The Law Of Torts - mod 12

Question 1

What is a tort?

Answer 1

• A tort is a civil wrong for which a plaintiff sues a defendant to obtain damages
• civil wrong = A private wrong between two private parties
• tort = wrong or fault by one or more parties
• plaintiff = brings the claim
• defendant = alleged wrongdoer

Question 2

Tort law vs criminal law

Answer 2

• tort action brought by plaintiff vs criminal brought by crown
• tort seeks to redress a private matter
• tort goal is monetary compensation (damages) vs seeking to impose a sentence
• tort defendant may be found liable vs where an accused can be found guilty
• tort has a lower burden of proof - the balance of probabilities vs beyond a reasonable doubt
• ex. One act can give rise to a criminal prosecution and a tort claim (but separate matters)

Question 3

Tort law vs contract law

Answer 3

• contract law involves prior agreement between parties, with mutual obligations
• tort actions often involve strangers
• tortious obligations are imposed by law
• damages serve different purposes (contract law = damages serve to put the parties in the position they would have been if the contact was fulfilled, tort = damages put the parties in they position they would have been if the tort had not occurred)

Question 4

Goal of tort law - why do people sue?

Answer 4

• compensation
• deterrence
• vindication
• punishment

Question 5

What is the main aim of tort law?

Answer 5

• to compensate plaintiffs for legal wrongs and injuries caused by defendants
• barriers: fault requirements (cannot be an accident), expense of litigation, defendant may not have money, embarrassment, insufficient evidence, disruptive of relationships

Question 6

Deterrence

Answer 6

• tort law aims to deter defendants from engaging in the same behaviour again
• depends on swiftness, certainty and severity of penalty
• problem: tort law imposes severe penalties, but is neither swift nor certain
• problem: hard to deter negligence (effective in defamation)

Question 7

Punishment

Answer 7

• has declined in importance with growth of criminal law system
• possibility of punitive damages
• suggests some moral blameworthiness
• defendant is typically not the one to feel the brunt of punishment (ineffective as a punishment because damages paid by insurance)

Question 8

Vindication

Answer 8

• historically important with respect to property
• nominal damages may still be available, but are rarely worth pursuing
• may have some value in defamation where plaintiff wants to clear name and declare defamatory statements were false

Question 9

Basis for imposing liability in tort law:

Answer 9

• Intentional torts
• negligence
• strict liability
• absolute liability

Question 10

Intentional torts

Answer 10

Burden of proof - The plaintiff has burden of proving the elements of a tort on a balance of probabilities (more likely than not)
- includes battery, assault, conditional threats, false imprisonment

Question 11

Battery

Answer 11

• intentional causing harmful or offensive contact with another person
• protects physical integrity (right to choose when and how people touch you)
• harmful contact: punching, slapping, kicking, striking with implements
• offensive contact: spitting, kissing, poking, cutting hair
• also includes non-consensual medical treatment (doctor ignores DNR), sexual contact
• plaintiff has burden of showing harmful or offensive contact
• burden then shifts to defendant to prove that contact was consensual
• consent may be implied in some circumstances (i.e. holding out arm for flu shot, handshake - socially excepted practices, and participation in contact sports)

Question 12

Assault

Answer 12

• The creation of a reasonable apprehension of imminent physical contact
• e.g. approaching someone with fists raised (assault)
• often a prelude to battery (actually hit you - battery)

Question 13

Conditional threats

Answer 13

• generally not assaults
• e.g. “if you weren’t such a nice person , I’d smack you right now”
• may be assault if the defendant has the apparent intent and ability to cause imminent physical contact
• Holcombe v Whitaker

Question 14

False imprisonment

Answer 14

1. Intentionally bringing about total restraint of a plaintiffs movement
2. Barriers can be physical or psychological (psychological pressure)
   - Campbell v Kresge
3. Once plaintiff establishes total restraint, defendant may prove legal authority

Question 15

Defences to intentional torts

Answer 15

• consent
• self defence
• defence of third parties
• legal authority
• defence of property

Question 16

Consent

Answer 16

• defendant is not liable if plaintiff consented to alleged actions
• can be express or implied
• extends to risks normally inherent in the act (ex. Fist fight - agree to being punched, but not contesting to being hit with a knife or bat)

Question 17

Consent in contact sports

Answer 17

• includes contact that is legal in the sport
• May include rule infractions that are common in the sport
• does not extend to violent conduct that is outside the normal scope of the sport

Question 18

Factors negating consent

Answer 18

• mistake: The fact that the plaintiffs consent was induced by a mistaken belief will vitiate the consent only if the defendant was responsible for creating a plaintiffs mistaken belief
• fraud: The fact that the plaintiffs consent was based on a fraudulently induced belief will not necessarily vitiate the consent. First, it must be established that the defendant was either responsible for creating, or was aware of, the plaintiffs missapprehension. Second, the fraud must go to the nature or risks of the act giving rise to the tort, as opposed to a collateral matter (collateral matters will not vitiate consent, ex. Lying about marital status, pretending to be someone famous, or STIs unless they are severe)

Question 19

Factors vitiating consent: public policy

Answer 19

• mismatched opponents to consensual fights
• consent to serious bodily harm (cannot consent to death)
• exploitation of abuse of trust
• blood sports

Question 20

Self defence requirements

Answer 20

• honest and reasonable belief that harmful contact is imminent
• reasonable force
• cannot be used once danger has passed
• same requirements where defending third parties

