GMGT 3300: Tort Law

Liability

a legal right enforceable by and against legal persons by way of court process where the court can apply a remedy

Elemental Analysis

• each liability has constituent elements

• the plaintiff must prove the elements exist to the requisite standard of proof (e.g. beyond a reasonable doubt for criminal cases)

Tort

• an act or omission in some circumstances that causes injury to someone or their property where the person performing the act has no lawful excuse to do so

• the purpose of tort law is to compensate the injured party for the loss suffered by the tortuous act, rather than punish the wrongdoer

• standard of proof is the balance of probability, i.e. certainty of 50% plus 1

• to hold someone liable, they need to be at fault

  • a blameworthy mental condition

  • they perpetrated the act that caused the harm with intent or they were negligent

Intentional Tort

• an intentional act proscribing intentional harm

• cannot be reflexive or defensive

• can’t be liable for being…

  • reflexive

  • automaton (not in a conscious state)

  • somma abulens (sleep walking)

Elements of a Tort

• intention

• causation

• proscribed harm

for every intentional tort, these elements must be proven

Intention

• must be a voluntary act committed by the defendant

• intention must be differentiated from motive

• it is understood by the court that the defendant has the intent to cause the harm and is responsible to prove otherwise and rebut it

Motive

• described as the underlying objective

• defendant’s mind must prompt the bodily movement to create the harm

Intent

• more direct than motive

• deals with the immediate intent to cause harm

• difficult for the plaintiff to address this

Causation

• means it must be the operative cause (close in time with not intervening acts), i.e. nothing to do with motive

• fairly direct cause

• they don’t get into the psychological analysis of what’s going on

Proscribed Harms

• battery (touching)

• assault (putting someone in apprehension of a touching)

• deceit (fraud, the false assertion of fact with knowledge of its falsity or to any rate not an honest belief in its truth)

• false imprisonment (anyone who intentionally confines another within fixed boundaries)

• intentional infliction of mental suffering

Defence

• where there’s an excuse for the defendant so that liability which would normally result is excused or conduct which would ordinarily result in liability would be excused

• damages will not be rewarded if the defendant is successful in proving a defence exists

Excuses to Absolve Defendant from Liability

• self defence with extreme limits, i.e. no other reasonable way of escaping, has to be reasonable force

• consent, i.e. agree to enter into an activity, but there are levels to consent so that it can’t be to excessive force

• defence of legal authority, i.e. some individuals are charged with responsibilities and as a result they have authority to perform acts that would otherwise be torts, unless they exceed the reasonable force necessary

Injunction

a court order to get the tort feasor to stop with the persistent tort