Chapter 10: Introduction to Tort Law

Introduction to Tort Law

• Definition: Tort law refers to any harm or injury caused by one person to another, which can arise in various contexts including personal, social, and economic interactions, excluding breaches of contract. The law provides for compensatory mechanisms for victims, typically through damages awarded in civil courts. Tort law plays a crucial role in maintaining order in society by discouraging harmful behavior.

• Purpose: The main goal of tort law is to provide compensation for injuries resulting from the wrongful acts of others. This serves not only to reimburse the victim but also to deter future wrongful conduct by the tortfeasor (the person who commits the tort). Tort law is essential in balancing individual rights with the need for a civil society.

• Tort law determines when responsibility for a loss should be “shifted” to the person considered responsible for causing the loss.

Types of Damages Under Tort Law

• Personal Injuries: These include physical injuries sustained in incidents such as motor vehicle accidents, slip and fall accidents on unsafe property, or injuries sustained in medical malpractice cases. Compensation may cover medical expenses, lost wages, and pain and suffering.

• Property Damage: Tort law allows for compensation for damage to personal property or real estate. This could include damage from negligence, vandalism, or intentional destruction.

• Reputational Damage: This pertains to financial losses resulting from defamation and libel, impacting an individual's or business's reputation. Compensation may include damages for lost opportunities and emotional distress.

• Injury to Honor: In some cases, the law provides for compensation related to defamation cases where the injured party's honor or dignity has been harmed, acknowledging the impact of such injuries.

Categories of Torts

• Tortious acts are diverse; therefore, they are categorized into distinct definitions to address various contexts.

1. Trespass to Land

• Definition: Wrongful interference with another's rightful possession of land, regardless of the intent or knowledge of the trespasser.

• Example: A driver leaving a vehicle on private parking property without permission can be liable for trespass. This also includes entering onto land without consent, such as walking across someone’s garden.

2. Deceit or Fraud

• Definition: Intentionally or recklessly making a false representation that leads to damage or injury.

• Example: Selling a vehicle while falsely claiming it has a new engine when it does not constitutes deceit, leading to financial damages for the buyer.

3. Negligence

• Definition: Compensates individuals who have suffered losses due to another’s unreasonable conduct that lacks intentionality, established by a failure to uphold a standard of care.

• Examples:

• A taxi driver injured due to another driver’s unsafe lane change may seek damages.

• Professional negligence occurs when individuals in a professional role give incompetent advice or services leading to harm, such as a lawyer providing inadequate legal representation.

• Product liability arises when a defective product injures consumers, holding manufacturers accountable for safety breaches.

Key Objectives of Tort Law

• Tort law establishes whether an injured individual remains uncompensated or if liability should shift to the responsible party, ensuring that victims receive appropriate reparation for their injuries.

• It aims to impose liability based on fault, stressing that not every loss results in liability. This principle ensures that only those who are genuinely responsible for harm are held accountable, promoting justice and fairness.

Case Study: Jones v. Schaeffer

• Summary: In this case, Mr. Schaeffer's death occurred in a foggy accident caused by Jones' broken-down commercial vehicle.

• Decision: The Supreme Court found no negligence against Jones, as he exercised reasonable care in leaving reflective flares around the truck. This case highlights the importance of context in determining negligence and liability.

• Importance: Demonstrates how liability can be affected by the actions taken by defendants to mitigate potential harm, reinforcing the principle of reasonable care in tort law.

Another Case Study: Folucca v. Pinkertons of Canada Ltd

• Context: In this case, a hiring security company during a labor strike failed to prevent violence, resulting in nine fatalities due to inadequate security measures.

• Background: Pinkerton was hired to provide security during a bitter strike at a gold mine. A striking minor evaded the security and planted an explosive device in the mine, killing nine miners. The widows sued Pinkerton for negligence.

• Decision: The Supreme Court ruled that Pinkerton was not liable for negligence, as the duty of care owed did not extend to guaranteeing complete safety against criminal acts. Pinkerton’s duty was to provide “reasonable care” to prevent such intrusions, not to ensure the mine entrances were properly guarded to stop intrusions such as an intentional crime committed by a striking miner.

