Tort Law - Lecture 1

Thinking About the Law - Donaghue v Stevenson

• An activity is introduced to explore substantive law through a story: Mrs. Donaghue at a cafe with a friend who buys her ginger beer.

• The ginger beer bottle is opaque, and after consuming most of it, she discovers a decomposing snail inside.

• As a result, she becomes ill.

• Students are prompted to brainstorm potential parties Mrs. Donaghue could sue:

  • The company who made the ginger beer.

  • The restaurant or cafe.

  • Potentially the friend.

Discussion on Potential Lawsuits

• The Friend:

  • Suing a friend can damage the friendship.

  • The friend may not have sufficient funds to provide adequate compensation.

• The Cafe:

  • Potential problems include:- The cafe did not put the snail in the bottle and the bottle was opaque.

    • Cafes may not be wealthy enough.

    • Mrs. Donaghue did not directly purchase the drink; there is no direct contractual relationship.

• The Manufacturer (Ginger Beer Company):

  • They have more money to pay out compensation.

  • They were responsible for what goes into the bottle.

  • One of the problems is the same problem as with the cafe, they don't have a direct contractual relationship with Mrs. Donaghue.

Significance of the Case

• Donaghue v Stevenson is a landmark case in English-speaking law.

• It established core legal principles of modern negligence.

• The case created a way for the manufacturer to be liable even without a direct contractual relationship with the injured party.

Hypothetical Situation - Nightclub Altercation

• Two men are at a nightclub, and an altercation leads to one punching the other.

• The punched man falls, injures his leg, and requires surgery.

• The surgeon performs poorly, resulting in the amputation of the man's leg.

• Students are asked to identify potential parties to sue:

  • The surgeon.

  • The man who punched him.

  • The hospital.

  • The nightclub.

  • Security staff.

Parties to Sue

• Man Who Punched:

  • Obvious case, as the punch led to the initial injury.

  • Tort of battery.

• Nightclub/Bouncer:

  • Based on negligence for failing to ensure patron safety.

  • Negligence stems from failing to protect him or stop the altercation.

• Surgeon/Hospital:

  • Negligence due to poor medical treatment.

  • The surgeon did not exercise the sort of level of care expected.

Causation

• Complications arise in determining responsibility for the amputation.

• The punch instigated events, but the amputation resulted from medical negligence.

• The nightclub failed to protect him, but did not cause the amputation.

• The surgeon can argue that without the initial injury, they would not have been involved.

• Causation issues require determining who caused the ultimate harm.

• All parties could be potentially liable depending on the facts.

• Torts makes people liable for causing harm to others if they fail to adhere to certain standards of conduct.

What is a Tort?

• There is no single definition of a tort.

• A civil wrong for which the law will provide a remedy.

• Three words to focus on:

  • Wrong

  • Civil

  • Remedy

• The word "wrong" refers to the infringement of rights and interests recognized under law.

• The word "civil" means that it deals with the dispute between the parties involved.

• The work "remedy" is a court order to address the wrong as between the parties involved.

Areas of Law

• Law is split into private law and public law.

• Private law deals with private individuals.

• Public law is where at least one of the parties is not a private individual.

• Tort, property and contract are aspects of private law.

• Public law includes criminal and constitutional law.

• Tort law is about standards of conduct that the law imposes to try and protect people from harm.

• Contract law is when people voluntarily enter into an agreement after coming together.

Why Does This Matter?

• To get a court order, you need to state a basis in law for the thing that you're asking for.

• You have to tell court what your legal basis is.

• Depending on how the rules are, it can significantly advantage or disadvantage your client. It can change the result quite dramatically.

O. J. Simpson Example Cases

• O. J. Simpson was a man who was tried two times for the same murder.

• In the criminal trial he was found not guilty.

• In the civil trial a different jury found him liable.

• This is something completely fine according to lawyers.

Standard of Proof

• The standard of proof is the degree of certainty to which a party must prove their case.

• Beyond reasonable doubt gets thrown around a lot when someone's being tried for something.

• In a civil case, the standard of proof is drastically different. It's a much lower threshold.

• Proof requires the balance of probabilities. The threshold to determine if something is more likely to be true than not true.

• Burden of proof refers to the party who bears the onus or burden of proving their case to the requisite standard.

