public wrong punishable by the state).

Question 4

What is the object of a tort? Are individuals found guilty in tort law? How is this different from criminal law?

Answer 4

• The object of the tort system is to compensate victims of either intentional or negligent acts.
• There is no guilt in tort—only a testing of individual or collective liability.
• Criminal law, on the other hand, does not exist to compensate victims of various prohibited acts but to punish wrongdoers and, in so doing, protect the general community (i.e., the country

Question 5

What was the outcome of the OJ Simpson trial for both criminal and tort?

Answer 5

• Criminal Court: Not guilty
• Tort Action in Civil Court: civil jury determined that it was more probable than not that Mr. Simpson was responsible for these deaths. On the basis of the jury’s finding of tortious liability, substantial damages were ordered to be paid by Simpson to the Goldmans and the Browns.

Question 6

What is an Intentional Tort?

Answer 6

• Torts that occur as a result of a wrongdoer intentionally (or apparently intentionally) harming another either physically or mentally. These include the torts of assault, trespass, and defamation, to name a few.
• An intentional tort occurs when someone acts on purpose. That is, a person purposefully intends the action that results in your injuries. Battery is considered an intentional tort. When a person strikes you on purpose, you can recover your damages.
• Other examples of intentional torts include trespassing, theft, causing emotional distress and false imprisonment. Intentional infliction of emotional distress also falls under this category, which occurs when a person engages in conduct with the intention of inflicting extreme fear in another person. This can lead to physical harm in addition to emotional distress. Other common intentional torts are wrongful death when intentional actions resulted in death, fraud, defamation and invasion of privacy.

Question 7

What is Negligence?

Answer 7

• A person or legal entity will be found to be negligent when his, her, or its conduct falls below the standard expected of the reasonable person in the specific circumstances in question and when damages are incurred as a result of this negligence.
• When a person doesn’t exercise enough care and caution, and their actions result in someone else’s injury, they’ve acted negligently. Negligence is a failure to use reasonable care.
• As we go about our business in the world, we have a duty not to act in ways that pose an unreasonable danger to others. When a lapse in that duty of care results in an injury to someone else, the negligent person owes the victim for their damages.
• Reasonable person is a fictional character who exists in private law (primarily tort) and who decides whether explanations offered by the wrongdoer are rational.

Question 8

Tort liability is premised upon meeting what test? How is this different than criminal proceedings?

Answer 8

Tort liability is premised upon meeting a balance of probabilities test, whereas criminal conviction demands proof of the offense beyond a reasonable doubt. Hence, it is much less difficult to find liability in tort; the plaintiff has only to make a case that is more probable than not.

Question 9

what is the objective of compensatory damages in tort law? what is required for individuals to receive these damages?

Answer 9

• damages are meant to return an injured party to the position it was in before the defendant’s wrong
• In order to obtain damages, however, the plaintiff will still have to prove that their injuries were not too remote, were caused by the defendant’s behavior, and should not be reduced due to a failure to mitigate.

Question 10

What are Compensatory Damages? State the two main sub-categories.

Answer 10

Courts award plaintiffs compensatory damages as recompense for harm the plaintiff suffered. Compensatory damages often fall into two sub-categories: general and special damages.

Question 11

What are General Damages?

Answer 11

• General damages compensate a plaintiff for non-monetary aspects of their loss, such as pain and suffering.
  For example, if John is rear-ended and suffers injuries, he is entitled to damages as a result. Courts will calculate his damages by referencing previous, similar case law. If other plaintiffs received $50,000 for injuries like John’s, then John will likely also receive $50,000.

Question 12

What are Special Damages?

Answer 12

• Special damages compensate a plaintiff for financial aspects of their loss. The simplest way to understand these damages is to think of out of pocket expenses that are incurred as a direct result of the tort.
  For example, let’s say John has to the pay the expenses up front out of his own pocket for painkillers or massage therapy or perhaps the rental of a car. John is also entitled to recover these financial losses he incurred due to the accident.

Question 13

what are non-compensatory damages? state the three types.

Answer 13

Courts might also award non-compensatory damages such as punitive, aggravated, and nominal damages.

Question 14

What are Punitive Damages?

Answer 14

• Courts award punitive damages when a party has committed egregious behavior which the court wishes to punish and deter.
  For example, in one case an insurance company tried to avoid covering a family’s home which burned down by claiming the family committed arson. In that case, the Supreme Court of Canada held that a high punitive damages award was justified.
• Courts will only award punitive damages in extreme circumstances when the defendant’s behavior was particularly shocking. If compensatory damages will deter the defendant’s wrongful behavior, then punitive damages are not appropriate.

Question 15

what are aggravated damages?

Answer 15

• Courts award aggravated damages where the defendant’s conduct has caused the plaintiff particular distress, grief, or humiliation. Aggravated damages are therefore easily confused with punitive damages, but the two serve different purposes. Punitive damages punish a wrongdoer, whereas aggravated damages compensate a plaintiff. In some cases, a defendant’s high-handed and unkind behavior may justify aggravated damages yet fall short of punitive damages.

Question 16

what are nominal damages?

Answer 16

• Courts will award a small, “nominal” damages award when the defendant only slightly infringed the plaintiff’s rights, the plaintiff failed to prove a meaningful loss, or the plaintiff failed to mitigate.

