Law 2101: Torts Law

What is a Tort?

• A Civil Wrong, for which the plaintiff sues a defendant to obtain damages.

  • Between Private Parties

What is the difference between Tort Law and Criminal Law?

• Action brought by a plaintiff, NOT the Crown.

• Seeking to redress a private wrong

• The Goal being monetary compensation.

• Defendants are found “Liable” NOT “Guilty”

• Lower burden of proof- on the balance of probabilities vs. without a reasonable doubt.

What is the difference between Tort Law and Contract Law?

• Contracts involve prior agreements with mutual obligations, Torts often involve strangers.

• Tort obligations are imposed by the law (not private individuals) on all people towards all other people.

• Damages serve different purpose: NOT to put the parties in a the same position as if a contract had been fulfilled.

  • Put parties in the position of if the Tort had not occurred.

What are the Goals of Tort Law? (Why do people Sue?)

1. Compensation:

   • In order to minimize the burdens of injured people.

   • Fault Requirement

   • Expenses of Litigation (may have to settle)

   • Defendant may not have money

   • Embarrassment

   • Insufficient Evidence

   • Disruptive to Relationship.

2. Deterrence

   • To deter defendants from engaging in the same behavior. (Problem in Negligence because one is not aware in first place)

3. Vindication/Punishment:

   • “Punitive Damages” Suggesting moral blameworthiness. (rare in Negligence).

   • Vindication historically important, nominal (symbolic) damages available but not worth it.

What are Intentional Torts?

• Torts where the defendant intends to perform the act that injures the plaintiff.

• The Plaintiff has the burden of proving all the elements of the tort on the balance of probabilities.

What is the Battery Tort?

• Intentionally causing harmful or offensive contact with another person.

  • Harmful Contact: Punching, slapping, kicking etc.

  • Offensive Contact: Contact with no consent causing the feeling of offensiveness. (ex. kissing, poking, spitting) including non-consensual medical treatment and sexual contact

• Burden of proof on the Plaintiff which shifts to the Defendant to prove consent.- Implied or Express

What was the Bettel v. Yim Case?

• Plaintiff fooling around in a store, accidentally lights a bag of charcoal on fire.

• The defendant grabbed and shook him accidentally hitting his nose with his head.

• Sued for Battery.

  • The plaintiff had to prove that he had the necessary intention to perform battery (shook him)

  • Where a defendant intends to commit a battery, he is responsible for ALL (unforeseen) consequences.

What is the Assault Tort?

• The creation of a reasonable apprehension of imminent physical contact. Ex. approaching with raised fists

• Often happening before battery and trivial in comparison.

• Conditional Threats are generally NOT assaults.

• Assault if the Defendant has the apparent intent and ability to cause imminent contact.

What was the Holcombe V. Whitaker Case?

• The plaintiff wanted her marriage annulled.

• The defendant proposed a conditional threat (kill if you go to court) + banging on doors, trying to break in.

• The words alone do not constitute assault, + the show of force for an unjustifiable demand.

What is the False Imprisonment Tort?

• Intentionally brining about the total restraint of a the plaintiff’s movement. (With no other option).

• Physical or Psychological Barriers.

• Once the plaintiff establishes total restraint, the defendant then must prove legal authority to restrain.

What was the Campbell v. Kresge Co. Case?

• The plaintiff suspected of shoplifting was asked by the off Duty Police Officer/ Security Officer to go back inside to avoid embarrassment.

• She felt psychologically pressured- she emptied her bag and offered a search.

• Sued for her upset and embarrassment.

• Found liable with the court rejecting the defense of legal authority.

What are the Defenses to Intentional Torts?

• The defendant must show on the balance of probabilities that the defense applies.

  1. Consent

  2. Self-Defense

  3. Defense of Third Parties

What is the Consent Defense?

• The defendant is not liable if a plaintiff consented to alleged actions.

• Express or Implied.

• Consent extends to risks normally inherent to the activity. Ex. Contact Sports.

• Ex. Wright v McLean- Mud fights, sues for being struck. Not liable because he consented to risks associated with the activity through participation.

How does Consent in Contact sports work?

• “Legal” contact in the sport.

• May include rule infractions that are common in the sport.

• Does NOT extend to violent conduct that is outside of the normal scope of the sport.

• For very dangerous sports ex. MMA liability has a high threshold.

What Factors Impair Consent? (Fraud)

• If the defendant was either responsible

• + for creating or was aware of the misapprehension.

• If someone else lied to the plaintiff, then the defendant may rely on this defense.

