Module 4: Tort Law

Question 1

Tort Law

Answer 1

Tort is defined as a wrongful act that results in injury to another’s person, property,or reputation, and for which that person is entitled to some kind of compensation. Tort takes place outside of a contract; in other words, the injury to a person, property or reputation cannot be as a result of a breach of contract.

Question 2

What is the purpose of Tort Law?

Answer 2

It is to determining if wrong has occurred against a person and if wrong has occurred what the compensation to that person should be. It is very important to note that the primary purpose of tort law is to compensate victims of tort, not to punish those responsible for the actions.

Question 3

Fault

Answer 3

a person, company or organization is deemed to be responsible for an error or defect of judgment or of conduct.

Question 4

Burden of Proof

Answer 4

This is the requirement to prove a case. In any tort action, the burden of proof is on the plaintiff to demonstrate that the defendant is liable. The burden of proof is NOT on the defendant to prove he or she is NOT liable. Unlike a criminal case, a tort case does not have to be proven beyond a reasonable doubt. It must be proven on the balance of probabilities by showing that the version of the facts is most probable and therefore most acceptable to the court.

Question 5

Res ipsa loquitur

Answer 5

which translates “the facts speak for themselves.”

Question 6

Volenti non fit injuria

Answer 6

This is a term that means the voluntary assumption of risk. It is sometimes used as a defence or partial defence in a tort action. It arises from a situation where a party voluntarily puts themselves in a hazardous situation.

Question 7

What does Tort Law impose on people? And what is it used to determine?

Answer 7

Tort law imposes duties and rights on individuals in society with respect to their conduct; it is used to determine appropriate compensation in the event that one individual injures another individual in some way.

Question 8

What does Criminal Law impose on people?

Answer 8

Criminal law imposes duties and rights on individuals in society with respect to their conduct; however, criminal law puts the state against an individual or party, rather than two individuals against each other.

Question 9

What does Contract Law impose on people?

Answer 9

Contract law governs how a contract is acted upon and fulfilled. When two parties enter into a contract, they undertake legal obligations towards each other and no one else with respect to the contract.

Question 10

Privity of contract

Answer 10

Only the persons who are party to the contract have any rights or obligations under the contract; they can sue each other for breach of contract but cannot take action against anyone not mentioned in the contract.

Question 11

What are the two types of categories of Tort?

Answer 11

intentional and unintentional. An example of intentional is: to assault a person.
An example of unintentional is: Negligence.

Question 12

List the 7 types of Intentional Tort’s.

Answer 12

1) Nuisance.
2) Trespass to land.
3) Trespass to chattel.
4) Defamation.
5) Deceit.
6) False imprisonment.
7) Assault and battery.

Question 13

List the 5 types of unintentional Tort’s.

Answer 13

1) Negligence.
2) Negligent misrepresentation.
3) Product liability.
4) Occupiers liability.
5) Professional liability.

Question 14

Chattel

Answer 14

a legal term referring to personal belongings or property that can be moved, in other words, property that is not land or a building.

Question 15

Trespass to chattels

Answer 15

when personal property is touched for no reason, whether it is damaged or not. For example, if someone slashes your car tires, this is trespass to chattels.

Question 16

Detinue

Answer 16

when personal property is taken without permission. For example, if a teenager takes his or her parents’ car without permission.

Question 17

Conversion

Answer 17

when personal property is given with permission for a specific purpose and on the understanding that it will be returned, and then it is used for a different purpose and/or not returned. For example, if a customer leaves a car with a mechanic to be fixed, and the mechanic uses the car to go on a short road trip, this is conversion.

Question 18

Defamation

Answer 18

the making of a statement that unjustly damages someone’s reputation. There are two types of defamation, libel and slander.

Question 19

Libel Defamation

Answer 19

If the defamatory statements are put forward in a permanent format (writing, video), the tort is referred to as libel.

Question 20

Slander Defamation

Answer 20

If the defamatory statements are put forward verbally and not captured permanently, the tort is referred to as slander.

Question 21

Absolute privilege

Answer 21

allows statements to be made in certain contexts without fear of a defamation suit. Typical examples of absolute privilege contexts are the Parliament of Canada, provincial legislatures, law courts and inquests, before royal commissions and between high officers of state.

Question 22

Qualified privilege

Answer 22

arises in situations such as a supervisor giving a report to management regarding an employee’s performance or the giving of a job reference to another party. An honest appraisal is requested and expected. The basis for this privilege is that who ever makes these statements must do so without malice and with an honest belief in their truth(even if it turns out to be untrue at a later date).

