Tort Law – Comprehensive Study Notes

Introduction to Tort Law

• Tort = civil wrong ✔️

  • Governs private disputes; contrast with criminal law (public wrongs)

• Core purposes

  • Compensation (make‐whole)

  • Deterrence of harmful behaviour

  • Allocation & spreading of risk (insurance, alternate schemes)

• Overarching balancing act ↔ freedom to act vs protection from harm

  • Law distinguishes liability by the defendant’s mental culpability: strict liability ▸ negligence ▸ intentional

Torts vs. Crimes

• Tort Law

  • Private law; obligation owed to plaintiff

  • Plaintiff sues defendant ➔ usual remedy = compensatory damages

• Criminal Law

  • Public law; obligation owed to society

  • State prosecutes accused ➔ remedy = punishment (fine, jail)

• Same event may be both (e.g. physical beating = tort of battery + crime of assault)

Torts vs. Contracts

• Primary & secondary obligations in both systems

  • Tort primary duty: do not harm; breach ⇒ \text{damages}_{\text{backward}} (restore pre-tort position)

  • Contract primary duty: keep promises; breach ⇒ \text{damages}_{\text{forward}} (put as if contract performed)

• Key contrasts

  • Source: tort imposed by law; contract is voluntary

  • Privity: contract only binds parties; tort duties owed broadly

  • Risk mgt.: contractual duties known & limitable; tortious risk can surprise defendants

Master Taxonomy of Torts

• Strict Liability

  • No intention & no need to prove negligence

  • E.g. dangerous animals; Rule in Rylands v Fletcher (escape of non-natural use)

• Negligence

  • Carelessness; duty–breach–causation framework

• Intentional Torts (Traditional)

  • Intend physical act; damage irrelevant/assumed (assault, battery, trespass)

• Intentional Torts (Business/Economic)

  • Intend act & harm; economic focus (deceit, defamation, conspiracy)

Remedies in Tort

• Compensatory damages

  • Backward-looking; plaintiff placed as if tort never occurred

  • Limited by remoteness & duty to mitigate

• Punitive damages

  • Exceptional; punish reprehensible conduct

• Nominal damages

  • Symbolic recognition where no quantifiable loss

• Equitable remedy: Injunction ➔ prevent/compel acts

Liability Insurance & Risk Shifting

• Contract where insured pays premium ➔ insurer must

  • Defend claims, and/or

  • Indemnify damages within policy scope

• Insurers control risk through: coverage scope, deductibles, caps, exclusions

• Flow chart

  1. Defendant buys policy

  2. Tort committed inside scope

  3. Insurer pays plaintiff on defendant’s behalf

Vicarious Liability

• One party liable for tort of another (usually employer ↔ employee)

• Justifications: enhanced compensation & deterrence; cost internalisation

• Scope

  • Only for torts committed “in the course of employment” (incl. improper performance of assigned tasks)

  • “Frolics” or major detours exclude liability

• Independent contractors: hiring them can shift risk, but control ≠ IC ➔ may be deemed employee

• Effects

  • Victim can sue employee + employer; employer may seek indemnity (rare)

Alternate Compensation Schemes

• Workers’ Compensation: no‐fault, trade right to sue for guaranteed fund

• No-Fault Auto Insurance (e.g. BC): victims collect benefits without proving fault; limited exceptions for suing

• Comparison

  • Tort: full compensation, deterrence, expensive litigation

  • Schemes: partial compensation, speed & cost efficiency, little deterrence

Intentional Torts – Interference with the Person

Assault

• Intentional creation of reasonable belief of imminent offensive contact

• Elements: belief must be reasonable, imminent, & offensive; actual ability or contact not required

• Purpose: discourages threats, preserves peace

Battery

• Intentional offensive bodily contact

• “Bodily contact” wide (objects attached to body, fluids, medical procedures)

• “Offensive” excludes ordinary social contact (crowded bus) but includes unwanted medical procedures

• Often paired with assault; may occur alone (surprise hit = battery only)

False Imprisonment

• Unjustified confinement within fixed area (physical or psychological)

• Complete barriers; alternative exit defeats claim

• Arrest powers: police need reasonable belief; private citizens need actual commission ➔ wrongful belief = liability

Invasion of Privacy (Evolving)

• No single common-law tort nation-wide, but

  • Related torts: intrusion upon seclusion (ON), misuse of private info, misappropriation of personality

  • Statutory protection (BC, SK, MB) & Criminal Code voyeurism s.162

Malicious Prosecution

• Defendant initiated proceedings out of malice, without reasonable grounds; plaintiff later acquitted

Intentional Torts – Land & Chattels

Trespass to Land

• Intentional interference with land without consent or legal authority

• Customers: implied consent during business hours; can be revoked subject to human-rights law

• Remedies: damages, injunction, removal, reasonable force if arresting trespasser

Interference with Chattels

• Trespass to chattels: intentional interference (taking, destroying, using)

• Conversion: serious interference ⇒ forced sale at market value

• Detinue: wrongful retention; plaintiff entitled to return or value

• Recaption: owner may retake goods using reasonable force

Defences to Intentional Torts

• Complete: Consent (free, informed, express/implied), Legal authority (statute/C.L.), Self-defence & defence of others (reasonable force, imminent threat), Necessity (emergency).

• Partial: Provocation (reduces damages where words/acts cause loss of self-control), Contributory negligence (some jurisdictions allow even for intentional torts).

• Limits: defence of property never justifies lethal force absent personal threat.