• May include non-disclosures of info. ex. STIs

• R v. Cuerrier

  • He failed to disclose HIV Positive status. Because it is life threatening, does it Vitiate consent?

  • Withholding the status changes the nature of the act from Collateral to Nature- risk of death.

What factors impair consent? Public Policy

Deals with Unfairness

• Mismatched opponents to consensual fights.

• Consent to serious bodily harm is NOT allowed.

• Exploitation or Abuse of Trust:

  • Norberg v. Wynrib: Doctor abuses trust of drug addict for sex.

• Blood Sport or Prize Fighting

What is the Self-Defense Defense?

• Requires

  • Honest and reasonable belief the harmful contact is imminent.

  • Reasonable or Proportionate Force.

• Cannot be used after the danger has passed.

• Same requirements for defending third parties.

  • Gambriell v. Caparelli- a Mother whacks a neighbor over the head when she finds him on top of her son. Not Liable.

• Pre-Emptive Force: Need not wait for the other side to strike first- patterns of violence. Ex. R v. Lavallee- battered Woman.

What is Negligence?

• Unintentional Tort that arises from the failure to live up to the standards expected of a reasonable person under the circumstances.

What are the Elements of a Negligence Claim? What are the Defenses?

1. Duty of Care and Standard of Care (What the Defendant owed)

2. Breach of the Standard of Care (Carelessness)

3. Causation (Rational Connection)

4. Damages (Plaintiff must suffer an actual loss)

Defenses:

1. Damages are too Remote (loss is unforeseeable or disproportionate)

2. Contributory Negligence

3. Voluntary Assumption of Risk

4. Inevitable Accident.

What is Duty of Care?

• The threshold in any negligence case.

• Donoghue v. Stevenson- Established that a manufacturer of food or drink owes a duty of care to the ultimate consumer.

• Lord Atkin’s Neighbor Principle:

  • Neighbor, persons who are closely and directly affected.

  • A defendant must think reasonably about who may be injured as a result of your actions.

What is the Modern Test for Duty of Care? (Cooper v. Hobbart)

Stage 1 Establish Prima Facie:

• Reasonable foreseeability of harm and the proximity of relationship between the plaintiff and defendant.

Stage 2 Residual Policy Considerations: Why courts shouldn’t enforce DOC.

1. Indeterminate Liability: Disproportionate, Large or uncontrollable liability

2. Government Policy Decisions: Courts cannot second guess the executive.

3. Interference with Other Legal Relationships: Ex. Contracts, Warranties etc.

What is the Duty to Rescue?

• No legal duty to recues someone in peril in common law

• Unless

  • occupying a special position or relationship.

  Liable:

  • Where a defendant prevents others from assisting the plaintiff (worse position)

  • Where the defendant worsens the plaintiff’s situation.

  • Where the defendant induces reliance - indicates they are acting as a lifeguard or firefighter etc.

What is the Duty to Control/Protect?

• Where the defendant places the plaintiff in a dangerous situation (ex. Crocker v. Sundance)

• Where the defendant’s role is aimed at protecting those in the plaintiff’s position (ex. Child Welfare Authorities)

• Where the defendant’s role is to protect people from a dangerous person (ex. Parole authorities, bouncers)

What is the Manufacturer’s Duty to Warn?

• Where products may be dangerous when used or misused (ex. Power tools, medicine).

• NO need to warn of obvious risks

• More Stringent guidelines for pharmaceuticals or products that might be ingested.

What are the Duties Related to Reproduction?

Wrongful Pregnancy:

• Form of contraception in which the procedure is performed negligently- ends up pregnant.

• Claimed by parents for the costs/harms associated with unwanted children.

• Costs limited to the pregnancy/child birth.

Wrongful Life:

• Claim by a child born with a disability due to the defendant’s negligence.

• Courts reject claims by children because they don’t want to say that being born with a disability is better than not being born at all.

What is Standard of Care? What factors effect the Standard of Care?

• The reasonable person test (Arland v. Taylor). Sets the baseline for conduct that we can expect from each other.

• Factors Affect Standard of Care

  1. Probability of Injury

  2. Severity of Injury: Ex. Bolton v. Stone (Cricket Ball Hits Her)

  3. Cost of Avoiding the Risk

  4. Social Utility of Defendant’s Conduct: Lenient on those performing an important public function.

What is the Custom of Professional Standard of Care?

• Standard of care is of the reasonable professional in the field.

• And compliance with customary practices is usually sufficient.

  • White v. Turner: Breast reduction, negligence in surgery.

• Unless the practice itself if fraught with obvious risk.

