Tort Law

Tort Law

1. Intentional Torts

   • Trespass
     • The act of entering someones property without consent
     • Elements:
       • 1. Intention
       • 2. Entering property
       • 3. without consent
       • 4. causing harm
   • Assault and Battery
     • Assualt
       • The threat of violence to a person
     • Battery
       • Unlawful touching of another
     • Usually found together
       • Only battery: surgeon doing procudure without consent
   • Infliction of mental distress
     • Recognizable physical or psychopathological harm must occur
   • False Imprisonment
     • unlawfully restraining or confining another person
       • Ex. "stop Thief"
   • Malicious Prosecution
     • Reporting a person to the police when there is no good reason to believe that person committed a crime
   • Defamation
     • making an untrue statement that causes injury to the reputation of another
       • Slander = spoken
       • Libel = written
       • Elements
         • 1. Intent
         • 2. Statement is made
         • 3. Statement is false
         • 4. Statement is published to a 3rd party
         • 5. Statement must cause “genuine and significant injury” to the reputation of the plaintiff.
     • Defences
       • Statement was true
       • Qualified privilege
         • Made in good faith
       • Responsible Communication on Matters of Public Interest
         • Facts
   • Defences
     • Consent
     • Self-Defence
     • Necessity
     • Voliton
     • Capacity

2. Development of Tort

   • Strict Liability
     • Liability that is imposed based upon causation regardless of fault
     • No need to prove fault
     • The requirement of a writ
     • Strict Liability torts:
       • Public Nusiance
         • interference with the lawful use of public lands and is often quasi-criminal in nature with action taken against the tortfeasor by the government
           • Ex. Blocking Public Roads
       • Private Nusiance
         • interference with an occupier’s use and enjoyment of his/her land
           • Ex. Noise Complaint
   • Tort it fault based
   • Today:
     • the conduct of the tortfeasor must be taken into consideration
     • The wrong committed must still be one recognized in law
     • The wrong committed must cause harm to the injured party

3. Unintentional

   • Negligence
     • Carless causing harm to the person or property of another
     • Three part test
       • 1. Does this defendant owe this plaintiff a duty of care?
         • the legal duty impaired on everyone, must be reasonably forseeable
         • Good neighbour principle
           • Everyone has a duty to not injure their neighbour
         • Neighbour in law
           • persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question
         • Test
           • 1.Is there a sufficiently close relationship between the parties so that, in the reasonable contemplation of the defendant, carelessness on its part might cause damage to that person?
           • 2. are there any considerations which ought to negative or limit
       • 2. Did the defendant breach the duty of care by falling below the standard of care?
         • The reasonable ordinary person on the Yonge Street subway
         • Special Standards
           • Specific Profession
           • Fiduciary
           • Children
           • Professionals
         • Factors
           • Likelihood of harm
           • Severity
           • Social utility
           • Feasibility of eliminating risk
       • 3. Did this duty of care cause injury to the Plaintiff?
         • But/for test
         • Doesn't has to be the sole cause
         • Remoteness
           • How unrelated from conduct
     • Vicarious Liability
       • Employers liable for employees
       • Employers has insurance and ability to pay
     • Burden of proof
       • Once the plaintiff has shown that the defendant has committed the tort,then the burden shifts to the defendant to show that they did not commit the tort, or that they have a valid defence
     • Circumstantial Evidence Rule
       • show that that the defendant’s negligence was the mostly likely cause of the injury
     • Defences
       • Contributory
         • Plaintiff can contribute to the incident that caused the injury
         • The plaintiff can expose themselves to a risk of injury
         • mitigation
       • Voluntary Assumption of Risk
         • The plaintiff knew of the risks and voluntarily assumed that risk
       • Consent
         • Where the plaintiff consents to the tortious act, then s/he cannot later claim compensation

4. Unintentional Tort Continued

   • Product Liability
     • Ongoing duty to warn
       • Dangerous Products
       • Defects
       • Tech Advancements
   • Occupiers Liability
     • Standard of care owed to those on your property
       • Invitee and Licensee
       • Trespassers
         • Humanity
       • Where the use of the land is to encourage recreational activity, the user of the premises willingly assumes the risk
   • Professional Liability
     • Specialized knowledge is held to higher standard
   • Fiduciary Duty
     • Relationship of trust
     • 3 part test
       • 1.A fiduciary has the scope for the exercise of some discretion or power;
       • 2.A fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests;
       • 3. The beneficiary is peculiarly vulnerable to, or at the mercy of, the fiduciary holding the power or discretion
   • Negligent misreperstentation
     • test
       • 1. statement is made
       • 2. statement is false
       • 3. The maker of the statement must owe the hearer of the statement a duty of care
       • 4.The hearer of the statement must act on the statement
       • 5. Loss suffered

5. Business related torts

   • Inducing Breach of Contract
   • Unlawful Interference with Economic Relations
   • Product Defamation
   • Passing-off