Tort Law

Tort Law

Brittany Leeman, Karen Casey and Allie Cooper

February 16, 2006

TORT: the word “tort” means a wrongful act, an injury. A tort is a civil (rather than a criminal) wrong done by one person to another person’s body, property or reputation; intentionally or negligently; A civil wrong which can be redressed by awarding damages.

Tort Law has two aims; Compensation – idea to put victim back in financial position was in before the tort, and Deterrence – general and specific (wrong doer and public) deter the defendant and others from committing the same harms.

Distinction between tortfeasors and criminals: criminal and tort law both concern wrongs. Many wrongs can lead to both criminal charge and a cause of action in tort. The real distinction between a crime and a tort lies not in the nature of the wrong itself but in how the person who committed the wrong is dealt with; damages vs. sanctions.

Torts fall into three general categories: intentional torts (e.g., intentionally hitting a person); negligent torts (causing an accident by acting negligently); and strict liability torts (e.g., liability for making and selling defective products.)

TYPES OF TORTS

Negligence – a failure to exercise a degree of care that a reasonable person would give; the idea of the “neighbour principle” – everyone owes a duty of care to their neighbour. In this context a neighbour is anyone who may be injuried by a person’s negligent act. « everyone owes a duty to take reasonable care for the safety of anyone who might foreseeablybe harmed by the person’s actions ». Four defences to negligence :

1. Contributory Negligence – is a partial defense to negligence in which the amount of damages the defendant is ordered to pay is reduced because the injury was partly the victim’s own fault as well as the defendant’s fault. when there is a contributory effort of both the victim and the defendant.

2. Limitation Period – There is a limited amount of time the victim has to file a tort action to recover damages in tort. Limits are found under the Limitations Act of each province. There are some circumstances in which a “discoverability principle” applies in which the limitation period begins when the victim becomes aware of the harm. Ie: childhood sexual abuse.

3. Voluntary Assumption of Risk – means no harm is done to a person who is willing. A plantiff gives up the ability to sue for damages if they accept the risk of the activity.

4. Illegality – means an action does not arise out of a shameful cause. The purpose is to prevent a person from profiting from a wrongful act or being reimbursed for a criminal penalty.

Vicarious Liability- the person who is not in breach of any duty is nevertheless liable for torts committed by someone else (ie. the employer of a company)

Trespass – Wrongful entry onto the land, property, person or right of another. Trespass may be to land, to goods, or to the person.

Trespass to land – Trespass is the wrongful entry onto the land of another or causing an object or person to wrongfully enter the land of another or failing to remove an object from the land of another which that person (the defendant) is under a legal duty to remove. The wrong exists without a showing of damages.

Trespass to the person – Is an anarchaic form for a claim of battery.

Trespass to chattels (goods) – Intentional interference with a chattel in possession of another which results in any of the following: permanent loss of the chattel, or temporary loss of the chattel but for a long period of time, or damage to the quality or fitness of the chattel, or harm to the owner of the chattel resulting from its deprivation.

Nuisance- a situation where one’s rights have been vindicated and where damages can be offered for compensation; risks must be protected even if no damage was suffered and no fault committed; generally only compensable if due to a fault of some kind (ie. noise infringing on one’s ability to sleep)

Conversion- like tort of trespass but instead of protecting possession it protects ownership. It is concerned with loss of goods rather than damage of them

Defamation- publicly humiliating a person in order to cause them harm or ruin their reputation (libel and slander)

à ‘A’ is liable for saying anything to ‘C’ against ‘B’ which would be apt to make an average citizen think worse of the latter

Economic- economic harm to a person is intended by the defendant or virtually certain to occur as a result of their deliberate conduct

à the fact that competition must be encouraged and strikes permitted shows that there are at least some situations in which it must be lawful to cause deliberate harm. And so it must be justified that the defendant had a good reason for doing what they did and the claimant must show more than the mere fact that the defendant intended to cause harm

INTENTIONAL TORTS

Battery: To constitute a battery need 3 elements:

