Torts

Question 1

Tort

Answer 1

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

Question 2

Bases for imposing liability in tort law (4)

Answer 2

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

Question 3

Tort vs criminal law (5)

Answer 3

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

Question 4

Tort law vs contract law (3)

Answer 4

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

Question 5

Goals of tort law (4)

Answer 5

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)

Question 6

Barriers to monetary compensation (6)

Answer 6

Fault requirement
Expense of litigation
Defendant is unable to pay compensation
Embarrassment
Insufficient evidence
Disruption of relations

Question 7

History of tort law

Answer 7

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

Question 8

Battery

Answer 8

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

Question 9

Bettel v Yim

Answer 9

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

Question 10

Assault

Answer 10

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

Question 11

Holcombe v Whitaker

Answer 11

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

Question 12

False imprisonment

Answer 12

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

Question 13

Campbell v SS Kresge Co

Answer 13

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

Question 14

Intentional torts (3)

Answer 14

Battery
Assault
False imprisonment

Question 15

Defenses to intentional torts (3)

Answer 15

Consent
Duress
Self defense or defense of third parties

Question 16

Consent

Answer 16

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

Question 17

Wright v Mclean

Answer 17

About: consent
Young boys throwing mud at each other in a game, one boy accidentally hurt
All parties stopped, showed no malice
Action dismissed

Question 18

Factors negating defense of consent (3)

Answer 18

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

Question 19

R v Cuerrier

Answer 19

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

Question 20

Duress

Answer 20

Threat of immediate physical force

Defense to intentional tort

Question 21

Lane v Halloway

Answer 21

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

Question 22

Norber v Wynrib

Answer 22

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

Question 23

Self defense and defense of third parties

Answer 23

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

Question 24

Gambriell v Caparelli

Answer 24

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

Question 25

R v Lavallee

Answer 25

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

Question 26

Overview of law of negligence

Answer 26

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

Question 27

History of law of negligence

Answer 27

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

Question 28

Donaghue v Stevenson

Answer 28

Neighbour principle: you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour

Question 29

Elements of a negligence action (6)

Answer 29

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)

Question 30

Test to determine duty of care

Answer 30

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

Question 31

Dobson v Dobson

Answer 31

About: determining duty of care Child sued mother for negligent car accident she caused that led to permanent injuries to child SCC held that while pregnant women and her fetus are separate legal entitees with close enough relationship to warrant prima facie duty of care, as a matter of public policy duty of care should not be imposed on a pregnant women wrt fetus because this affect bodily autonomy rights of women Dissent: pregnant women owes the same duty of care to fetus as to all other users of road

Question 32

Duty to rescue and render aid

Answer 32

Generally, there is no duty for this no matter how serious the situation However, it applies when defendant has - innocently or negligently created the situation - worsened the situation - induced the plaintiff to rely on them, to the plaintiff's detriment - deprived the plaintiff of aid - a special relationship exists between the parties

Question 33

Zelenko v Gimbel Bros

Answer 33

About: duty to rescue and render aid Defendant rendered aid to ill victim in their store and kept victim for 6 hours without any care If defendant undertakes a task of their own volition, they must do what any reasonable person should do to complete that task Court held that defendant was negligent

Question 34

Duty to control and protect

Answer 34

Applies when defendant places plaintiff in dangerous situation, if defendant's role is to protect those in plaintiff's position, or to protect people from dangerous person

Question 35

Crocker v Sundance Northwest Resorts

Answer 35

About: duty to control and protect SCC held resort liable for breaching its duty to take all reasonable steps to prevent plaintiff from participating in dangerous tube racing while intoxicated which had caused him to become a quadriplegic

Question 36

Mustafic v Smith

Answer 36

About: duty to control and protect M was voluntarily admitted to psych ward where doctor did not yet make final diagnosis and gave him a daypass M went home and murdered his children and committed suicide, M's wife sued doctor for negligence but court held that M's conduct wasn't foreseeable

Question 37

CD v Newfoundland

Answer 37

About: duty to control and protect Court held social worker liable for negligence after failing to reasonably monitoring the abusive home of the foster (plaintiff), for taking no action following abuse allegations, and for biased intervention after another allegation

Question 38

Hendrick v De Marsh

Answer 38

About: duty to control and protect Suit was filed too late after incident to be valid Probation offender damaged parole family's home Court recognized that parole officer owed plaintiffs duty of care, which they negligently breached by failing to disclose probation offender's history of arson

Question 39

Manufacturer/supplier's duty to warn

Answer 39

Must warn consumers of risks they themselves know or ought to know Duty to warn is ongoing Don't need to warn about obvious/well known risks unless primary users are young Need only warn of risks associated with foreseeable use or misuse of product Duty to warn can be discharged by manufacturer by diclosing risks to a learned intermediary who will be administering the product

Question 40

Duties owed to the unborn (4) | Losses plaintiff can claim (4)