• Significance: This case emphasizes the limits of liability norms in circumstances where intentional wrongdoing occurs, guiding the understanding of duty and breach within tort law.

• Do you agree with the Supreme Court of Canada’s analysis?

  • I agree with the Supreme Court of Canada’s analysis in Fullowka v. Pinkerton’s of Canada Ltd. because Pinkerton’s duty was to exercise reasonable care, not to guarantee absolute protection against intentional criminal acts. While violence during a strike may be foreseeable, the deliberate act of planting an explosive device underground was extreme and difficult to predict or prevent. Holding Pinkerton liable would set an unrealistic standard, making security companies effectively responsible for every criminal act. The Court rightly recognized the limits of negligence law, as the actions of the striking miner were beyond what Pinkerton could reasonably control.

Types of Torts

1. Intentional Torts

• Defined by deliberate harmful acts, where the tortfeasor intends to cause harm or does so by actions that they know will likely cause such harm, such as battery or false imprisonment.

2. Negligence

• Involves liability arising without the intent to harm, often relating to failures to act in a manner consistent with professional duty or reasonable care, such as workplace negligence by employers regarding employee safety.

• when someone is negligent, they are liable for damages even though they did not intentionally cause the event in question.

Tort and Criminal Law Distinctions

• The same event can give rise to two distinct legal consequences: on in tort law and one in criminal.

• For example, an impaired driver who injures a pedestrian in a crosswalk may have committed a criminal offence and may be liable for the tort of negligence.

• Different Objectives:

• Criminal Law: Aims to punish offenders to prevent future crimes and maintain societal order, such as through penalties for impaired driving.

• Tort Law: Seeks to make victims whole through compensation and to deter future harmful behavior by requiring tortfeasors to make reparations for their actions.

Commencing the Actions

• In criminal law, the legal action is called prosecution and is brought most often by Crown prosecutors employed by the federal or provincial governments

  • the wrongdoer is the “accused” and the victim is the “complainant”

• in tort law, the injured party sues in a civil action to enforce their personal or private right to secure compensation.

  • the injured person is the “plaintiff”, and the wrongdoer is the “defendant”

Proving the Actions

• In a criminal action:

  • the Crown has the burden of proving the crime “beyond a reasonable doubt.”

    • guilt must be a logical deduction from the evidence, and it is not sufficient that the jury or judge believed the accused “probably” committed the act.

    • conviction may result in imprisonment

• In a civil action:

  • the plaintiff has the burden of proof and must prove that it is more likely than not that the defendant committed the tort — i.e., a better than 50 percent chance.

  • a successful action usually results in the defendant paying damages to the plaintiff.

Example: Gretchen's Case

• Criminal Liability: Governed by laws regarding impaired driving, facing severe penalties including fines and imprisonment.

• Tort Liability: The injured party can pursue a civil action based on negligence to recover damages.

• Burden of Proof Difference: Criminal cases require proof beyond a reasonable doubt, whereas tort cases only require a preponderance of evidence (balance of probabilities), which is a lower standard of proof.

Liability Concepts in Tort

1. Primary vs. Vicarious Liability

• Primary Liability: Direct responsibility for one's wrongful actions.

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

  • Employers are traditionally vicariously liable for

    • employee acts authorized by the employer, or

    • unauthorized acts so connected with authorized acts that they may be regarded as modes (albeit improper modes) of doing an authorized act

  • it can be difficult to distinguish between an improper “mode” of performing an authorized act that attracts liability and en entirely independent “act” that does not.

  • an employer can be vicariously liable for the employee’s intentionally wrongful acts if a significant connection to authorized conduct is established.

  • Employers are not vicariously liable for crimes committed by employees.

2. Joint Tortfeasors

• Individuals or entities jointly responsible for a tort can be held liable together or separately, ensuring that victims can receive full compensation from any capable party.

