Midterm Review Flashcards
Define Tort
A wrongful act or an infringement of a right
What is Tort derived from and what does it mean?
Derived from the French word “wrong”
Pigeon Hole - “cause of action”
List the parts of the Torts Law
Unintentional torts
Negligence
Improper
Pigeon hole
What are the intentional torts?
- Assault and battery
- Trespass
- False Imprisonment
- Defamation
- Nuisance
- Economic Torts
- Negligence
Define assault and battery
Assault: Threat of violence to the person
i.e. pointing an unloaded gun at someone
Battery: The physical contact or harm without the person’s consent
Proof and damages of assault and battery
Proof: Easy to prove
More likely than not, the person engaged in an unwelcome action
Damages: Lost income from missing work as a result of the incident
What are the 2 ways trespass can occur?
- A person enters on to someone’s land without consent or lawful right
- A person puts something on someone else’s property without consent
Proof and damages of trespass?
Proof: Easy to prove
Damages: Difficult to prove damages
Businesses outlook on trespass
Businesses have an open door invitation to customers, but they have the right to ask you to leave and can eventually file for a trespass notice
Define the tort of trespass?
Unlawfully restraining a person
Physically restraining or leaving someone with the impression that they can’t leave
Define defamation
The action of damaging the good reputation of someone
Occurs when you say or write something about someone that causes damage to their reputation
What are the 2 forms of defamation
- Libel (written)
2. Slander (oral)
What are the rules of defamation
- The thing that was said had to have been spoken by a third party
- Have to be able to prove that the person said something about them
What are the defences to defamation
- Absolute Privilege (privilege)
House of commons - have complete immunity from defamation - Quality Privilege
If someone says something about a movie in a review, it’s not necessarily defamation - Truth
The thing that was said about the person could be proven to be true
Proofs of defamation
Things to prove:
Harm/damage
Easy to prove harm/damage if the person has a good reputation
Difficult to prove harm/damage if the person is already held in a low regard
Define the tort of nuisance and provide an example
A person, thing or circumstance that causes an inconvenience to you and your property
Example:
excessive noise, terrible odours, obstruction of view, car blocking your driveway
Define economic torts
When the terms of an agreement between parties are broken by one party
Created to establish responsibilities and expectations of parties that choose to engage in business transactions with one another
Explain the types of economic torts
- Intentional interference with contractual relationship
A party does something that has a negative affect on the relationship between 2 other parties - In breach of contract
A party incentivizes another to stop doing business with another party - Conversion
- Passing off
When someone fully capitalizes on the goodwill of another company
Define negligence (torts)
Failure to use reasonable care, resulting in damage or injury to another
First form of negligence
- Unintentional action
Performed to someone by another person accidentally
Second form of negligence
- Anyone who causes an injury to another person will have to compensate the damages to that person
Test: Could a reasonable person have foreseen that this conduct could have caused harm on the person
Third form of negligence
- The defendant breached the standard of care
Test: What would a reasonably careful person have done in those circumstances
Fourth form of negligence
- The defendant has to have caused the plaintiffs injury
Test: Causation
Defendant’s carelessness is not the only thing that contributed to the plaintiffs injury
Causation Disputes
- Think skull rule
- respective foreseeability
- Voluntary assumption of risk
- Contributory Negligence
- Remoteness
Explain the thin skull rule
The victim may be predisposed to a condition that makes them more susceptible to injuries
Defendant is still responsible for damages
Explain the respective foreseeability dispute
Some accident could not have been foreseeable
Consequences could not have been predicted
Explain the voluntary assumption of risk dispute
The victim engages in a dangerous activity because of the type of activity it is
i.e. skydiving
Victim might have to sign a waiver before doing the activity
Difficult for the victim to claim negligence
Explain the contributory negligence dispute
Both the defendant and victim are responsible for damages
i.e. a driver hit another car but the other driver wasn’t wearing a seatbelt so the injuries were much more severe
Court might say one party is responsible for 75% and other party is responsible for 25% of damages
Explain the remoteness dispute
The loss must flow naturally from the breach
If there are too many negligent events that occurred, it’s too hard to determine who is responsible