Question 23

Deceit

Answer 23

is issuing false statements with the intent to mislead a party into taking a particular action. For a tort of deceit to be successful, the plaintiff must prove that: The defendant made a false statement, knowing it to be false or without believing it to be true, with the intention that the plaintiff would act on it

Question 24

False imprisonment

Answer 24

the unlawful restraint of another party against his or her will. It can occur by physical restraint or by use of authority or intimidation. The physical restraint may take place in a confined area such as a closed room or in a situation where the person cannot escape without risking injury to himself or herself. False imprisonment may also occur when one party either through their authority (e.g. that of a policeman), or by threat, unjustly dictates that the other party submit to their will and either remain where they are or move to another location.

Question 25

Assault

Answer 25

conduct which makes the other party think that they are about to be attacked or feel the threat of an attack.

Question 26

Battery

Answer 26

occurs when the attack takes place. The physical contact does not have to harm the plaintiff and in certain cases, such contact may be considered to be quite light.

Question 27

Duty of Care

Answer 27

legal obligation that one individual or party has towards another to adhere to a certain standard when performing any act that may harm the other individual or party. Person has a duty of care towards another where it is reasonably foreseeable that his or her failure to take care might cause that person harm.

Question 28

Negligent misrepresentation

Answer 28

a false statement or conduct which induces another party to enter into a contract. Misrepresentation occurs before a contract is in place, since it persuades one of the parties to enter into it and the misrepresentation rarely comes from the contract documents themselves.

Question 29

Product liability

Answer 29

covers matters arising from negligence in the design, production and sale of goods or products. Product liability is therefore of most relevance to those in the manufacturing sector.

Question 30

Occupier’s liability

Answer 30

puts forth that the occupier of a property owes a duty of care to anyone who enters onto the property and should make reasonable efforts to ensure that the party entering is kept safe.

Question 31

Professional Liability

Answer 31

When dealing with a client, a professional is bound by contractual obligations. The contract lays out what is expected, in what form, by when, and the financial consideration. Breaches of a contract are covered under contract law.

Question 32

Strict liability

Answer 32

is a liability in which there is no need to prove intent, negligence or fault, as long as it is proven that it was the defendant who caused the damage. Strict liability is now used sparingly and is generally limited to subject matter concerning the storage of dangerous materials or materials that become dangerous when stored.

Question 33

Vicarious liability

Answer 33

is a liability that occurs when a person is held responsible for the tort of another even though the person being held responsible may not have done anything wrong. Vicarious liability often ensues with employers who are held vicariously liable for the damages caused by their employees while working.

Question 34

Contributory negligence

Answer 34

recognition that the plaintiff might have contributed to the injuries he or she suffered along with the defendant. The two parties, the plaintiff and the defendant, might have different degrees of negligence but they both had a hand in the injurious outcome that the plaintiff suffered. The courts have struggled with what to do in these situations.

Question 35

tortfeasor

Answer 35

is a party who committed a tort, in other words the tortfeasor is the defendant who is found liable for the tort.

Question 36

Joint tortfeasors

Answer 36

two or more parties who together committed a tort.

Question 37

Concurrent tortfeasors

Answer 37

parties whose independent acts both resulted in the injury to the plaintiff; concurrent tortfeasors did not discuss anything or in any way act together, but jointly their actions resulted in the injury. As a very simple example, if two engineering technologists who don’t know each other and who work at different organizations designed two completely different objects, which the plaintiff then used at the same time and which resulted in injury to the plaintiff, then these two engineering technologists would be concurrent joint tortfeasors.

Question 38

Joint and several liability

Answer 38

states that any joint tortfeasor in an action is wholly liable for all of the damages. This means that even if a defendant is found to be only 1% at fault, that defendant may have to pay all of the damages, especially if the other defendant does not have the finances to cover the amount awarded.

Question 39

Deeppocket defendants

Answer 39

A defendant who does have financial resources,such as a municipality or a Fortune 500 firm.

Question 40

General damages

Answer 40

the term used to describe an amount of money awarded to the plaintiff for the pain and suffering that resulted from the actions of the defendant.

Question 41

Punitive or exemplary damages

Answer 41

are used to deter the defendant and others from doing the same action again.

Question 42

duty to mitigate

Answer 42

comes into the judge’s decision on the amount of damages to award. A duty to mitigate means that the plaintiff has a responsibility to lessen the impact of the injury. For example, if a plaintiff suffered a back injury, it is the plaintiff’s responsibility to seek and accept medical assistance to heal the back injury as much as possible.

Question 43

Risk management

Answer 43

means reducing a business or professional's exposure to unfavourable, uncertain or unknown conditions. Risk management requires an increased awareness of factors which might affect the overall implementation of a project or task.

Question 44

exclusion clause

Answer 44

in a contract stipulates in detail the situations to which information provided by a professional or business is NOT to be applied. In other words, under an exclusion clause the information provided can be used for one thing but not another.

Question 45

Risk allocation

Answer 45

is another way to manage risk, particularly in large construction projects. Risk allocation is the determination before a project starts of which parties will assume which percentages or types of risk in the project.