Studied by 14 people
Tort law
deals with wrong or injuries inflicted on one party on another, outside of the context of a formal relationship
Tort word origin
“J’ai tort” - french
Cause of Action
a fact or facts that enable a person to bring an action against another. (there can be more than one cause of action)
eg: negligence, wrongful death
Overlap between crime and tort
Crime | Tort |
Theft | Conversion |
Assault | Assault/battery |
Murder | Wrongful death |
theft (crime) =
conversion (tort)
assault (crime) =
assault/battery (tort)
murder (crime) =
wrongful death (tort)
Objectives of tort vs criminal law
Crime | Tort |
Defendant found guilty/acquitted | Defendant found liable/not liable |
Parties: the Crown (Rex/govt) v defendant | Parties: plaintiff v defendant |
Punishment: Criminal liability - jail time | Punishment Defendant must pay money damages |
Burden of Proof: Beyond a reasonable doubt (99%) | Burden of Proof: On a balance of probabilities (50%) |
defendant found guilty/acquitted (crime) =
Defendant found liable/not liable (tort)
Parties- R v. defendant (crime) =
Parties- plaintiff v defendant (tort)
Punishment- Jail time (crime) =
Punishment- money damages (tort)
Burden of proof- beyond a reasonable doubt (99%) (crime) =
Burden of proof- On a balance of probabilities (50%) (tort)
In tort the aim is
to compensate the victim
In criminal law the aim is
to punish, deter, rehabilitate, and protect society
Plaintiff
party harmed/bringing the charges
Defendant
party defending against the charges
Liale/Not liable
responsible/not responsible
intentional tort
defendant did mean to cause damage
eg: assault, conversion, defamation
unintentional tort
defendant didn’t mean to cause damage
eg: negligence
legal test for negligence
Duty of Care
Failure to fulfill standard of care
Causation
Duty of Care (negligence)
proximity: some basis of relationship
Reasonable foreseeability: defendant acted despite foreseeable risk
Standard of care (negligence)
Reasonable man test- would an average person think this behaviour was reasonable in the circumstances
Causation (negligence)
There is a link between plaintiff’s harm and defendant’s conduct. It must be established that the action/omission of the defendant contributed to the harm.
Negligence definition
a serious form of carelessness; a person is doing something that you know, or ought to know, will have consequences
Compensatory damages
are just regular damages
Punitive damages
extra money paid mainly to punish, “insurer acted in bad faith”
Statement of Claim
Plaintiff’s story, might admit deny or plead insufficient knowledge, and remedies requested
*must say cause of action
Statement of Defence
Same as Statement of Claim but for defendant
The pleadings
Statement of Claim and Statement of Defence
Examination for discovery
conduct interviews of key witnesses, prior to trial, they are recorded and you can refer to the transcripts in trial. Parties also exchange documents they plan to rely on at trial.
Pre-trial motions
evidence issues, timelines, failure to provide documents, etc
Settlement offer
In most cases a party will make an offer prior to trial to avoid the time and expense of trial
Trial avoiding options- Mediation
NOT BINDING- usually an expert who listens and recommends a course of action
Trial avoiding options- Arbitration
BINDING- adjudicator/judge makes a judgement that the court enforces and can’t be appealed
Class action
legal claims brought by a group of plaintiffs that are similarly situated
Representative plaintiff
A person selected to represent the group in a class action
Contingency
lawyers take a cut of the award but pay out of pocket for everything.
Pro bono
for good; for the public good; for free
Statue of limitations
time limit for lawsuits; in a civil lawsuit once you know about the harm you have a certain amount of time to bring it to court
Case studies to know
estate of street v baker
jordan house ltd v. menow
crocker v sundance
childs v desrmeaux
mccormick v plambeck
Erin Brockovich
Note
Flashcard