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SGMA 395 > M2: Tort Law > Flashcards

M2: Tort Law Flashcards

1
Q

Tort

A
  • 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

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2
Q

What are the legal duties underly tort law

A
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3
Q

What is tort law

A

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

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4
Q

Nuance of tort law

A

You need to identify the specific harm causing act that CREATES A RIGHR DOR THE INJURED PARTY TO CAUSE DAMAGES

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5
Q

Tort feaser
joint tort feaspr
concurrent tort feasor

A

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)

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6
Q

What’s the purpose of tort laws 4

A
  • 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!
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7
Q

How to identify a tort

A
  1. Imposes liability based on fault! Looking for LEGALLY blameworthy conduct
  2. Was there a duty of care?
    - Did the actor owe a duty of care to the injured party
  3. 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
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8
Q

Tort vs criminal law

A

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!!!

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9
Q

Tort Law vs contract Law

A

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

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10
Q

Liability
how do they arise

A
  • Legal obligation (not always a debt) that arises due to negligence
  • negligence or breach of contract
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11
Q

2 types of liability

A

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)

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12
Q

example of vicarious liability & why

A
  • employer x employee relationship (employer is legally responsible for employees acts cuz of vicarious liability)

why? cuz common law made it so!

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13
Q

can someone who is filing a tort sue the direct liability and or the vicarious liability?

A

YES ! either

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14
Q

Rationale behind vicarious liability?

A

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
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15
Q

does VL mean that the wrong doer has no liability?

A
  • no just gives someone else to sue!
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16
Q

what can employer do? do they have to deal with VL result?

A

No they can seek Indemnity from workers to escape VL

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17
Q

How are VL relationships established???

A

STATUTES: Ontario’s parental responsibility act (doesn’t apply in AB)

COMMON LAW:

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18
Q

How are VL relationships established???

A

STATUTES: Ontario’s parental responsibility act (doesn’t apply in AB)

COMMON LAW:

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19
Q

Joint & separate liability

A

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

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20
Q

contributory negligence

A

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

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21
Q

Damages

A

Money payable to a person to compensate

goal: compensatory!

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22
Q

4 types of damages x

A

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)

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23
Q

Max amount of general damages the person can be awarded in canada

A

400k

court considers nature & extent of injuries, duration of suffering, overall impact for quality of life

intsngible losses

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24
Q

when are aggravated damages awarded

A

in addition to general or special , this is like for humiliation grief or anything that has additional emotional injury

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25
Q

Punitive damanhe what rule do they break

A

common law rule that damages are for compensation
- when the court sees an overwhelming need for punishment

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26
Q

what is a cause of action

A
  • factual & legal basis of lawsuit/ set of facts that add up to the legal basis for the lawsuit!!
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27
Q

each cause of actions has its own legal test

A

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
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28
Q

3 categories of torts

A
  1. intentional torts: intentionally causing harm!!
  2. negligence: unintentional conduct that falls below standard of care
  3. strict liability: regardless of intent or standard of care, if you do it you’re responsible for the outcome

issue of intent separated them

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29
Q

Types of intentional torts

A
  1. 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
  2. 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.
  3. battery: any physical contact, can occur even if it is unintentional

Assault: threat of battery that is IMMINENT!

  1. false imprisonment: deprivation of freedom without lawful cause. Either keeping someone confined or preventing the person from leaving.
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30
Q

retinue

A

wrongful retention of the goods without denial of the plaintiffs title (basically detaining others chattel)

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31
Q

defence to cicvil battery

A
  1. 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!
  2. consent: express or implied. consent must be genuine.
32
Q

citizens arrest

A

a private person can arrest the person but the obie of proving a crime was committed is on them

33
Q

Defamation

A
  • 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

34
Q

defences against defamation

A
  1. truth (justification) if a statement is true then it’s not defamation
  2. fair comment, if the statement is an opinion then it’s all good as long as it based on facts
  3. absolute privileges: statement said in parliament/legwl are not actionable
  4. 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)
35
Q

can insulting words not be defamatory

A

Yes!

36
Q

Injurious falaehood

A

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

37
Q

inducing breach of contract

A

tort for party to without legal justification to induce another to not perform contract obligation

38
Q

interference with economic relations

A

causing loss by unlawful means; party is not allowed to interfere with another parties method of gaining livelihood/economic interests

39
Q

breach of confidence

A

unauthorized use of private info results in breach of confidence tort

40
Q

BASICALLY THERE ARE TONS OF INTNETIONAL TORTS!! ALL REQUIRE PLAINTIFF TO file civil action

A

all must be proven on balance of probabilities, businesses need to know what torts are likely o occur

41
Q

What is the most widely pledged tort

A

Negligence!

