Class 6: Tort Law

Question 1

The Rt. Hon. B.M. McLachlin, P.C., Chief Justice of Canada

Answer 1

“Tort law is about compensating those who are wrongfully
injured. But even more fundamentally, it is about
recognizing and righting wrongful conduct by one person or
a group of persons that harms others. If tort law becomes
incapable of recognizing important wrongs, and hence
incapable of righting them, victims will be left with a sense
of grievance and the public will be left with a feeling that
justice is not what it should be.”

Question 2

What is a TORT?

Answer 2

Coming from the French word “tort”,
meaning “wrong”, a tort is a civil wrong
done to a person’s body, property or
reputation, whether the wrong was done (or
omitted to be done) intentionally or
otherwise.

Question 3

Types of Torts:
1. Negligence

Answer 3

careless actions causing harm

Question 4

Types of Torts:
2. Intentional Torts

Answer 4

Intentional Torts – intentional actions causing harm

Question 5

Types of Torts:
3. Nuisance

Answer 5

a hybrid

Question 6

4. Fiduciary Duty

Answer 6

utmost good faith, a concern of
professionals

Question 7

Torts: A Quick History

Answer 7

• Arises from medieval English criminal law, as a
  separate system for compensation for victims of
  crimes when the King’s court granted a “writ”.
• Only intentional torts were recognized initially –
  “trespass”.
• In 20th Century – the rise of negligence as the
  most important form of tort action: Donoghue v.
  Stevenson.

Question 8

Purposes of Torts:

Answer 8

• Primarily: COMPENSATION
• Secondarily: Specific and General
  Deterrence – a form of social regulation.
• Maybe: punishment; allocation of loss
  among societal actors

Question 9

Torts Introduction

Answer 9

Liability
In a tort action, the plaintiff wants to prove that the
defendant is liable for the plaintiff’s harm - she
wants to show that the defendant is civilly
responsible for an action causing harm on a
balance of probabilities. This is distinct from
criminal guilt which is proven beyond a
reasonable doubt.
- In a torts case, one looks for fault or liability,
NOT GUILT!

Question 10

Levels of Intention:
* Legal responsibility

Answer 10

– whether civil or
criminal – can arise regardless of the
amount of intention or involvement by the
defendant.

1. Subjective Intention
2. Negligence
3. Strict Liability
4. Absolute Liability
5. Vicarious Liability

Question 11

Levels of Intention:
1. Subjective Intention

Answer 11

• Express intention to do a certain act, or
  recklessness, or implied intention.
• This is the level of intention sought in criminal
  cases, and for intentional torts.
• In general, the law is concerned with the intent
  to perform an act, not its consequences.

Question 12

Levels of Intention
1. Subjective Intention
What is recklessness?

Answer 12

• One is reckless when one commits an act,
  not necessarily wanting to cause specific
  harm, but knowing that some harm will
  result nonetheless.

Question 13

Levels of Intention
2. Negligence

Answer 13

• An act or omission which causes harm,
  which the actor ought to have known
  would result in some harm, even if the
  harm is not intended.
• The harm caused must be reasonably
  foreseeable.

Question 14

Levels of Intention
3. Strict Liability

Answer 14

• An actor is liable (civilly) for an action or
  omission which may be neither negligent
  nor intended to cause harm, but causes
  harm nonetheless.
• Examples of strict liability occur in
  environmental legislation.
• The only defence is “due diligence”.

Question 15

Levels of Intention
4. Absolute Liability

Answer 15

• A strict liability act or omission for which
  there is no defence.
• Usually only arises in regulatory offences
  which entail small penalties.

Question 16

Levels of Intention
5. Vicarious Liability

Answer 16

• Responsibility for the harm caused by the
  act or omission of another actor, such as
  an employee or agent, for whose actions
  one is legally responsible.

Question 17

DUTY OF CARE

Answer 17

– At the first stage of the “ANNS TEST”, the question is whether
the circumstances disclose “REASONABLY FORSEEABLE
HARM” and “PROXIMITY” sufficient to establish a prima
facie duty of care. The focus at this stage is on factors arising
from the relationship between the Plaintiff and the Defendant,
including broad considerations of policy. The starting point
for this analysis is to determine whether there are analogous
categories of cases in which proximity has previously been
recognized. If no such cases exist, the question then becomes
whether a new duty of care should be recognized in the
circumstances. Mere foreseeability is not enough to establish
a prima facie duty of care. The Plaintiff must also show
proximity – that the Defendant was in a close and direct
relationship to him or her such that it is just to impose a duty
of care in the circumstances. Factors giving rise to proximity
must be grounded in the governing statute when there is one.

Question 18

DUTY OF CARE

Answer 18

– “PUBLIC POLICY CONSIDERATIONS” - If the Plaintiff
is successful at the first stage of the Anns test such that a
prima facie duty of care has been established (despite the
fact that the proposed duty does not fall within an already
recognized category of recovery), the second stage of the
Anns test must be addressed. That question is whether
there exists residual policy considerations which justify
denying liability. Residual policy considerations include,
among other things, the effect of recognizing that duty of
care on other legal obligations, its impact on the legal
system and, in a less precise but important consideration,
the effect of imposing liability on society in general.