Question 21

Elements of Negligence (plaintiff must establish)

Answer 21

• duty of care
• breach of standard of care (carelessness)
• causation of harm to plaintiff
• remoteness of damages
• actual loss (plaintiff must suffer actual loss - physical, economic, property damage, psychological)
• examples: Motor vehicle crashes, defective products, medical malpractice, slip and fall, misrepresentation leading to economic loss

Question 22

Defence for negligence

Answer 22

• The court must consider whether the plaintiffs own contact should be taken into account to reduce or eliminate his or her claim
• three major defences are contributory negligence, voluntary assumption of risk, and participation in a criminal activity

Question 23

The duty of care: modern test in Canada - cooper v Hobart

Answer 23

• The duty of care must be owed to be liable in any negligence claim
• two stage test: first, the plaintiff must establish that the harm to him or her was reasonably foreseeable, and that the plaintiff and defendant were in a relationship of proximity (if established a prima facie duty of care will arise). Second, the court considers whether there are residual policy considerations that might cause the court to negate the prima facie duty
• these considerations concern matters beyond the two parties to the litigation, such as whether the proposed duty of care will interfere with other legal obligations, have negative affects on the behaviour of similar parties, interfere with the exercise of government policy, or give rise to indeterminate liability

Question 24

The neighbour principle

Answer 24

Lord atkin in donoghue v Stevenson
- you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor. Who, then, in law is my neighbour? the answer seems to be - persons who are so closely and directly affected by my act that I ought to have them in contemplation as so affected when I am directing my mind to the acts or omissions which are called in question

Question 25

The duty to render and rescue aid

Answer 25

• no general common law duty to rescue and render aid no matter how obvious or serious the situation, or how effortless it would be to assist
• exceptions: special relationships between the parties (parent/child, employer/ employee), where defendant prevent others from assisting the plaintiff (Zelenko), where defendant worsens the plaintiff situation, where the defendant induces reliance (plaintiff indicates they are a lifeguard)

Question 26

The duty to control and protect

Answer 26

• where the defendant places plaintiff in a dangerous situation (Crocker)
• Where defendants role is aimed at protecting those in the plaintiffs position (e.g. child welfare authorities)
• where defendants role is to protect people from a dangerous person (e.g. prison or parole authorities)

Question 27

A manufacturers and suppliers duty to warn

Answer 27

• in Canada, manufacturers and suppliers have a broad common law duty to warn consumers of the risks inherent and using their products
  1. Manufacturers must warn of risks of which they know or ought to know
  2. Increasingly, the courts require manufacturers to be experts in their field and undertake research or at least keep current with the existing scientific, academic and industry literature
  3. Suppliers are not expected to have the same knowledge level of expertise as manufacturers, but are expected to have greater knowledge of the consumers level of understanding
  4. The duty to warn is ongoing
  5. Manufacturers not need to warn of risks which are obvious or well-known
  6. The warning must be sufficiently specific and detailed to alert the consumer to the known and foreseeable risks of use
  7. Generally, manufacturers need only to warn consumers of the risks involved in the foreseeable use of products
  8. The duty to warn is specific to the primary users of the product
  9. A manufacturer may be able to discharge its duty to warn by appropriately labelling the product or by providing cautions and instructions in printed material accompanying the product, so long as the accompanying warning is brought to the consumers attention
  10. Manufactures of pharmaceutical products or medical devices are required to meet a rigourous standard of disclosure
  11. In certain limited circumstances, a manufacturer may discharge its duty to inform consumers by adequately disclosing the risks to a learned intermediary

Question 28

Manufacturers duty to warn - McDonald’s hot coffee case

Answer 28

• their coffee was way too hot before the case even happened McDonald’s was serving coffee up to 190°
• The plaintiff was in her parked car holding the coffee and it spilled on her legs causing third-degree burn and she almost died
• McDonald’s only offered her $800 so she went to court because 700 other people had been burned
• she settled for $600,000

Question 29

Duties owed to the unborn

Answer 29

There are four categories of duties owed to the unborn:

• preconception wrongs: occur when a defendant carelessly causes a parent to suffer an injury that detrimentally affects a subsequently conceived child (ex. A mother or father may have been exposed to hazardous chemicals that cause injury to her ova or his sperm)
• wrongful birth and wrongful life: claims arise when a physician fails to inform a woman that she faces unusually high risk of giving birth to a disabled child
• wrongful pregnancy: A claim for wrongful pregnancy arises when a doctor negligently fails to successfully perform an abortion or sterilization procedure
• pre-natal injuries: The most significant in terms of frequency of claims, a child who is born alive will have a claim for prenatal injuries suffered in utero as a result of the defendants negligence (but cannot be brought against mother)

Question 30

The standard of care

Answer 30

• plaintiff must prove the defendant fell below the standard of care that was expected by a reasonable person in the circumstances
• the defendant may be held to a lower standard due to physical or mental disability, or a higher standard if they have specialized training

Question 31

The reasonable person test: arland v Taylor

Answer 31

• not perfect or superhuman
• neither risk adverse or reckless
• sets baseline of conduct we can all except of each other
• still left to the judge to decide what, in the circumstances of the particular case, the reasonable man would have had in contemplation, and what, the party sought to be made liable ought to have foreseen

Question 32

Factors in determining the standard of care

Answer 32

• probability of injury
• severity of injury
• cost of avoiding the risk
• social utility of defendant’s conduct (i.e. firefighters)