For example, if Carrie punched Alice, then Carrie would have committed the tort of battery (and the criminal offence of assault). Alice could sue Carrie in tort and seek damages. But if Alice did not suffer a serious injury, she might only receive nominal damages.
Similarly, let’s say Nick spread rumours about his business competitor Olivia, and she sued him for defamation. Even though Nick defamed her, if Olivia fails to prove that the rumor caused her a loss, she might only receive nominal damages.

Question 17

what is an intentional tort claim?

Answer 17

Assault, Battery, Sexual harassment or assault, Vandalism, Intentional infliction of emotional distress, Fraud, Defamation, False imprisonment, invasion of privacy, trespassing

Question 18

what are the 4 essential elements in a negligence claim?

Answer 18

• Duty of Care (Standard of Care) – The first is that a person is in a situation where they have a duty to act carefully.
  For example, drivers on the roads have an obligation, or duty, to drive carefully for the safety of everyone else and to avoid a car accident.
• Breach of Duty – The second aspect of a negligence claim is that the person must fail to act as carefully as they should.
• Causation – Next, this failure must result in a loss or injury to someone else.
• Damages – Finally, the victim must have physical, emotional or property damages because of what occurred.

Question 19

Explain the difference between negligence and intentional tort?

Answer 19

• The primary difference in tort law between an intentional tort and negligence is that an intentional tort occurs when someone acts on purpose, while negligence happens when someone isn’t careful enough to fulfill the necessary standard of care.
• In an intentional tort, an actor might not plan all of the damages that occur, but there is the intent behind their actions that result in losses to the injured parties.
• Under certain causes of action, the plaintiff must establish that the defendant intended to cause the plaintiff’s injury. Intent may be established by showing that the defendant desired to cause certain consequences that were the result of his or her act or that the defendant believed certain consequences were certain to result from that act.

Question 20

what does a successful action in negligence require a plantiff to demonstrate?

Answer 20

• that the defendant owed him a duty of care;
• that the defendant’s behavior breached the standard of care;
• that the plaintiff sustained damage;
• that the damage was caused, in fact and in law, by the defendant’s breach

Question 21

How does remoteness impact a courts decision to deny an injured plantiff damages?

Answer 21

Remoteness: Sometimes the connection between a plaintiff’s injury and the defendant’s conduct is too far removed. In these situations, ordering the defendant to pay the plaintiff damages would not be fair because the plaintiff’s injury was not reasonably foreseeable.

Question 22

How does caustation impact a courts decision to deny an injured plantiff damages?

Answer 22

Causation: Even if a plaintiff suffered damages, they still need to prove that the defendant caused those damages. Courts generally apply the “but-for” test: but for the defendant’s conduct, would the plaintiff have suffered the injury? The plaintiff must prove on the balances of probabilities (51% certainty or more) that the defendant caused the loss.

Question 23

How does mitigation impact a courts decision to deny an injured plantiff damages?

Answer 23

Mitigation: Even if the court determines a plaintiff was in the right, and the defendant owes them damages, the plaintiff must mitigate their damages. This means the plaintiff must keep their losses as minimal as possible.

Question 24

what is the defense to negligence?

Answer 24

A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt himself; and in his reckonings he must take into account the possibility of others being careless

Question 25

What is Vicarious or “imputed” liability?

Answer 25

Vicarious liability or “imputed liability” is the tort liability that a person or entity has for the acts or omissions of another. Vicarious liability of a principal can result from the acts of independent agents, partners, contractors, and employees. The most typical example of vicarious liability is in the employer- employee context.

Question 26

what is direct liability?

Answer 26

Direct liability holds the person who committed the wrongful act liable for his or her conduct. In contrast, vicarious liability holds a principal, who did not personally engage in any wrongful conduct, liable for the actions of another who engaged in the wrongful conduct.

Question 27

what is occupiers liability?

Answer 27

An occupier under the OLA is an individual who has control over the property that guests are invited to – this includes home owners, tenants and those who rent venues for special events. As an occupier, you owe a duty to your guests to keep them reasonably safe while they are on your property.

Question 28

What is a Social Host? What does this make you liable for?

Answer 28

• In a 2006 case, Childs v Desormeaux, the Supreme Court of Canada defined social hosts as occupiers who are non-employer and non-commercial hosts.
  So, if you are a host who is not serving alcohol for a profit and is not hosting a work-related function, you are likely a social host.
  The courts have held that social hosts can be held liable for injuries sustained by impaired guests who get involved in motor vehicle collisions while driving home from your party.
• As a social host, you can also be liable for injuries sustained by your guests under the OLA. Pursuant to the Act, occupiers have a duty of care to prevent danger to guests caused by activities on the property including supplying alcohol on the premises. When your guests are intoxicated, as an occupier you can be legally responsible for incidents that occur on your property including falls, fights and guests who choke on their vomit.

Question 29

What does the Occupiers Liability Act Provide that social hosts owe a duty of care to invited guests to prevent visitors from injuries that are reasonably foreseeable?

Answer 29

• making sure that the property where the gathering is located is safe from potential
  hazards;
• either serving the drinks personally or hiring a bartender to make it easier to track
  alcohol consumption;
• refraining from drinking or drink moderately to stay alert to your guests’ behavior;
• serving food at your party as this will quicken the body’s ability to absorb alcohol;
• stopping alcohol from being served an hour before you anticipate your guests
  leaving;
• asking non-drinking friends and family to help monitor your guests’ alcohol
  consumption throughout the party; and
• refraining from planning potentially dangerous activities at your party (such as
  swimming).