Law Ch 10 (tort law overview)

Tort

A type of civil wrong

• Any harm caused by one person to another, other than through a breach of contract, and for which the law provides a remedy

• Ex: defamation, negligence, trespassing

Purpose of tort law

To provide compensation to people who are injured as a result of the actions of others

• Other person would have had to have done something wrong to be liable

• Seeks to shift losses from victims to their tort-feasors who caused the loss

• If you take reasonable care to avoid losses you cannot get sued

• Pinkerton and schafers case (test)

How torts are categorized

Intentional torts

Unintentional torts

Intentional torts

A harmful act that is committed on purpose

Examples:

• Assault: the threat of imminent physical harm (does not have to be physical in tort context, could be a threat, does not need physical context)

• Battery: intentional infliction of harmful or offensive physical contact (there is physical contact)

• False imprisonment: unlawful detention of another (detaining someone unlawfully)

Unintentional torts

Unreasonable conduct, including a careless act or omission, that causes harm to another (dont have to intend the harm, but behave unreasonably)

Examples:

• Car accidents

• Medical/lawyer/etc malpractice

Certain legislation such as workers comp gets rid or tort lawsuits and provides compensation for employees

Tort law vs criminal law

Tort law: Objective is to compensate the victim for the harm suffered due to the responsibility of another person (focused on the victim)

• the injured party brings in the legal action by means of a lawsuit against the other person (private, civil matter)

Criminal prosecution: to punish bad behaviour to deter such conduct in the future (focused on the offender)

• the legal action is called prosecution and is brought mostly by crown prosecutors employed by the federal or provincial government (supreme or provincial court)

Vicarious liability

The liability that an employer has for the tortious acts of an employee committed in the ordinary course or scope of employment

Ex: highway traffic act, if you take your parents vehicle and crash it into someone, you and your parent would be liable

Joint tortfeasors

2 or more people are held jointly responsible by a court for the plaintiffs loss or injuries

Ex: if a driver is rear ended by another driver causing her to hit the driver in the front, the front driver will likely sue both drivers in the rear (both drivers would be 100% responsible)

Contributory negligence

A defence to a negligence lawsuit, arises when the plaintiff is at least partially responsible for the harm that has occurred. A plaintiff can be anywhere from 0-100% contributorily negligent.

• When you have a joint tortfeasor situation, if you can proportion liability to those who caused the harm, than no one would be 100% responsible for the whole situation.

• Ex: If 2 cars hit your rear, one may be 60% responsible and one may be 40% responsible, therefore they would contribute their own % to make the 100. If, however, one car didnt have insurance or had nothing for their share, the other car would have to make up that lost amount to still make it to that 100%.

• Ex: If the plaintiff wasnt wearing a seatbelt at the time of the accident, the court will reduce the plaintiffs award by their own percentage of fault

Tort vs contract damages

Compensation of damages is based off of:

Tort damages: put you in the position if the tort didnt occur

Contract damages: put you in the position if the contract was completed (calculates what you wouldve been owed for the contract)

Types of damages

Pecuniary damages

Nonpecuniary damages

Punitive damages

Aggravated damages

Pecuniary damages (money)

Compensation for out-of-pocket expenses, loss of past and future income (or loss of earning capacity), cost of future care, compensation for housekeeping

• Has nothing to do with the behaviour of the person who committed the tort

Nonpecuniary damages (non-money)

Compensation for pain and suffering, loss of enjoyment of life, loss of life expectancy

• Cant calculate to the same degree, and dont have a receipt for the loss

• Has nothing to do with the behaviour of the person who committed the tort

Punitive damages

An award to the plaintiff to punish the defendant malicious, oppressive, and high-handed conduct (this only happens occasionally, torts dont usually deal with punishing), more process related

• Have to do with the behaviour of the person who committed the tort

Aggravated damages

Compensation for intangible injuries such as distress and humiliation caused by the defendants reprehensible conduct (such as someone getting fired for unfair reasons)

• Have to do with the behaviour of the person who committed the tort

Tort and criminal lawsuits overlapping

A tort and criminal lawsuit can overlap

• In this case, it is better to have the criminal proceedings first, because you could use this in a civil lawsuit

• Criminal courts standards of proof is beyond reasonable doubt, whereas in civil court it is balance of probabilities.

• If you prove someone is guilty beyond reasonable doubt, that is going to stand in civil court

Conversion

Tort for theft of your property rights

Tort and contract lawsuits overlapping

Overlapping liability in contract and tort is not uncommon. A lot of times you will sue someone for breach of contract and tort.

Ex: when you get a lawyer to provide a professional service for you, it is implied that there is a contract. If they screw up you can sue for breach of that contract and negligence.

Ignoring tort risk in business

Can result in:

• Lawyer fees and amount of judgement awarded to the successful plaintiff

• losing insurance coverage

• losing a hard-earned business reputation

Note: managing tort risk is usually done through insurance coverage