M2: Tort Law Flashcards
Tort
- Act or omission that is a violation of a legal duty. Action of damages will follow!
NOT A Breach of contract, breach of trust, or a CRIME
What are the legal duties underly tort law
What is tort law
law of civil wrongs! a wrongful act (that’s not a breach of contract or crime) that results in injury to a person, property, dignity etc
- and the law provides a remedy
SUING SOMEBODYYYYY
Nuance of tort law
You need to identify the specific harm causing act that CREATES A RIGHR DOR THE INJURED PARTY TO CAUSE DAMAGES
Tort feaser
joint tort feaspr
concurrent tort feasor
Someone who has committed a tort
- when a common act by multiple parties causes harm (vicarious liability)
- when multiple acts by indépendant tortfwasoes that have separate acts that lead to one type of damage (one the other or both could be held responsible)
What’s the purpose of tort laws 4
- compensating for victims
- shifting loss from the victim to wrong doer (using money)
- deterrence: not really a purpose of tort law but a practical effect of tort law
- what about punishment: not really a punishment, kind of like remedy! But court could put in punitive damages!
How to identify a tort
- Imposes liability based on fault! Looking for LEGALLY blameworthy conduct
- Was there a duty of care?
- Did the actor owe a duty of care to the injured party - What standard of care was breached?
- Was there a standard of care the actor promised? If they didn’t then there is nothing to sue over
Tort vs criminal law
Tort:
- Private wrong, not a wrong against society
- prosecuted by victim of the wrong
- Onus is balance of probabilities!!!
- Defendant is Liable
- Penalty: pay damages/remedies
- Civil procedural rules apply
Criminal Law:
- wrong against society
- prosecuted by government
- onus of PROOF BEYOND A REASONABLE DOUBT
- Defendant is guilty
- Penalty: jail or criminal fines
- Criminal code procedures
for both statutes and common law apply!!!
Tort Law vs contract Law
Tort:
- parties don’t need a formal relationship
- entire purpose of tort law is to have a backup plan when people who don’t know each other who got hurt (people have duties of care to each other)
- if parties do have a contract between them, then it’s a thing called tortious liability
Contract:
- Parties need a formal relationship
Liability
how do they arise
- Legal obligation (not always a debt) that arises due to negligence
- negligence or breach of contract
2 types of liability
direct liability: arises cuz of one’s own bad actions
vicarious liability: arises cuz of the relation we have with a person who causes harm to someone else (vicariously responsible for someone else breach of standard of care that causes harm to a third party)
example of vicarious liability & why
- employer x employee relationship (employer is legally responsible for employees acts cuz of vicarious liability)
why? cuz common law made it so!
can someone who is filing a tort sue the direct liability and or the vicarious liability?
YES ! either
Rationale behind vicarious liability?
Employer/Employee:
- Control: employer is profiting from employees actions so they should also be responsible!
-Compensation: deeper pockets for employers - Deterrence: Incentivizes employers to create training programs
does VL mean that the wrong doer has no liability?
- no just gives someone else to sue!
what can employer do? do they have to deal with VL result?
No they can seek Indemnity from workers to escape VL
How are VL relationships established???
STATUTES: Ontario’s parental responsibility act (doesn’t apply in AB)
COMMON LAW:
How are VL relationships established???
STATUTES: Ontario’s parental responsibility act (doesn’t apply in AB)
COMMON LAW:
Joint & separate liability
Arises when multiple parties are separately/ or jointly responsible for harm. REGARDLESS OF HOWWW RESPONSIBLE U ARE OF A HARM you can be sued for the total (this is legal)
basically ensures the people who are hurt can recover for damages
a defendant who is made to pay more than their true share of responsibility can sue others for their breach of contract
contributory negligence
if a person is found contributing to their own harm by acting carelessly, they are actually responsible partially for their own injuries
3 ways this can happen:
- plaintiffs own negligence caused harm
- plaintiff has INTENTIONALLY chosen to involve in risky behaviour
- plaintiff has not taken steps to minimize own safety
Damages
Money payable to a person to compensate
goal: compensatory!