42
Q

hat does tort of negligence do

A

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

43
Q

reasonable care

A

defence! rregardless of harm caused, defendant will not be liable if they take reasonable steps to avoid the damage causing event

44
Q

elements of a cause of action in neglegience

A
  1. did the def owe plain duty of care
  2. def beached standard of care set by the law
  3. did def breach caused plaintiff damages
  4. are damages too remote?? as in the damages are directly related to the actions of def?
45
Q

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

A
  1. 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)

  1. 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?

46
Q

NeighNeighbour test

A
  1. novelty: is this something that is alr established?
  2. reasonably foreseeable: did you know that your actions could damage the plaintiff?
  3. policy consideration: are there any residual policy considerations outside party relations that can negate the value of duty of care????
47
Q

Rescuers duty of care?

A
  • 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!
48
Q

Défenses to negligence

A
  1. voluntary assumption of risk
  2. contributory negligence
  3. illegality
  4. inevitable accident
49
Q

Défenses to negligence

A
  1. voluntary assumption of risk
  2. contributory negligence
  3. illegality
  4. inevitable accident
50
Q

when do defences count

A

after 4 tests have been met!!!

51
Q

total vs partial defence

A

all damages lifted vs some damages lifted

52
Q

voluntary assumption of risk (Total defence)

A

plaintiff chose to do an act that caused negligence, Express consent or implied consent

WAIVERS: common example of express liability

53
Q

Contributory negligence

A

when proven courts apportion responsibility between plaintiff and defendant which can reduce damages

54
Q

Agony of the moment- counter defense to contributory negligence

A

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

55
Q

inevitable accident

A

when an accident is inevitable and not caused by any body’s faults

56
Q

illegality

A

if plaintiff and defendant are involved in illegal activities, law doesn’t recognize duties of care in crime

57
Q

Case study steps:

A
  1. 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

  1. Standard of care
  2. Causatio9n
  3. Weigh the evidence for each element

5.

  1. Analyze the defences
  2. Conclusion: is the defendant liable, are they not,, does it depend?

watch videonn from 21st agvan1

58
Q

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

A
  1. degree of neghbour proximity? YES
  2. good reason not to impose duty of care/reduce duty or damages? NO!

YES + NO = DUTY OF CARE OWED

59
Q

When does voluntary assumption of risk work!

A

Only during the waiver signing commercial environment

60
Q

standard of care for professionals

A

standard of care that is higher than reaosnable person! its just like a reasonable lawyer!!!!!!

20 yrs of experienc vs 1 year doesnt matter

61
Q

in professional context, not every poor decision is negligennce!!!

ERROR OF JUDGEMENT IS NOT NEGLIGENCE!!!

A

if decision is made while complying with an approved practice/with statuatry standard removes liabiltiy from defendant

62
Q

When does viacrious liability come into play?

A

When you have proven the employee to already be liable!

If EMPLOYEE IS NEGLIGENT! ONLY THEN CAN THE EMPLOYER BE VICARIOUSLY NEGLIGENT AS WELL!

63
Q

Purpose of Insurance

A

to reduce cost of loss by spreading risk!

64
Q

goal of insurance, premiums?

A

transfer risk from insured to insurer
-> premiums increase w amount of risk involved

65
Q

insurance agent

A

duty to insurance company, employee for one compamy

66
Q

insurance broker

A

clients are various inaurance companies, sells insurance on their behalf

67
Q

what duty do agents and brokers have to custmer

A

duty of good faith! they will be honest :)

68
Q

Insurance adjuster

A

these are people who investiage and negotiate on behal fo finsurance companies! these ar epeople who come and analyze scope of insurance

69
Q

Liability insurance
-professional LI

A

-> 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)

70
Q

Property insurance

A

basic insurance usually just covers fire, but comprehensive is also available
-coverage shuld correspond to actual value of property

71
Q

How do insurance premiusm rise

A

when people make more claims!

72
Q

business interruption insurance

A

goal: put insurer in the same financial positon as if the interruption has not occured

73
Q

Life insurance (not usper relevant to neglignece)

A

cant lie about things like medical history

74
Q

Subrogation

A

legal right of insurer to purseu a 3rd party that caused loss to insured

ALLOWS INSURER TO RECOVER COSTS FROM PARTY THAT CAUSED LOSS

75
Q

Subrogatino- stepping into shoes
-> how does this keep insurance premiums lower?

A

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).

76
Q
A
77
Q
A

SGMA 395 (11 decks)

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