Intent
Harmful or offensive conduct
Physical conduct

Assault: To constitute an assault need 2 elements:

a. Intent

b. Apprehension of imminent harmful or offensive conduct

False Imprisonment:

a. Do not need proof of damage

b. Have to prove direct imprisonment

c. Complete restriction of personal liberty – physical and/or psychological (ie: psychological or physical threat, public embarassment)

Intentional Infliction of Mental Harm:

a. Outrageous, extreme conduct – single or pattern

b. Intent to harm victim

c. Nervous shock: victim had to prove harm occurred because of conduct

DEFENCES OF INTENTIONAL TORTS

Defenses can be:

Complete: nulls damages

Consent
Self-Defense
Defense of others (third party)
Defense of property
Legal Authority

Partial: reduces damages

Provocation

1. Consent: can be expressed or implied

Sport consent: because of nature of sport, when play you are consenting to possible injuries. If happens outside of the perimeters/rules of the game, then no consent because not reasonable foreseeable.

2. Self Defense: has to be immediate and reasonable, and no possibility of an exist.

3. Defense of third party: same as self defense

4. Defense of property:

a. Have to ask to leave if peacefully on property (not a trying to break in, not violent)

If refuse to leave, can then call police or use force to remove. The purpose of the force is to remove person from the property, force should not be lethal.

5. Legal Authority: A private citizen can arrest someone if they find a person committing an indictable offense or believe on reasonable grounds a person committed an indictable offense and is being pursued.

6. Provocation: have to prove some provoking act sufficient to cause lose of control. Can be words, gestures. Has to be immediate.

DAMAGES: damages are given as compensation for the tort; they are normally in the form of money.

--Pecuniary damages: Idea to put back in financial position was in before the accident. Look at future care (ie. standard of care, life expectancy, contingencies of life, cost of special equipment) and for perspective loss of income (ie. loss of future earnings, length of working life, contingencies of life)

--Non-pecuniary/general damages: compensation for physical and mental suffering; loss of expectation of life or enjoyment of life; described by the court as compensation for deprivation of liberty, public humiliation and loss of reputation and mental anguish, physical and mental pain and suffering.

--Punitive damages: may be awarded when misconduct is malicious, oppressive and offends the court’s sense of decency. The aim is to punish the defendant not compensate the plaintiff to act as a deterrent and should only be awarded when other damages are not enough to act as punishment or deterrent.

CASE EXAMPLES:

Negligence: Bolten v. Stone: a situation with cricket balls and the possibility of a cricket ball flying into the local street around the cricket field and causing harm to a civilian. A woman was injured from such a situation and it was investigated as to whether the cricket players were culpable for her injuries. It was found that the injury and the chance of another injury occurring was very unusual and is not a direct risk that should be guarded against. Therefore, it was found that no one was culpable for the woman’s injuries because there was no way that they could have been prevented and it was merely a freak accident.

Nuisance: Appleby v. Erie Tobacco Co.: From the manufacturing of tobacco an odour arose from the “processes of steaming, steeping, and stewing which it undergoes, and the boiling of sugar, licorice, and other ingredients” in which the odours cannot be prevented. The odour caused severe discomfort to the surrounding neighbours and they demanded that it to stopped. Because of the discomfort that the odour was causing most of the neighbours, the court found that the Erie Tobacco Co. would have to cease production in the manner that they were doing previously for six months are try to think or a new way to produce the tobacco without that smell. If they could not do this, then they would simply have to remove that part from their business.

Hypothetical Tort Situations: Class Activity

1. Paul and Leah have moved into their first home in a lovely neighbourhood. They both work full time and have to wake up at 5am every morning, except for weekends. Lately, they have not been able to get a good night’s sleep because of the constant barking that the neighbour’s dog, Bruce, makes. They have asked their neighbours several times to try to get Bruce to stop barking so late at night, but the barking has not stopped. They are almost at their wits end and are thinking of suing their neighbours.

Are there any torts committed here? And what are they?