Answer 40

``` Preconception wrongs: defendant carelessly causes parent to suffer injury that negatively affects subsequently conceived child Wrongful birth (parent's claim) and wrongful life (child's claim): arises when physician fails to inform woman of possibility of birthing disabled child in which she may have terminated pregnancy, wrongful life claim is usually unsuccessful Wrongful pregnancy: doctor negligently fails to successfully perform abortion or sterilization, courts don't usually award damages for child rearing if child is born healthy (but can still award damages for pregnancy/labour) Prenatal injuries: born alive children can claim for prenatal injuries due to defendant's negligence ``` Claimed losses: pain/suffering during pregnancy, parents' burdens of raising unwanted/disabled child, loss of reproductive autonomy, child's suffering for being born with disability

Question 41

Arland v Taylor

Answer 41

About: reasonable person standard of care | Standard of care juries should use as comparison is the care that would have been taken by a reasonable and prudent man

Question 42

Factors in determining standard of care (3)

Answer 42

Court will balance probability of injury (and likely severity of potential injuries) against the social utility of the defendant's conduct and the cost of avoiding the risk

Question 43

Bolton v Stone

Answer 43

About: standard of care, probability of injury Person was injured by a stray cricket ball Test is whether risk of damage to passerby is so small that a reasonable man in cricket field owner's position would have rightfully refrained from mitigating such risks

Question 44

Law estate v Simice

Answer 44

About: standard of care, cost of avoiding risk Judge concluded that doctors should not consider cost factors in making treatment decisions as these constraints work against the patient's best interests Doctor's responsibility to patient trumps responsibility to medicare system

Question 45

Watt v Hertfordshire County Council

Answer 45

About: standard of care, social utility Plaintiff was fireman who was injured by an improperly secured piece of equipment, equipment was improperly secured because it was an emergency situation Court found that the social utility of tending to the emergency outweighed the risk associated with sending out the improperly secured equipment, held that the defendant (employer) didn't breach standard of care

Question 46

Compliance or breach of customary practice

Answer 46

Customary practice = well established approach/process that is widely accepted in the field The party relying on compliance/breach of such practice has burden of proving it exists Compliance provides evidence of reasonable conduct, breach provides evidence of negligent conduct Court can reject customary practice if it is obviously negligent/dangerous

Question 47

Ter Neuzen v Korn

Answer 47

About: customary practice in determining standard of care Plaintiff contracted HIV from artificial insemination procedure, defendant doctor had complied with customary practice at the time Jury rejected this customary practice and held doctor liable for negligence SCC also concluded that in the absence of scientific evidence, jury had no basis to find a practice negligent

Question 48

Professional standards of care

Answer 48

In determining professional standards of care, court must ask how a reasonable professional in the field would have acted

Question 49

White v Turner

Answer 49

About: professional standard of care Court dismissed plaintiff's claim that the plastic surgeon used the wrong breast reduction procedure, and that the doctor didn't follow standard practice However, doctor was found liable for negligence for the speed at which he performed the surgery and failed to tack back skin and address skin tension

Question 50

Young v Bella

Answer 50

About: professional standards of care Professor and university department caused plaintiff's name to be placed on child abuser registry which significantly harmed her professional reputation SCC held that defendants couldn't use statutory defense protecting informants of child abuse because they didn't have reasonable cause to allege child abuse Found that defendants breached standard of care for university professors to respect their students, awarded plaintiff $800k

Question 51

Causation

Answer 51

Have to determine which test of causation to use, then plaintiff must establish that their loss was caused by the defendant's breach of the standard of care

Question 52

Barnett v Chelsea & Kensington Hospital

Answer 52

About: but for test, proving causation Plaintiff's husband fell ill after being poisoned with arsenic, went to hospital but was sent home with no diagnosis, died after Court accepted that hospital owed plaintiff's husband duty of care and standard of care was breached when hospital didn't diagnose him However, under but for test, the victim would have died even if the hospital had met the standard of care so the breach wasn't cause of death and hospital wasn't liable

Question 53

Richard v CNR

Answer 53

About: but for test, proving causation Plaintiff would have unknowingly driven off the ferry without bothering to look at surroundings with or without a rope strung across the end of the boat, ferry company not liable

Question 54

Cook v Lewis

Answer 54

About: modifying the but for test Since plaintiff couldn't prove that one of the two hunters negligently shot him, the burden of proving causation shifted to the hunters (would be held negligent unless they could disprove causation on balance of probabilities)

Question 55

Clements v Clements

Answer 55

About: modifying but for test Plaintiff may succeed in showing that defendant's conduct contributed to loss when the plaintiff has proved that loss would not have occurred but for the negligence of multiple defendants, but is unable to show that a single defendant is responsible

Question 56

Foreseeability test of remoteness

Answer 56

If plaintiff's injury was foreseeable cause of defendant's negligent conduct, then injury will not be too remote in law and will be recoverable for damages

Question 57

Connery v Government of Man

Answer 57

About: foreseeability test of remoteness Defendant negligently polluted plaintiff's wells which damaged his crops, plaintiff claimed damages for finding new water supply, loss of crops, and heart attack from stress Court held that all claims except for heart attack were foreseeable

Question 58

Defenses to negligence (3)

Answer 58

Contributory negligence Voluntary assumption of risk Participation in criminal/immoral acts

Question 59

Contributory negligence

Answer 59

Defendant must prove that plaintiff railed to act in reasonable manner for their own safety, which contributed to their injury Court will apportion liability to reflect relative fault of each party

Question 60

Gagnon v Beaulieu

Answer 60

About: contributory negligence | Plaintiff's failure to wear a seatbelt was negligent and this contributed to his injuries

Question 61

Attorney General v Keller

Answer 61

About: contributory negligence Plaintiff was police officer who was in serious accident while chasing defendant Court noted that plaintiff was enforcing the law and his actions were reasonably necessary to carry out his duty Plaintiff was not found contributorily negligent for his injuries

Question 62

Heeney v Best

Answer 62

About: contributory negligence Defendant negligently cut off power to plaintiff's barns which caused death of chickens, but plaintiff was found contributorily negligent because he failed to turn on the emergency alarm that would have alerted him of the power failure

Question 63

Voluntary assumption of risk

Answer 63

Defendant must prove that plaintiff was aware of the specific risks of the conduct and explicit/implicitly agreed to assume full legal responsibility of these risks If applicable, defendant is absolved of all liability

Question 64

Participation in criminal/immoral acts

Answer 64

Ex turpi causa | Courts will only apply this when failure to do so would bring legal system into disrepute

Question 65

Hall v Hebert

Answer 65

About: ex turpi causa Both defendant and plaintiff were intoxicated when defendant allowed plaintiff to drive his car which resulted in serious injury Court found that since plaintiff was suing defendant for allowing him to drive while drunk for personal loss instead of trying to profit from illegal activity ex turpi causa didn't apply Liability equally apportioned

Question 66

Defamation Necessary elements (3) Damages depend on (3)

Answer 66

Is statement that would tend to lower a person in the eyes of other, spoken (slander) or written (libel) Necessary elements: defamatory material, reference to plaintiff, publication Damages consider totality of defendant's conduct (ex retraction, apology), deterrence factor, punitive damages

Question 67

Hill v Church of Scientology of Toronto

Answer 67

About: defamation Church's lawyer who defamed a crown attorney who formerly prosecuted church during press conference was held liable for $300k, church held liable for $1.6M

Question 68

Defenses for defamation (5)

Answer 68

