Tort Law - Law 12

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

1. Duty of Care

2. Failure to fulfill standard of care

3. 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