• Legislation provides the following:

  • if the negligence of more than one person is responsible for the loss, the plaintiff can sue any or all of them, and fault will be apportioned between the joint tortfeasors according to their level of responsibility

  • the plaintiff can recover 100 percent of the judgement from any of those defendants whom a court has held to be jointly responsible for the loss or injuries.

3. Contributory Negligence: a defence claiming that the plaintiff is at least partially responsible for the harm that has occured.

• If a plaintiff is found to be partially responsible for their own injury, their compensation may be reduced proportionally based on their degree of fault, which serves to promote personal responsibility.

• if the defendant proves that the plaintiff was responsible for at least a part of the loss, the amount of damages that the plaintiff is awarded is reduced by the proportion for which the plaintiff is responsible.

Tort Damages

• The primary goal of a tort remedy is to compensate the victim, usually with a money judgement

  • the plaintiff is entitled to be put into the position they were in before the tort was committed.

• there are less common alternatives are equitable remedies, such as an injunction — a court order requiring or prohibiting certain conduct.

  • for example, an injunction would be ordered if money would not suffice, such as a recurring trespass where there is little economic harm, but the plaintiff wants the trespasser to stop.

• workers compensation legislation: legislation that provides no-fault compensation for injured employees in lieu of their right to sue in tort.

  • should employees be deprived of their right to sue their employer when that employer has been in the wrong and caused the employee’s injury?

  • Workers compensation legislation is designed to protect both employees and employers by providing no-fault compensation for workplace injuries, ensuring that injured workers receive timely support without needing to prove fault. While it may seem unfair to deprive employees of their right to sue when an employer is clearly at fault, this system balances the interests of all parties by avoiding lengthy and costly lawsuits. It ensures that employees receive compensation regardless of who caused the injury, while employers gain protection from unpredictable legal claims. Overall, the system promotes efficiency and fairness, even if it limits the ability to sue.

• Types:

• Pecuniary: Compensation for out-of-pocket expenses, loss of future income, and cost of future care.

  • an injured person is entitled to an award sufficient to provide them with all the care and assistance their injury will necessitate

  • a court may award past loss of income up to the date of trial and will also value the diminished earning capacity, usually with input of experts such as vocational experts and labour economists.

• Non-Pecuniary: Compensation for pain, suffering, emotional distress, and loss of enjoyment of life, which are more subjective in nature and challenging to quantify.

Special Cases of Damages

• special damages refer to out-of-pocket expenses resulting from the injury-causing event, such as ambulance costs and medication costs. Some of these damages may be repaid to the provincial health insurer under the principle of subrogation.

• Punitive Damages: also known as exemplary damages - are much like a fine and are intended to punish the defendant for outrageous, antisocial, or illegal behaviour.

  • for example, the intentional act of defacing someone’s property may attract punitive damages.

• Aggravated Damages: Compensate for emotional distress and mental suffering caused by particularly egregious tortious conduct, acknowledging the psychological impact of certain wrongful acts on victims.

  • unlike punitive damages, they seek to compensate the plaintiff for the emotional consequences of the defendant’s poor behaviour.

• Do you think that Canada should follow the approach taken by the U.S. Supreme Court or do you prefer the flexibility of the Canadian approach? Would it be a good idea just to set a fixed dollar amount as a maximum and not worry about ratios or word descriptors?

  • I prefer the flexibility of the Canadian approach, as it allows courts to consider the specific facts of each case and ensure that punitive damages are fair, reasonable, and serve their purpose of punishment and deterrence without being excessive. Setting a fixed dollar amount as a maximum could be too rigid and may not account for the seriousness of some cases or the financial position of large corporations, making punishment meaningless. The Canadian focus on keeping punitive damages exceptional and proportional helps prevent extreme awards while still holding defendants accountable when necessary.