4 types of damages x
Général: non pecuniary (non monetary losses) For pain and suffering
spécial: pecuniary (for monetary losses)
aggravated: When defensive conduct is malicious
punitive: when court sees a need to punish the defendant for horrible conduct (rarely awarded)
Max amount of general damages the person can be awarded in canada
400k
court considers nature & extent of injuries, duration of suffering, overall impact for quality of life
intsngible losses
when are aggravated damages awarded
in addition to general or special , this is like for humiliation grief or anything that has additional emotional injury
Punitive damanhe what rule do they break
common law rule that damages are for compensation
- when the court sees an overwhelming need for punishment
what is a cause of action
- factual & legal basis of lawsuit/ set of facts that add up to the legal basis for the lawsuit!!
each cause of actions has its own legal test
do the facts of your claim meet all the elements of the test for negligence/defamation/conversion etc
- each part of the legal test must be proved on a balance of probabilities, failing on any part if failed claim
-tests come from case law
3 categories of torts
- intentional torts: intentionally causing harm!!
- negligence: unintentional conduct that falls below standard of care
- strict liability: regardless of intent or standard of care, if you do it you’re responsible for the outcome
issue of intent separated them
Types of intentional torts
- trespass/ against property rights
- if défendant traverses over the plaintiffs land it’s a tort. courts will only give a little in damages to return property to og state.
- chattel trespass: chattel (is private property) court can award damages in compensation to chattel! ex: vandalism - conversion/ against property rights:
- wrongful taking of personal property with the intent to excise dominion over it. difference between this and trespass is that trespass is less serious but conversion is more serious. tort feasor may have to pay the full amount of chattel. - battery: any physical contact, can occur even if it is unintentional
Assault: threat of battery that is IMMINENT!
- false imprisonment: deprivation of freedom without lawful cause. Either keeping someone confined or preventing the person from leaving.
retinue
wrongful retention of the goods without denial of the plaintiffs title (basically detaining others chattel)
defence to cicvil battery
- self défense: reasonable necessity for self defense and proportion to the facts. self defense not counter attack! and it doesn’t have to be a counter attack!
- consent: express or implied. consent must be genuine.
citizens arrest
a private person can arrest the person but the obie of proving a crime was committed is on them
Defamation
- has elements of a strict liability tort, but we consider its an intentional tort
- laws against lible: written published words, slander: spoken statements
-must prove 3 things:
1. is statement defamatory
2. was it spoken to plaintiff
3. if published, were they communicated to at least one person other than plaintiff
defences against defamation
- truth (justification) if a statement is true then it’s not defamation
- fair comment, if the statement is an opinion then it’s all good as long as it based on facts
- absolute privileges: statement said in parliament/legwl are not actionable
- qualified privilege: where a person communicates with another person and they have a duty or interest to receive it (ex: character reference for a job)
can insulting words not be defamatory
Yes!
Injurious falaehood
protects interest in one’s property, products or business
plaintiff must prove that defendant published false words, motivated by malice, and actual damage should be shown
inducing breach of contract
tort for party to without legal justification to induce another to not perform contract obligation
interference with economic relations
causing loss by unlawful means; party is not allowed to interfere with another parties method of gaining livelihood/economic interests
breach of confidence
unauthorized use of private info results in breach of confidence tort
BASICALLY THERE ARE TONS OF INTNETIONAL TORTS!! ALL REQUIRE PLAINTIFF TO file civil action
all must be proven on balance of probabilities, businesses need to know what torts are likely o occur
What is the most widely pledged tort
Negligence!
hat does tort of negligence do
protect people against risk!
basically negligence is a breach of legal duty to take care, results in recoverable damages
negligent act is conduct that falls below the standard of care
reasonable care
defence! rregardless of harm caused, defendant will not be liable if they take reasonable steps to avoid the damage causing event
elements of a cause of action in neglegience
- did the def owe plain duty of care
- def beached standard of care set by the law
- did def breach caused plaintiff damages
- are damages too remote?? as in the damages are directly related to the actions of def?
steps of negligence analysis
How to do case study:
identify the step, identify the legal test, determine what a reasonable person would do, find case law and use analogical reasoning to support analysis
If there are multiple defendants, analyze one defendant first then next!
explain things as if someone doesnt know the legal tests!!!! as if its so mindblowiingly obvious-> flesh out the facts SO clearly
- duty of care; was there a legal obligation to take reasonable
care during an activity!
: many activities and relations arise a duty of care!
: unsure? Neighbour principle- if someone is our legal neighbour (someone in society who will be hurt by my act if i don’t do them with a duty of care) we must take care of them
2.standard of care: what would a reasonable person with all the facts in the case do in this scenario?? (wwrpd test)
- Causal connection: is there proof that breach of defendant standard of care caused harm to plaintiff? (but for test: okay but besides the breach of standard of care would the plaintiff still been injured!?!)
Damages&foreseeability: did the plaintiff suffer a conpensable loss? were the types of damages suffered foreseeable or remote?
NeighNeighbour test
- novelty: is this something that is alr established?