Tort vs. Criminal Law

• Crown vs accused in criminal law.

• Plaintiff vs defendant in tort law.

• Guilty vs not guilty in criminal law.

• Liable vs not liable in tort law.

• Criminal law deals with convictions that can lead to imprisonment or fine.

• Tort law deals with judgment that includes remedies for harm.

• Criminal law has beyond reasonable doubt, tort law has balance of probabilities.

• The terms charges and prosecutions are criminal law based.

• Suing is a tort system term.

• Crimes and offenses are used in the criminal legal system.

Torts Covered in This Course

• Trespass to the person:- Battery: Making physical contact with another person.

  • Assault: Threatening Battery

  • False Imprisonment. Stopping someone from moving.

• Negligence: Someone causes harm to someone else through their carelessness, through not taking reasonable care.

• Private Nuisance: Someone causes a nuisance to the people around them.

Sources of Tort Law

• The common law and statutory law are the main sources.

• Most of our thoughts come from the common law.

• Civil liability acts are being passed to modify the common law.

• The primary focus is on cases.

Purpose of Torts Law

• The main purpose is to compensate.

• The aim is to put the plantiff in the position they would have been had the tort not occurred.

• This is usually done through compensation.

• Non-economic losses can be dealt with.

• Economic losses can be dealt with.

Limitations of Tort Law

• Tort law only deals with a limited set of rights.

• They only get a remedy after you've already suffered the harm.

• This is a fault based system, where a plaintiff has to be able to pin the wrongdoing on someone.

• Needs a defendant with deep pockets.

• Litigation takes a lot of time, is expensive, is risky and is stressful as well.

• There's a question of adequacy of damages.

Tackling a Tort Law Problem Question

• The primary thing that should be taught at law school is not what the law is, but how to apply the law.

• The law changes all the time.

• What will be important is the skills you pick up.

• IRAC (Issue, Rule, Application, Conclusion)

IRAC Breakdown

• Issue is identifying the question you need to answer.

• Rule is how does the law usually deal with this kind of question?

• Application, how would the law likely deal with it in this situation.

• Conclusion, you provide your answer to the question.

• The application step is the most important step.

• An example is presented:

  • Osman is with Mae

  • They get into a heated argument

  • She walks away with Osman's wheelchair leaving him stranded in her car

  • Mae returns 30 minutes later

• Can Osman sue Made for false imprisonment?

• The first question to ask is what false imprisonment is.

• The overall question or issue is whether May has falsely imprisoned Osman.

• The plantiff has to prove that there is a false imprisonment. These are the elements of false imprisonment:

  • The defendant directly and intentionally subjects the plantiff to a total restraint of movement without lawful justification

• These are converted to sub issues, in which you have to go through IRAC all over again for each of them.

• We convert those four elements from those cases into what has to be proved in this case.

• Each element needs to explain the relevant law, cases are statutory, so that's the rule.

• You need to analyze how the law would be applied to the facts at hand.

• Conclude whether that element is establish or not.

• This requires identifying the relevant case law, understand material facts, and reach a conclusion on that specific element.

• If we can establish all four elements, then there's a false imprisonment. If you can only establish three or less, there is no false imprisonment.

Structural Example

• Summarize the 4 elements:

  • Intention

  • According to Radakantaylor intention refers to intention to cause the deprivation of freedom of movement, not intention to unlawfully deprive.

  • Mae took away Osman's wheelchair in frustration,
    >
    knowing he would need it to move out of the car as she was about to help him into the wheelchair before the argument,
    >
    so she knew that he needs it. This suggests her intention to render him unable to leave her car.
    >
    Her motive to calm him down doesn't matter. It is enough that she intended to leave him trapped in the car.

  • A court is likely to find she intended to cause total restraint of his movement which is the first element of false imprisonment.

  • This is rinsed and repeated for the other elements

• In conclusion,

  • Osman can likely prove all four elements, he has a strong claim against May for false imprisonment

• Application is where the most persuasive arguments stand out.

• To make a persuasive argument and analysis in law, you need to be able to interpret and analyze case law, so pre existing case law.

• Then you need to apply that case law to the facts at hand.

• These are the skills that are crucial for you being a lawyer, right, if you want to practice that is, because that's what allows a lawyer to be able to say, ah, well this is what the law is and this is how I think it's going apply in your situation when you