Intro to Torts and Remedies Flashcards
Liability
legal right enforceable by law and against legal persons by way of court process where court can apply a remedy.
What is required for there to be a liability ? (2)
Rights and Remedy
CMA Tort definition
act or omission in some circumstances, cause an injury to someone or their property. Person performing has no excuse
Purpose of Tort Law…..rather than?
compensate the injured party for loss suffered by tortuous act, rather than punish the wrong doer
Tort law normally does not attempt….
to do more than provide compensation
Plaintiff responsibility with tort case
break down liability in elements and provide evidence/proof
In tort law, the applicable standard of proof is?
Civil matters, what is certainty %
Balance probability
50% + 1 for standard of proof
In criminal law, the applicable standard of proof is?
what is certainty %
Beyond reasonable doubt, 95% certain.
Negligence and when there is a liability
if someone hasn’t acted as a reasonable person and as a consequence someone is hurt -> there is a liability
Intentional
torts caused with intention. Desire to bring about certain consequences from motivation
Is it possible to be sued in two areas? and how would results turn out?
What was a famous case?
It is possible to be sued in both criminal and tort (common law)
the results would be different in terms of remedies
case is OJ Simpson
Four Areas of Common Law
Tort, Contract, Property, Restitution
Objective of Tort law
compensate victims and not engage in punishment
What can’t be used as defences for tort (2), what is all that is required
Insanity, intoxication, as all that is required is intention
How is someone liable with tort
At fault, perpetrated act to cause harm with intent or were negligent.
fault in tort law
blameworthy condition
Intentional Torts
intentional acts prescribing harm; torts caused with intention
What is not intentional tort (3 examples)
Reflexive / self-defence
Automation (not in conscious state)
Somna ambulens: sleep walking
Tort Feasor
one who perpetrates the tort
What courts do Torts follow and why?
criminal court, tort prosecutor allows criminal prosecutor to find all evidence and do most of setting up
Three elements for standard of proof in order and all must be proven for intentional torts
- Intention
- Causation
- Proscribed harm proven
Intention: Intention and Motive definition and requirement for tort law
Intention: bring consequence and more direct as intent to cause harm
Motive: Underlying object, prompting defendant to commit the tort
Intention and Motive must be differentiated.
Courts and Intention with Plaintiff and Defendant
Plaintiff must prove intention of defendant but it is difficult. Court assumes intentional, Plaintiff is truthful, so ownness of proof of innocence on defendant to reverse presumption
Causation
how does this work for courts and their causation responsibilities
operative cause (close in time with intervening acts). Fairly direct cause
courts don’t get involved as why tort occurred, their job is determining certainty and providing remedy
Various types of prescribed harm (5)
- battery (touching)
- assault
- deceit (false assertion of fact with knowledge of its falsity)
- false imprisonment
- intentional infliction of mental suffering
Various types of prescribed harm torts: (Wilkinson case)
as a practical joke, the defendant told the plaintiff told her husband was injured in a car accident and incapacitated for several weeks – damages were awarded
If all elements are proven, Plaintiff is entitled to?
If defendant successful proving defence exists
Compensation to place victim, Plaintiff, in the position for if the tort had not occurred
damages not rewarded and liability excused
Injunction
court order to get the tort feasor to stop with a persisting tort
3 defences for proving defence exists aside from non-intentional etc automation, reflexes/defence, sleep walk
Consent
Defence of legal authority
Self defense with extreme limits
3 defences for proving defence exists - self defence with extreme limits
no other reasonable way of escaping or surviving
3 defences for proving defence exists - consent and example
agree to enter activity ex boxers, but there are provisions
3 defences for proving defence exists - Defence of legal authority and example
individuals charged with responsibilities and can perform acts otherwise as torts e.g., police
Damages (Remedy)
If tort liability, it is compensation for the damages, in form of money, to the victim, put in position if tort never occurred
3 categories of damages (remedies)
Special Damages, General Damages, Punitive Damages
Special Damages and examples
losses calculated with accounting accuracy up until particular date etc loss wages, profit of business
General Damages
losses that cannot be calculated with accounting certainty – there is a
level of conjecture (estimation).
Examples of General Damages and how to calculate
future medical costs, future economic
loss, pain and suffering, cannot arbitrarily assign number, use precedent cases and hire actuaries
trio of cases for general damages
Teno v. Arnold,
Thorton v. The School District #57 Andrews. Grand Toy:
trio of cases: Teno v. Arnold, Thorton v. The School District #57, Andrews. Grand Toy:
what is their purpose
what was original value
what is value with inflation
set the cap/upper limit for pain and suffering is $100K (done to not cripple the economy) now with inflation, it is now $400K
3 reasons why Reward in US higher than Canada
- Juries make tort award in US, in Canada doesn’t exist. Juries more emotional and rational so result in larger sums
- Americans have jurisprudence that allow for higher rewards of punitive damages
- number of cases being much higher than Canada
Punitive (exemplary) Damages
ordered when defendant is guilty of conduct and described as vindictive, aggravated or penal (situation is very bad, deter reckless behaviour)