- reasonably foreseeable: did you know that your actions could damage the plaintiff?
- policy consideration: are there any residual policy considerations outside party relations that can negate the value of duty of care????
Rescuers duty of care?
- negligent wrongdoer is liable to a rescuer for losses and damage suffered during rescuing
- a person negligently placing themself in a dangerous position is liable to rescuer
- rescuers damages can be reduced if they act recklessly!
Défenses to negligence
- voluntary assumption of risk
- contributory negligence
- illegality
- inevitable accident
Défenses to negligence
- voluntary assumption of risk
- contributory negligence
- illegality
- inevitable accident
when do defences count
after 4 tests have been met!!!
total vs partial defence
all damages lifted vs some damages lifted
voluntary assumption of risk (Total defence)
plaintiff chose to do an act that caused negligence, Express consent or implied consent
WAIVERS: common example of express liability
Contributory negligence
when proven courts apportion responsibility between plaintiff and defendant which can reduce damages
Agony of the moment- counter defense to contributory negligence
when someone acts in a moment of panic and does the wrong response, so this is a good counter defense when someone tries to use contributory negligence against plaintiff
inevitable accident
when an accident is inevitable and not caused by any body’s faults
illegality
if plaintiff and defendant are involved in illegal activities, law doesn’t recognize duties of care in crime
Case study steps:
- Are 4 steps of negligence met?
- Duty of care: NEIGHBOUR principle
- Standard of care: WWRPD
- Cause: but for test
- Damage: Causation and remoteness
gather all relevant facts: who (plaintiff defendants third parties) when (must be 2 years from statement of claim) where (alberta»>???) why how (causze of action, legal tests(
DURING THIS ANALYSIS PORTION!! FOCUS ON THE PLAINTIFF ONLY! AFTERWARDS YOU CAN ANALYZE THE DEFENSES AND FOCUS ON DEFENDANT ETC
- Standard of care
- Causatio9n
- Weigh the evidence for each element
5.
- Analyze the defences
- Conclusion: is the defendant liable, are they not,, does it depend?
watch videonn from 21st agvan1
when something does not fall into pre existing category? COOPER ANNS TEST FOR NOVEL SITUATINS!!
to determine if a duty of care is owed
neighbour principle
- degree of neghbour proximity? YES
- good reason not to impose duty of care/reduce duty or damages? NO!
YES + NO = DUTY OF CARE OWED
When does voluntary assumption of risk work!
Only during the waiver signing commercial environment
standard of care for professionals
standard of care that is higher than reaosnable person! its just like a reasonable lawyer!!!!!!
20 yrs of experienc vs 1 year doesnt matter
in professional context, not every poor decision is negligennce!!!
ERROR OF JUDGEMENT IS NOT NEGLIGENCE!!!
if decision is made while complying with an approved practice/with statuatry standard removes liabiltiy from defendant
When does viacrious liability come into play?
When you have proven the employee to already be liable!
If EMPLOYEE IS NEGLIGENT! ONLY THEN CAN THE EMPLOYER BE VICARIOUSLY NEGLIGENT AS WELL!
Purpose of Insurance
to reduce cost of loss by spreading risk!
goal of insurance, premiums?
transfer risk from insured to insurer
-> premiums increase w amount of risk involved
insurance agent
duty to insurance company, employee for one compamy
insurance broker
clients are various inaurance companies, sells insurance on their behalf
what duty do agents and brokers have to custmer
duty of good faith! they will be honest :)
Insurance adjuster
these are people who investiage and negotiate on behal fo finsurance companies! these ar epeople who come and analyze scope of insurance
Liability insurance
-professional LI
-> insurance specifically for negilgence by self/employees
-> applies only when insured is at fault
Professional Liability: protects against negligence (damages resulting from errors and omissions, covers legal costs, but NOT FOR FRAUD)
Property insurance
basic insurance usually just covers fire, but comprehensive is also available
-coverage shuld correspond to actual value of property
How do insurance premiusm rise
when people make more claims!
business interruption insurance
goal: put insurer in the same financial positon as if the interruption has not occured
Life insurance (not usper relevant to neglignece)
cant lie about things like medical history
Subrogation
legal right of insurer to purseu a 3rd party that caused loss to insured
ALLOWS INSURER TO RECOVER COSTS FROM PARTY THAT CAUSED LOSS
Subrogatino- stepping into shoes
-> how does this keep insurance premiums lower?
When insurer pays a claim, they step into the shoes of the insured (take on the loss themself)
Thi sis why they can sue the one who caused loss
Because it benefits policyholders (allows insurer to recover costs).
