Torts Flashcards
Tort
Is a civil wrong other than a breach of contract that the courts will redress via monetary damages
Initiated by the plaintiff to recover damages from wrongdoers
Doesn’t depend on an existing contractual/personal relationship between parties
Bases for imposing liability in tort law (4)
Intentional torts = based on defendant’s intention to interfere with plaintiff
Negligence = based on defendant’s carelessness or unintentional wrongdoing
Strict liability = arises when there is no intent/negligence, but there are still defenses available
Absolute liability = arises because defendant did the act that caused harm to the plaintiff
Tort vs criminal law (5)
Plaintiff initiatives civil proceedings for private wrong vs crown initiates criminal charges for public offense
Goal is monetary compensation for plaintiff vs goal is jail time or damages
Defendant can be liable vs defendant can be guilty
Burden of proof is on balance of probabilities vs beyond a reasonable doubt
Plaintiff controls claim/case vs plaintiff is a witness in a criminal charge
Tort law vs contract law (3)
Both tort and contract law result in a civil case initiated by private citizen to obtain damages
Tortious obligations are imposed by law and may be between strangers vs contractual obligations imposed by existing agreement between parties
Purpose of damages is to get parties to a past position as if the tort hadn’t happened vs purpose of damages to get parties to future position as if contract had been fulfilled
Goals of tort law (4)
Monetary compensation
Deterrence (hard to deter negligence, easer to deter defamation)
Punishment (rarely awarded because it suggests moral blameworthiness)
Vindication (historically used wrt property, used in defamation cases)
Barriers to monetary compensation (6)
Fault requirement Expense of litigation Defendant is unable to pay compensation Embarrassment Insufficient evidence Disruption of relations
History of tort law
Evolved from writ system where plaintiffs could bring standardized pleadings to the court that defendant had committed unlawful act
Became distinct branch of law by end of 19th century
Battery
Intentional tort, bringing about harmful or socially offensive conduct to another person
Also includes beneficial contact such as non consensual medical treatment
Damages will be higher if the act is degrading
Courts have recognized that certain socially acceptable practices don’t create liability
Bettel v Yim
About: battery
Defendant grabbed plaintiff (who damaged their store) and shook him, plaintiff suffered accidental injuries that defendant didn’t intend
Test for determining liability in intentional torts is whether defendant is guilty of deliberate/unlawful violence/threat
Person who commits a battery is liable for all consequences that result from it, even if they didn’t intend it
Assault
Intentional tort, creation in the mind of another of a reasonable apprehension of imminent physical contact
Doesn’t include future or conditional threats
Liability arises as long as defendant has apparent intent and ability
Must determine whether plaintiff reasonably believed they were about to be touched
Holcombe v Whitaker
About: assault
Defendant threatened to kill plaintiff if she divorced him and banged on her apartment door
Defendant argued that the threat was conditional
Court held that show of force combined with unlawful demand is assault
False imprisonment
Intentional tort
Bringing about of total restraint of movement
Liability arises even if plaintiff was unaware of the restraint or suffered no harm
Restraint may be physical, by threat of force, or by assertion of legal authority
Campbell v SS Kresge Co
Plaintiff asked by security officer to discuss shoplifting allegations in back room
Judge held that plaintiff was falsely imprisoned beginning when officer first confronted her because she was obeying out of fear or arrest
Intentional torts (3)
Battery
Assault
False imprisonment
Defenses to intentional torts (3)
Consent
Duress
Self defense or defense of third parties
Consent
Defendant isn’t liable if plaintiff consented to alleged actions
Consent may be given explicitly or implicitly, generally extends to all risks inherent to consented act
Wright v Mclean
About: consent
Young boys throwing mud at each other in a game, one boy accidentally hurt
All parties stopped, showed no malice
Action dismissed
Factors negating defense of consent (3)
Mistake: consent will not be valid if it was induced by a mistaken belief that defendant helped create
- different from if defendant mistakenly thinks there is consent
Fraud: even if plaintiff’s consent was based on fraudulently induced belief, consent may not be negated
- for consent to be negated, the defendant must have participated in plaintiff’s misunderstanding and the fraud must be to the nature of the act
Public policy: Consent may be negated if it would be unfair to allow the defendant to rely upon this defense
R v Cuerrier
About: consent
Judge acquitted defendant for aggravated assault because his lying about not being HIV positive was not wrt the nature of the act
SCC overturned this, held that fraud as to potentially harmful consequences of a sexual act could negate consent even if it wasn’t to the nature of the act
Duress
Threat of immediate physical force
Defense to intentional tort
Lane v Halloway
About: public policy and consent
Defendant wasn’t allowed to use plaintiff’s consent to the fight as defense because it was obvious the elderly plaintiff was no match for him
Norber v Wynrib
About: public policy and consent
Doctor offered to continue addicted patient’s prescription if she had intercourse with him, patient later sued for battery/negligence/breach of fiduciary duty
Inequality between parties is proof of exploitation, which results in legal consent to sexual assault
Self defense and defense of third parties
Defendant must establish that they reasonably believed they would be subject to battery
Amount of force defendant uses must be reasonable and be used while danger is imminent
This defense resolves defendant of all liability
Can use force preemptively if they have reasonable grounds to believe battery is imminent
No right to use force that is likely to cause death or grievous injury unless defendant believes they will be killed or seriously injured
Gambriell v Caparelli
About: self defense
Defendant struck plaintiff with gardening tool to try to stop a fight, court determined defendant’s perception of imminent danger was reasonable and amount of force was justified and now in excess
R v Lavallee
About: self defense
Battered woman shot abusive partner as he was leaving the room after he abused her and threatened to kill her
SCC acquitted defendant on basis of self defense, centred on psychiatrist’s testimony about abusive relationships
Overview of law of negligence
Plaintiff must prove that they have been injured/suffered a loss due to defendant’s carelessness, doesn’t need to be intentional
If a duty to take care exists, then defendant is expected to display this wrt the plaintiff
History of law of negligence
Originated with writ system and actions against apothecaries and innkeepers
In 19th century, fault theory of liability was defined to only be if defendant failed to show standard of care for situation
Donaghue v Stevenson
Neighbour principle: you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour
Elements of a negligence action (6)
Duty of care (determine its existence and extent, which defines scope of liability)
Standard of care and its breach (if not breached then the action is careless, not negligent)
Causation (cause in fact)
Remoteness of damages (limited to foreseeable losses in negligence cases)
Actual loss (must be recoverable)
Defense (consider if plaintiff’s conduct should reduce their claim)
Test to determine duty of care
Plaintiff must establish that harm was reasonably foreseeable, and plaintiff and defendant were in relationship of proximity where prima facie duty of care arises
Court must consider any residual policy considerations that would negate prima facie duty of care
