Module 2: Torts

Plaintiff

Person who starts a lawsuit

Defendant

Person who is being sued

Tortfeasor

person who committed the tort

Appeallant

person who appeals a court's decision

Respondent

person who responds to/opposes the appeal

Statement of Claim

Document initiating a civil claim

Statement of defence

Defendant's formal response

Discovery

Pretrial process for obtaining evidence and information

Default judgment

Judgment potentially available when a party fails to respond as required

Three major forms of liability

Intentional tort: An intentional act satisfying the elements of a recognized tort

Negligence: Failure to exercise reasonable care that causes foreseeable, legally recognized harm

Strict liability: Liability without needing to prove negligence or intent, in a limited category recognized by law

Tort of Negligence

when someone fails to take reasonable care, and that failure causes foreseeable harm to another person

How to prove Negligence

Duty of care → Standard of care → Breach → Causation → Remoteness → Damage

Duty of care

Legal obligation to take reasonable care to avoid harming another person

Foreseeability (Duty of care)

Whether a reasonable person could anticipate the risk/type of harm

→ Helps determine duty of care and remoteness

Standard of care

Level of care expected from a reasonable person in comparable circumstances

Breach

Failure to meet the required standard of care

Causation

Causation establishes whether the defendant's breach actually caused the harm

But-for test (Causation)

Tests whether injury would have happened without the negligence

Concurrent negligence (Causation)

Negligence by more than one defendant contributing to the injury

Remoteness

Remoteness addresses whether the type of loss was reasonably foreseeable.

General damages

Compensation for losses that aren't easily given an exact dollar value

Thin skull rule

The thin skull rule means that if a defendant negligently injures someone, they are responsible for the full extent of the injury, even if the victim had a pre-existing weakness that made the injury worse than expected.

Crumble skull rule

Plaintiff has a condition that would have caused deterioration or losses even without the accident.

→ Defendant is responsible only for the additional injury attributable to the negligence

Joint and several liabilities arises when

Multiple parties are jointly and concurrently responsible for the harm caused by their combined actions

Pecuniary damages

Compensates financial losses

Special damages

Compensate for specific financial losses that can be calculated, such as medical expenses, lost wages, or property repair costs

Nominal damages

A small, symbolic amount awarded when the plaintiff's legal rights were violated but they suffered little or no actual loss

Punitive damages

Awarded in exceptional cases to punish and deter the defendant for especially malicious, oppressive, or outrageous conduct, rather than to compensate for a specific loss

Aggravated damages

Compensate for additional emotional suffering, humiliation, or distress caused by the particularly harmful way the defendant acted

Injunction

A court order that requires someone to do something or stop doing something.

Contributory Negligence

occurs when the injured person (plaintiff) was also partly responsible for their own injury

Defences to Negligence

Defence	Meaning	How it affects the claim
No duty of care	No legally recognized duty to the plaintiff	Negligence claim fails
No breach	Defendant met the applicable standard of care	Negligence claim fails
Lack of causation	Defendant's breach did not cause the injury	Negligence claim fails
Remoteness	The type of loss was not reasonably foreseeable	The remote loss is not recoverable
Contributory negligence	Plaintiff's own negligence contributed to the harm	Damages may be reduced
Voluntary assumption of risk (volenti)	Plaintiff freely and knowingly accepted the legal risk in the necessary sense	Can provide a complete defence if fully established
Waiver / disclaimer	Plaintiff agreed to a legally effective restriction on claims	May limit or defeat liability
Limitation period	Claim brought after the applicable legal deadline	May bar the action

Occupier’s liability (A specific area of negligence)

when someone is injured because the person or business responsible for a property failed to keep the premises reasonably safe

Absolute privilege

A complete defence to defamation for statements made in specially protected situations, mainly court or legislative proceedings. It generally applies even if the statement is false or malicious.

Qualified privilege

A defence when someone has a legitimate duty or interest to give information to someone who has a legitimate interest in receiving it. The defence can be lost if the statement is made maliciously or improperly.

Fair comment

defence to defamation that protects opinions or criticism based on facts, particularly on matters of public interest
→ “This is my opinion, and there are facts supporting it.”

Strict liability

Strict liability means a person can be held legally responsible for harm even if the plaintiff does not have to prove that the defendant was negligent

Suppose someone keeps something exceptionally dangerous on their property and it escapes and causes damage. In a situation where strict liability applies, they may be liable even if they took reasonable precautions.

Vicarious liability

being held responsible for someone else's wrongful act because of your legal relationship with them

Potential Defence for Vicarious liability

The employer may argue the wrongful act was independent of the employment and lacked the required connection.

Tort of intrusion upon seclusion (Intentional)

someone intentionally and unjustifiably intrudes into another person's private affairs, and the intrusion would be considered highly offensive to a reasonable person

Tort of Trespass (Intentional)

occurs when someone intentionally enters or remains on another person's property without permission or legal authority. It can also include intentionally placing an object on another person's land

Tort of False imprisonment (Intentional)

Unlawful total restraint of another person's freedom of movement.

1. The defendant restrained the plaintiff's freedom of movement.

2. The restraint was total rather than a minor inconvenience.

3. The restraint lacked lawful justification.

Tort of Nuisance

occurs when someone's use of their property unreasonably interferes with another person's use or enjoyment of their own property

Tort of Detinue (Intentional)

wrongfully keeping someone else's personal property and refusing or failing to return it when the owner is entitled to have it back

Tort of Conversion (Intentional)

Serious interference with someone's property rights, inconsistent with their ownership.

e.g. Someone sells a borrowed laptop without permission

Tort of Assault (Intentional)

intentionally causing someone to reasonably believe they are about to experience imminent harmful or offensive physical contact. Actual contact is not required

Tort of Battery (Intentional)

intentional infliction of harmful or offensive physical contact

Tort of Defamation (Intentional)

occurs when someone communicates a statement about another person to a third party that would lower that person's reputation in the eyes of a reasonable person

Major defences to defamation

• Truth / justification: The substantial truth of the defamatory statement is established A business accurately reports another company's proven misconduct

• Absolute privilege

• Qualified privilege

• Fair comment: Protection for recognizable opinion based on facts on a matter of public interest, satisfying the applicable test

• Responsible communication: Protection for responsible communication about matters of public interest (e.g. Journalist conducts appropriate verification before publishing important allegations)

• Innocent dissemination: Protection for certain secondary distributors lacking the relevant knowledge and negligence (e.g. A qualifying distributor unknowingly circulates defamatory material)

Tort of Slander (Intentional)

defamation that occurs mainly through spoken or temporary communication

Tort of Libel (Intentional)

defamation communicated in a written or more permanent form

Tort of Deceit (Intentional)

occurs when someone knowingly or recklessly makes a false statement intending another person to rely on it, and that person relies on it and suffers a loss

Tort of Fraud (Intentional)

broader concept of intentionally using dishonesty or deception to obtain a benefit or cause another person a loss.

Tort of Passing off (Intentional)

when a business misrepresents its goods, services, or brand in a way that makes customers think they are connected to another established business, harming that business's goodwill or reputation

Tort of Injurious falsehood (Intentional)

False, malicious statements about another's goods or business interests causing financial loss

Distinction between criminal law and tort law

Tort law is concerned with compensation, whereas criminal law is concerned with punishment