Define Occupier’s Liability
You know people are coming to your property so you know you owe them a duty of care
Define Professional Liability
The law of negligence in the context of professionals
Components of professional liability
1. Contract Have to provide the service If it's breach you could get sued 2. Duty of negligent law 3. Fiduciary duty A special relationship with someone
Define the Law of Negligence
Duty of care a professional owes to their clients
Errors and Omissions
A professional can get error and omissions insurance to protect themselves
i.e. a doctor forgets to tell the patient about a side effect of the surgery (omission)
Regulatory Body
Code of conduct for professionals
A framework that a professional has to follow
Types of Damages
- Special Damages
- General Damages
- Punitive Damages
- Injunction (rare)
- Vicarious Liability
Special Damages
Meant to compensate for their out of pocket loss
i.e. medical expenses caused by someone else
General Damages
Difficult to quantify
Judge how much the plaintiff should be compensated
Punitive Damages
The court feels that the defendant has to pay more than they have with general/special damages
Inunction
The court orders someone to do or to refrain from doing something
Vicarious Liability
When the employer is responsible for the person
i.e. a driver is riving a FedEx truck, the employer is responsible for his actions
Contracts
A legally enforceable promise
Provide for commercial certainty and property rights
Types of promises
- Legally enforceable
2. Not legally enforceable
Tree elements of a contract
- Offer
- Acceptance
- Consideratoion
Rules when making an offer
- Has to be knowledge of the offer
- The idea of lapsing an offer
- Revoking an offer
- A counter offer means you are revoking/rejecting the offer
Four Way an Offer Can Come to an End
- Offer is accepted
- Offer is rejected
- Offer lapses
- There is a counter offer
Explain Acceptance
Has to be an acceptance between two parties
Has to be communicated
Rules of Acceptance
Post Box Rule
Silence Does not Amount to Acceptance Rule
Types of Contracts
Unilateral Contract
Standard Form Contract
Insurance Contract
Uncertainty of Terms
Explain Unilateral Contract
Acceptance is the same as doing the offer
Completed by a way of action
i.e. lost dog poster example
Explain Standard Form Contract
Terms by the owners that are brought to the attention of the person purchasing the tickets
i.e. no alcohol allowed in the vicinity example
Must be bolded or enlarged
Explain Insurance Contract
Government legislates the terms of the contract
Gives ur assurance
Explain Uncertainty of Terms Contract
Contracts have to be voluntary Should be able to identify the key terms of the contract Subject Price Limitations
Define Consideration
Has both parties promising to do something
Has to be something of value for both parties
A thing that can be measured
i.e. money
Types of Promises
Gratuitous Promise Past Consideration Pre existing Duty Contracts Under "Seal" Promissory Estoppel Injurious Reliance Gratuitous Reduction of Debt Quantum Meriut
Explain Gratuitous Promise
A promise made without consideration
Doing something you think is worth it and don’t need something in return
Explain Past Consideration
Deals with the issue of time
i.e. employer bonus example
Explain Pre existing Duty
Some people have an obligation to do something
i.e. firefighter has the obligation of putting out fires
Explain Contracts Under “Seal”
Put a seal on the contract to assure that there is a legal document
Explain Promissory Estoppel
A legal promise that is enforceable by law even if it was made without consideration
i.e. Landlord and tenant example
Explain Injurious Reliance
Try to sue someone when you’ve had a loss due to something they promised you
Explain Gratuitous Reduction of Debt
Someone owed money and the creditor said just pay me the principal and forget about the interest
Rules of Foakes & Beer and how to avoid them
- If we make/start making that payment before the debt was due
Considered good consideration for the new promise - An arrangement applied only to payments of money
Can’t offer cigarettes to reduce money of payment - An arrangement that only exists between the creditor and debtor
Can’t have a third party involved - The creditor may agree to this under writing
If it’s under seal, we know that it’s a form of good consideration - Some legislation enacted in Ontario that helps ou
Explain Quantum Meriut
Equitable principal developed by courts where one party comes along and requires the services of another party and the other party performs those services
If you receive a service from someone, you have to pay something
Court decides on a fair price by getting quotes from experts
General Rule
The court tries to assume that there was an intention to create a legal relationship with offer and acceptance and consideration
Judge might say that there was never an intention there to make a legal relationship