• Case: Steve Moore’s Tort Action Against Todd Bertuzzi

  • Moore was sucker-punched by Bertuzzi during an NHL game

  • The injuries ended Moore’s NHL career

  • Moore sued Bertuzzi and also sued Bertuzzi’s hockey team for vicarious liability and for allegedly encouraging the attack for $35M pecuniary damages, $1M for aggravated damages, and $2M for punitive damages

  • the lawsuit was eventually settles for an undisclosed sum.

Tort Law and Contract Law Overlap

• Similar facts can lead to liability under both tort and contract law; for instance, a breach of duty to ensure safe premises might simultaneously give rise to a tort claim for negligence and a contract claim for breach of contract.

• for example, a lawyer is hired to give advice and is negligent, causing a loss to the client

• Whether the plaintiff recovers the loss in contract or in tort should not make any difference but where there is a difference, the plaintiff may choose whichever claim provides the higher payout.

Managing Tort Risk

• Businesses must actively manage tort risks to mitigate the potential for legal claims and financial losses due to tortious actions committed by employees or during business operations.

• Strategies: Risk management includes implementing proper training for employees, maintaining safety protocols, conducting regular audits, and having robust liability insurance to protect against potential claims.

Chapter Summary

• Tort law has a significant impact on business enterprises, particularly in the area of negligence.

• tort law permits someones who has been injured or suffered a loss to sue the responsible person for damages.

• the objective of a damages award is to compensate the plaintiff, though punitive damages are sometimes available if the defendant’s conduct has been particularly egregious

• Aggravated damages are also available to compensate the person who suffers intangible injuries such as distress or humiliation caused by the defendant’s reprehensible conduct.

• Less commonly, the injured party will seek an injunction or other form of equitable remedy, as in a trespass-to-land scenario.

• criminal law also affects a business, though to a lesser degree

• As the purpose of a criminal law is to punish the offender - through fines and imprisonment - distinct procedures are in place to help ensure that only guilty people are convicted.

• In a criminal prosecution the Crown must prove its case beyond a reasonable doubt. By way of contrast, the plaintiff in a tort action need only demonstrate their case on the balance of probabilities

• Liability in tort can be primary and vicarious. Primary liability arises due to one’s own personal wrongdoing. Vicarious liability arises due to the relationship one has with the actual tortfeasor, as in an employer-employee context. Since a business may have several employees, its exposure in this area can be considerable.

• when a person is injured due to the tortious conduct of more than one person, those culpable are known as joint tortfeasors. A court can apportion liability between them, but the victim or plaintiff can recover 100 percent of the judgement from any one of them.

• when a tort victim is partially responsible for their own injuries, they have been contributorily negligent. The amount that the plaintiff is awarded will be reduced by the proportion for which they are responsible.

• sometimes, the same set of facts can give rise to liability in tort and in contract, particularly in the context of a professional advice giver such as a lawyer or an accountant

• the best response a business can have to its potential liability in tort is to establish a risk management plan that reduces, eliminates, or transfers risk.

Key Terms and Concepts

aggravated damages Compensation for intangible injuries such as distress and humiliation caused by the defendant’s reprehensible conduct.

battery Intentional infliction of harmful or offensive physical contact.

contributory negligence A defence claiming that the plaintiff is at least partially responsible for the harm that has occurred. 

deceit or fraud A false representation intentionally or recklessly made by one person to another that causes damage.

false imprisonment Unlawful detention or physical restraint or coercion by psychological means. 

intentional tort A harmful act that is committed deliberately or on purpose. 

joint tort-feasors Two or more persons whom a court has held to be jointly responsible for the plaintiff’s loss or injuries. 

negligence Unreasonable conduct, including a careless act or omission, that causes harm to another.

non-pecuniary damages Compensation for pain and suffering, loss of enjoyment of life, and loss of life expectancy. Also called general damages. 

pecuniary damages Compensation for out-of-pocket expenses, loss of past and future income, and cost of future care.

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

tort-feasor Person who commits a tort. 

trespass to land Wrongful interference with someone’s possession of land.

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

workers’ compensation legislation Legislation that provides no-fault compensation for injured employees in lieu of their right to sue in tort.