THE LAW OF TORTS Flashcards
What is a tort?
= a wrongful act done to the property or person of another which is recognized in law
strict liability vs fault based system
strict liability – liability that is imposed based upon causation regardless of fault
fault based system – culpable behaviour
When does strict liability apply (3)?
- nuisance
- the rule from Rylands v. Fletcher
- dog owner’s liability act (ON)
Rylands v. Fletcher
non-natural use of the land and damage caused by accidental escape or unintended consequences
vicarious liability
= strict liability of an employer to compensate for torts committed by an employee during their employment
- the employee is still also liable to the injured party and may be liable to the employer as well
public nuisance
interference with the lawful use of public lands; often quasi-criminal in nature
private nuisance
interference with an occupier’s use and enjoyment of his/her land (playing loud music)
- interference has to be substantial and unreasonable
Intentional torts
- must intend to do the necessary elements of the tort
- harm must be caused
4 elements of Assault
(1) intentionally; (2) uttering a threat (3) that is likely to cause a reasonable apprehension of imminent physical harm; (4) against a person or an identifiable group.
3 elements of Battery
(1) intentionally; (2) applying unlawful force (3) without consent
3 elements of Trespass
1) Intentionally; 2) Entering property; 3) Without consent
- if a trespasser has caused damage to the property, then the landowner can bring an action in court
Intentional Infliction of Mental Distress
- recognizable physical or psychopathological harm must occur
- must have intent to cause harm (doesn’t have to be physical)
(1) The Defendant’s conduct was flagrant and outrageous;
(2) The Defendant’s conduct was calculated to harm the Plaintiff; and
(3) The Defendant’s conduct caused the Plaintiff to suffer a visible and provable
illness.
DSM 5
Medical book that lists all the medically recognized mental condition
To succeed in the claim of intentional infliction of mental distress, you have to show you have developed a DSM 5 condition.
False Imprisonment (3)
(1) Intentional; (2) Total confinement of a person against his or her will; (3) Without lawful justification.
- physical restraint or psychological
- it is not false imprisonment if the police lay charges
4 elements of Malicious Prosecution
(1) unsuccessful charges against the plaintiff (2) initiated by the defendant (3) without reasonable and probable grounds, and (4) with malice or other improper purpose
3 elements of Defamation
1) the material is defamatory; in that it lowers the plaintiff’s reputation in the eyes of a reasonable person
2) the material must refer to the plaintiff
3) the material must be communicated or published to at least one other person
Slander (definition)
spoken defamation
libel
= written defamation
anti-SLAPP laws
you prove that this story was of interest to the public domain, the plaintiff has to prove that this lawsuit has substantial merit
Defense against defamation (5)
- the defendant proves the statements are true
- absolute privilege = complete immunity from liability for defamation (parliamentary debate)
- qualified privilege = immunity from liability for defamation provided a statement was made in good faith (letter of reference)
Only if the reporting (journalism) is done without malice:
4. fair comment = publication of a researched and reasonably held opinion that is honestly believed to be true
5. responsible communication on matters of public interest = a statement that is published in the public interest and is done responsibly
3 defenses associated with intentional torts:
- self-defence: you have the right to defend yourself to a reasonable degree if you believe you are in imminent harm
- defences of legal authority: the spanking law - specific individuals can use reasonable force to correct behaviour (parents, teachers)
- consent: if you consent to activity done towards you, you cannot sue