  • ter Neuzen v. Korn: HIV as a result of artificial insemination.

What is Causation? (But-For Test)

• Established through the But-For Test (Barnett-Arsenic Tea):

  • Whether “But-For” the defendant’s negligence would the plaintiff suffered the injury?

• Modifications to the But-For Test (Cook v. Lewis)

  • The Multiple Negligent Defendants Rule- if the plaintiff can prove that the defendants were negligent- burden of proof shifts to defendants to disprove causation.

• Material Contribution to Risk:

  • Exceptionally, plaintiff can say defendant’s conduct materially contributed if:

    a) establishes “but-for”

    b) the plaintiff, through no fault of her own, is unable to show that any one of the tortfeasors was the necessary cause of her injury.

What are Damages?

Compensation. Plaintiffs can only sue for negligence if they suffer loss in terms of:

• Physical Injury

• Psychiatric Injury

• Property Damage

• Economic Loss

What is Remoteness of Damages?

• Proved by the Defendant

• May allow the defendant to avoid liability if losses are unforeseeable or disproportionate. (Falkenham v. Zwicker))

• Thin-Skulled Plaintiff, you take your plaintiff as they are (ex. Forcing a Muslim Woman to cut her hair has more of an impact)

What are the Defenses to Negligence?

• Contributory Negligence: The plaintiff contributes

• Voluntary Assumption of Risk: Ex. Waivers

• Participation in a Criminal or Immoral Act (Puts court’s reputation in to disrepute)

  • Will only prevent the plaintiff from collecting compensation if they are looking to profit from the criminal wrongdoing (ex. Hall v. Herbert- drunk driving)

What are the Elements of a Defamation Action?

• Defamatory Material

• Reference to the Plaintiff

• Publication.

What is Defamatory Material?

• Anything that lowers the plaintiff’s esteem in the eyes of society.

• Includes literal meanings AND innuendos

• Words, Images, Gestures and Overall Impression are included.

What is Reference to the Plaintiff?

• Includes Name or Image

• Includes identification by association- ex. moth, child (outside of marriage).

• Does not generally include individual members of large groups (unless the group is considered a person ex. Union)

What is Publication?

• Includes any communication to a Third Party who hears and understands it.

• Each repetition to someone new is considered a publication. '

• Anyone involved in publication can be found liable.

What are the Defenses of Defamation?

1. Justification (Truth)

2. Absolute Privilege

3. Qualified Privilege

4. Fair Comment

5. Responsible Communication

What is the Justification (Truth) Defense?

• A complete defense. A plaintiff cannot complain about damage to reputation that the plaintiff essentially deserves.

• Hakim v. Laidlaw Transport

  • Bus driver accused of sexual offence. The school issued a letter and stated that being charged does not equal guilt. Even if they were defamatory it is justified because it was reasonable.

What is the Absolute Privilege Defense?

• Instances where the truth is so important that you are granted absolute immunity.

• Specific Occasions or Parties

  • Executive government officers

  • Parliamentary proceedings

  • judicial proceedings

What is the Qualified Privilege Defense?

• Where a speaker has a duty to make a statement and the receiver has duty to receive it.

• Defeated by Evidence of Malice: Ex. Erickson v. X- school teacher accused of attacking student.

• Includes:

  • Protection of your own interests, common interests, public interests, fair and accurate reporting of public proceedings.

What is the Fair Comment Defense?

• Protect statements of opinion

• Comments must be based on true facts and must relate to matters of public interests.

• Defeated by evidence of Malice

• Includes political speech, sports commentary, book, music and restaurant reviews.

What is the Responsible Communication Defense?

• Protects journalists and others, protects statements of fact or matters of public interest.

• Only if standards of Responsible communication (journalism) are met.

  1. Seriousness of allegation- more serious the allegation the more careful the defendant should be

  2. Reliability of source-

  3. Whether plaintiff’s side of story is sought out and reported

  4. Urgency of matter

  5. Whether inclusion of defamatory statement is justifiable

  6. other considerations

What Remedies do Defendants have if the Plaintiff is Successful?

• Injunction: Court Order

• Damages (Hill v. Scientology)

  • To Plaintiff

  • “At large” ball park number

  • Considering the totality of the defendant’s conduct

  • Deterrence Factors (large liability award deters).

  • Punitive Damages- Punish the defendant for conduct.

Online Defamation: When is Material Defamatory?

Consider that online material is often exaggerated or inflammatory.

• “give and take” to internet spats

• Read online statements with a grain of salt.

• Some courts say that internet defamation is less severe than traditional media.