Torts Flashcards
Define tort law.
2 main kinds of tort law with the purpose of awarding damages.
What are the 2 main kinds of tort law?
- intentional
- unintentional
What are the 2 main changes in tort law over time?
- Previously: strict liability even if you are not at fault, if you cause harm you have liability.
Now: if you are not at fault, you do not have to pay damages in a lawsuit. Also, you have strict liability even if you are not at fault, but someone gets hurt from inherently dangerous substances of yours. - A change in awarding damages regarding direct and non-direct harm
Now: people can be sued for non-direct damages
What is an example of the 1st change in tort law?
- someone carrying explosives
- WCB (example of strict liability)
What is an example of the 2nd change in tort law?
- Big question is “could a reasonable person be able to prevent such harm”
- how indirect is too indirect?
Explain intentional torts
intentional acts causing proscribed (prohibited) harm. It is common to lead to criminal law. People seek compensation regarding a tort. In the event of criminal law, if the defendant is found not guilty you can still sue.
What are the 3 elements of intentional torts?
- intent
- causation
- proscribed/prohibited harm
Explain the intent element of intentional tort.
- act done deliberately/voluntarily
- intent is the word used to describe the desire to bring about certain consequences (includes battery)
- there in intent where there is motive
Explain causation in intentional torts.
- intent must be to directly cause harm
- relatively easy to establish
Explain proscribed/prohibited harm in intentional torts.
- prohibited behaviour
* laws against the act
What are examples of intentional torts?
- assault
- battery
- trespassing
- defamation
- deceit
- inducing breach of contract
Explain assault as an intentional tort.
- threats harm to another
- threatening to harm someone
- can include sexual assault, beating them up, etc.
Explain battery as an intentional tort.
- unlawful physical contact upon another person
- actually harming them (sexual violations fall under battery too)
- not usual for battery to appear with assault
Explain trespassing as an intentional tort.
- entrance into premises or onto lands, unlawfully
- make entering land unlawful (fence with a sign saying stay away and you still enter) - owner must indicate they don’t want you to enter their property
Explain defamation as an intentional tort.
- written (libel) and verbal (slander) defamation
- where someone broadcasts a statement causing the harm to the reputation of another person
- opinion is not defamation
- broadcasted statement must be in the form of projecting facts
NOTE: it is not slander if you are telling it to that person
Explain deceit as an intentional tort.
- also called fraudulent misrepresentation
- where someone makes a false statement, to a 3rd party, knowing it is false (or not believing it is true) with the intention of misleading the 3rd party and causing them a (financial) loss
Explain inducing breach of contract as an intentional tort.
- intentionally causing one party to breach their contract with another party
What is the defence to defamation?
Prove that what was said was true
What are defences to battery?
- consent (example: contact sports)
- self defence (you only used as much force as REASONABLY necessary)
Explain tort law.
Tort law is compensating for causing harm to someone.
Explain unintentional torts.
- aka negligence
- someone was careless and another suffered bodily harm or damages to property as a result. Either a result of commission or omission.
How is the amount of damages decided in tort law?
- how much money needs to be paid to put the person back into the position they were in before the tort happened
What kind of law is tort law?
mostly judge made, but some is statute law.
First main change in tort (negligence) law over time is….
in the past basis for liability was called strict liability
now: basis for determining liability is called fault
What are the elements of unintentional (negligence) law?
- commission
- omission
Explain commission in unintentional tort law.
careless with what they were doing
example: accidentally broke something while being careless doing something else
Explain omission in unintentional tort law.
careless by FAILING to do something
carelessly does NOT maintain certain safety objects (like railings) - because there is an expectation to properly maintain those railings
What are the 3 elements of unintentional (negligence) tort law (that the plaintiff must prove)?
- duty of care
- breach of the duty of care
- damage caused
Explain duty of care in unintentional (negligence) tort law.
- very first element that must be established
- carrying on an activity the defendant owed the plaintiff a duty of care
did I owe any duty to the plaintiff to be careful?
must sue a reasonably foreseeable plaintiff
Explain breach of the duty of care in negligence.
failed to meet the standard of care.
How careful do I have to be?
example: did a doctor wrong all reasonable tests to meet the standard of care? or did the doctors take all life saving measures before calling time of death
Explain damage caused in unintentional tort law.
- only after the other 2 elements have been established
- legal causation vs causation in fact
- remoteness of damage
- think skull rule
What is legal causation?
- actual legal cause
- you were careless and it caused someone to get hurt
What is causation in fact?
- weak argument
- if you did that then this would have happened
What is remoteness of damage?
- the type of damage is foreseeable by a reasonable person
- if you can’t contemplate that it can happen, why would you do something to prevent it?
What is the thin skull rule?
- it doesn’t matter if they hurt worse than they normally would, you still have to pay for those damages
- you caused the damages, pay for how they get damaged
- even if you can’t foresee the level of damage you inflict, you pay whatever it is