``` Defense of justification/truth Defense of absolute privilege Defense of qualified privilege Defense of fair comment Defense of responsible communication on matters of public interest ```

Question 69

Defense of justification

Answer 69

Defendant will be absolved of all liability if defamatory statement is true

Question 70

Hakim v Laidlaw Transport

Answer 70

About: defamation, defense of truth Plaintiff bus drive accused of sexual offenses sued school for defamation after it sent out a letter explaining the issue Court held that letter was not defamatory (only said driver was charged) Even if it was defamatory, defendant could raise defense of truth

Question 71

Defense of absolute privilege

Answer 71

Complete defense of statement, regardless of malice or nature Applies to executive government officers, parliamentary proceedings, judicial proceedings, and defamatory letters of complaint submitted to authorities

Question 72

Defense of qualified privilege

Answer 72

Arises when person has interest or duty to make a statement, and communicates it to a person with an interest or duty to receive the info Statement must not be made out of malice or ulterior motive

Question 73

Erickson v X

Answer 73

``` About: defamation, defense of qualified privilege Teacher sued student for defamation after student complained to her camp counsellor that teacher attacked her in class and teacher was suspended Student raised defense of justification and qualified privilege Court rejected both claims because they accepted teacher's account of the even, and the statement to the counsellor was made out of malice ```

Question 74

MacArthur v Meuser

Answer 74

About: defamation, defense of qualified privilege Plaintiff sued head of medical education committee after they wrote to committee that plaintiff failed to meet job standards Court held that defendant honestly believed there was a problem, therefore qualified privilege applies

Question 75

Defense of fair comment

Answer 75

Defendants who engage in fair comment on matters of public interest are protected from liability Defendant must establish that statements are recognizable as opinion (not fact) and the facts the comment relies on are substantially true Comments must be limited to matters of public interest and activities, must not be made out of malice

Question 76

Defense of responsible communication on matters of public interest Factors to consider (5)

Answer 76

Protects media from liability when they report on public matters and when they observe standards of responsible journalism Factors - source of info - steps taken to verify info - tone of publication - urgency of matter - whether plaintiff was given chance to respond

Question 77

Newman v Halstead

Answer 77

About: defamation and the internet Plaintiff teachers sued school parent who posted defamatory things about them online Court rejected defenses of justification and fair comment because plaintiff's statements were highly inaccurate and dominant motive was malice