Business / Economic Torts

Conspiracy

• \ge 2 defendants agree; if acts lawful ➔ harming plaintiff = primary purpose; if acts unlawful ➔ foreseeability of harm suffices.

Intimidation

• Threat of unlawful act leads victim/3rd party to act against own interests causing plaintiff loss; 2-party or 3-party versions.

Interference with Contractual Relations

• Direct inducement: defendant knowingly causes breach; plaintiff proves contract, knowledge, intent, breach, loss.

• Indirect inducement: plus defendant’s act itself unlawful.

Unlawful Interference with Economic Relations

• Defendant commits civilly actionable wrong against 3rd party intending to injure plaintiff economically.

Deceit (Fraudulent Misrepresentation)

• False statement ▸ defendant knows or is reckless ▸ intends to mislead ▸ plaintiff reasonably relies ▸ loss results.

• Includes half-truths, silence where duty to speak.

Defamation

• False statement lowering plaintiff’s reputation; slander (oral) vs libel (written/recorded).

• Elements: reference to plaintiff, publication to 3rd party, defamatory meaning.

• Defences

  • Justification (truth) – must be entirely true.

  • Absolute privilege (parliamentary, court, spouses).

  • Qualified privilege (duty/interest communication; malice defeats).

  • Public-interest responsible journalism (qualified priv. for media following standards).

  • Fair comment (opinion on matters of public interest; based on facts; honestly held).

• Remedies: damages (compensatory, punitive), injunctions.

Injurious Falsehood (Slander of Title / Quality)

• False statements about property or products causing economic loss; requires falsity, malice, and loss.

Land-Related Torts

Occupiers’ Liability

• Occupier (person in control) owes duty of reasonable care to visitors regarding condition & activities on premises.

• Statutory reforms (BC, AB, MB, NS, ON, PEI): unified duty; special rules for trespassers; warnings may suffice; landlords now liable for repair duties.

Nuisance

• Unreasonable interference with use & enjoyment of land (physical damage, sensory intrusion, non-intrusive e.g. brothel traffic).

• Factors: neighbourhood nature, time, intensity, social utility, motive.

• Defences narrow: statutory authority, consent; “coming to nuisance” ≠ defence.

• Remedies: damages; injunction (balanced against hardship/community interest).

Rule in Rylands v Fletcher

• Strict liability where non-natural use of land & escape causes damage.

• Defences: consent, act of God/3rd party, statutory authority.

Comparative Table (Land)

• Occupiers’ liability = careless protection of visitors

• Nuisance = unreasonable interference

• Rylands = strict liability escape

• Trespass = intentional entry

Negligence (Core Tort)

Definition

• Carelessness causing injury; most “plastic” (adaptable) tort.

Three Elements (Plaintiff’s Proof)

1. Duty of Care

2. Breach of Standard of Care

3. Causation of Harm (fact + legal)

Duty of Care

• Precedent establishes automatic duties (driver ➔ road users).

• Novel situations: Anns/Cooper test

  1. Reasonable foreseeability of harm

  2. Proximity between parties

  3. Policy reasons to negate the duty?

• Special regime for negligent statements: foreseeability + intended reliance by indeterminate group ⇒ elevated safeguards (disclaimers, limited circulation).

Standard of Care

• Reasonable person test (objective; assessed at time, no hindsight).

• Factors: risk magnitude, likelihood, social utility, cost of precautions.

• Professionals: reasonable professional in field; specialists held to expert standard; approved practice & statutes may shield.

• Product liability: Canadian approach = negligence (careless manufacture, design, or failure to warn); US = strict liability.

Causation

• Two stages

  1. Factual: "but-for" test (balance of probabilities >50\%). Alternative “material contribution” where but-for unworkable.

  2. Legal: remoteness (was type of harm reasonably foreseeable?)

• Doctrines

  • Thin skull: take plaintiff as found; if some harm foreseeable, liable for full extent.

  • Intervening acts: breaks chain if unforeseeable & independent.

Defences to Negligence

• Contributory Negligence: plaintiff’s carelessness; court apportions fault (damages\;\times\;\%\,\text{defendant})

• Voluntary Assumption of Risk (Volenti): plaintiff freely accepted physical & legal risk; complete bar.

• Illegality (Ex Turpi): plaintiff injured while committing illegal act undermining justice system; complete bar.

Practical / Ethical / Policy Connections

• Tort law plays socio-economic role: balancing safety and innovation.

• Vicarious liability & insurance internalise costs to enterprise ➔ incentivise safe practices.

• Alternate compensation schemes illustrate policy choice to favour quick, broad relief over deterrence.

• Emerging privacy torts respond to technological change, balancing speech vs dignity.

• Negligence’s flexibility (“plasticity”) allows courts to manage new risks (AI, autonomous vehicles, cyber threats) by adapting duty, standard, causation analysis.

Key Numerical / Legal Tests (Formulaic Summary)

• Balance of probabilities: P(\text{causation}) \ge 0.51

• Joint & several liability: plaintiff may recover 100\% against any responsible defendant; contribution proceedings allocate shares later.

• Damages mitigation: \text{Loss}{recoverable} = \text{Loss}{gross} - \text{Avoidable}\;\text{Loss}

• Contributory negligence: \text{Damages}{final} = \text{Total}\,\times(1-\%{plaintiff\,fault})

Exam “Take-Away” Prompts (Self-Check)

• Differentiate criminal assault vs tortious assault (proof, parties, remedy).

• How do levels of intention change elements & defences?

• Identify when defamation can arise on private social‐media posts.

• Explain why negligence is considered the most plastic tort.