Intention Torts and Negligence

Question 1

What is the nature of tort?

Answer 1

A social wrong (not necessarily a crime)
A civil wrong (between individuals)
When an intentional or careless act harms another
Injured party usually sues for monetary compensation
Crimes are social wrongs that affect society as a whole
Some crimes are also torts
A tort is an inherently wrongful act that causes injury to another
Tort law changes behaviour – simply throuhg the threat of liability

Question 2

What are the categories of torts?

Answer 2

Intentional
-Deliberate acts that cause injury or loss
Unintentional
-Careless or negligent acts that cause injury or loss

Question 3

What are some of the judicial remedies for torts?

Answer 3

Courts will compensate for:
Physical, economic, emotional and mental injuries
Mental disorder, but not simply mental or emotional distress
Court attempts to restore the victim to original position
Special damages
General damages
Punitive (Exemplary) damages

Question 4

What is a vicarious liability?

Answer 4

Liability without personal fault
Imposed on employers when they are held liable for torts committed by employees during the course of their employment
Or by statute, such as a vehicle owner being liable for the use of it by another person (ex: driving your mom’s or dad’s car and getting into an accident)

Question 5

What are some of the examples of intentional torts?

Answer 5

Examples:
Trespass to Person (Assault and battery)
Trespass to Land
False imprisonment
Nuisance
Defamation
Courts may award punitive damages (particularly when conduct eggregious)

Question 6

What are the types of trespass to a person are there?

Answer 6

Assault – where there is fear of contact
Battery – the least touching of another without consent (ex: Bettel v. Yim)
Defences
1. Accident not mistake
2. Consent (informed)
3. Self-defence (reasonable force)

Question 7

What is trespass to land?

Answer 7

Being on another’s land without authority
Permission implied for business offering public services
Occupier owes a lesser duty of care to trespassers than those there with authority
Continuing trespass remedied by injunction

Question 8

What is trespass to chattels, Conversion, and detinue?

Answer 8

Chattels – Personal Property (goods)
(Land – Real Property)
Actions:
Conversion- “a voluntary act by one person inconsistent with the ownership rights of another.”
Detinue - an action to recover for the wrongful taking of personal property
claimant must first prove that he had better right to possession of thechattelthan the defendant and
the defendant refused to return the chattel once demanded by the claimant.

Question 9

What is false imprisonment?

Answer 9

The unlawful and intentional restraint of persons against their will
Restraint must be total
Victim may submit, or be forced to comply
Defence – Citizens arrest: restraint may be justified if persons have done something for which they may be arrested (see section 494 of CCC)
Ex: Shoplifting situation in business

Question 10

What is malicious prosecution?

Answer 10

Prosecution abandoned or “not guilty”
Prosecution motivated by malice
No reasonable grounds to have originally proceeded with criminal action

Question 11

What is private nuisance?

Answer 11

Public nuisance affects public in general (government plaintiff)
Private nuisance interferes with others’ use of their property
Strict liability for inherently dangerous situations or products (ex: gulf oil spill; chemical spill in water supply of city by mining co.)

Question 12

What is defamation?

Answer 12

A detrimental false statement about someone
Must be published or broadcast
Slander- spoken defamation
Libel – written defamation
Defamation is actionable when published/broadcast on the internet (ex: Braintech v. Kostiuk case)

Question 13

What are defences to defamation?

Answer 13

Truth
Absolute privilege- where statements are made during, incidental to, and in the processing and furtherance of judicial or quasi-judicial proceedings or where statements are made in the proceeding of a legislative assembly
Qualified privilege- persons in positions of authority or trust can make statements or relay or report statements that would be considered slander or lible if made by anyone else-Supervisor evaluation of employee reported to his boss
Fair comment - comment on a matter of public interest; recognizable as an opinion rather than a statement of fact, and could be drawn from the known facts.
Public interest responsible journalism- where the media or other persons publish information to the general public, and where the facts turn out to be untrue. Provided the subject matter of the publication meets a test of being of “public interest” and the defendant exercises due diligence prior to publication to ensure that the facts are accurate

Question 14

What are some of the other torts affecting businesses?

Answer 14

Inducing breach of contract
Commonly luring people to breach their current employment or supply contracts
Interference with economic relations
Intimidation
Intentional infliction of mental suffering
Harassment 
Deceit (Fraudulent misrepresentation)
Conspiracy
To injure business interests
Passing off
knockoffs
Misuse of confidential information
Breach of confidence (may be to solicit customers)

Question 15

How is privacy protected?

Answer 15

Privacy protection provided by statute

PIPEDA- Regulates collection and use of private information

Question 16

What is negligence?

Answer 16

Involves inadvertent (non-intentional), careless conduct that causes injury or loss to another
Important area of tort liability for professionals-lawyers, doctors,
accountants, architects and other professionals another

Question 17

Which elements need to be proven for a negligence case?

Answer 17

A: A duty to exercise care

• B: Breach of the standard of care
• C: Causation - The act caused the injury
• D: Damages - Victim suffered a loss

Question 18

How to determine is the duty of care os owed?

Answer 18

To determine if Duty of care is owed to anyone, need to apply the reasonable foreseeability test
- Duty of care owed to anyone we can reasonably foresee would be harmed by our actions
Donoghue v. Stevenson established test to determine if duty of care is owed
- Anns v. Merton London Burough Council case led to a further refinement of the test-Now a two-stage test
First part: Degree of proximity between parties
Second part: Any reasons to allow court to modify nature of duty?
Ex: Driving in heavy traffic on Hastings Street
Ex: Throwing remote up in the air in a crowded room
Ex: pot hole on the street-duty of municipality

Question 19

Explain the Donoghue v. Stevenson case?

Answer 19

• On the 26 August, 1928, Donoghue and a friend were at a cafe in Paisley, Scotland.
• Donoghue’s friend ordered and paid for her drink- a ginger beer.
• The cafe they were at purchased the ginger beer from a distributor that purchased it from a manufacturer called Stevenson.
• The ginger beer came in a dark bottle, and the contents were not visible from the outside.
• Donoghue drank some of the contents and her friend lifted the bottle to
pour the remainder of the ginger beer into the glass.
• That is when they noticed, dropping out of the bottle and into the glass, remains of a snail in a state of decomposition.
• Donoghue suffered a sever shock and later complained of stomach pain and her doctor diagnosed her as having
gastroenteritis.
• Donoghue sued Stevenson, the manufacturer of the drink, for negligence. She claimed 500 pounds in damages.
• Now, Donoghue could not sue Stevenson for breach of
contract, because her friend had purchased the drink for
her.
• Instead, her lawyers argued that Stevenson, the manufacturer, had breached a duty of care to his consumers and had caused injury through negligence

Question 20

What is Misfeasance and Nonfeasance?

Answer 20

• Misfeasance
- An act that causes harm to another (wrongdoing)
- Court will provide remedy
• Nonfeasance
- A failure to prevent an injury
- Courts reluctant to provide remedy
Nonfeasance will lead to liability only where you can show that a party had a special relationship with the victim where a duty of care arose and the tortfeasor failed to act

Question 21

What is Good Samaritan Act?

Answer 21

No liability for emergency aid unless gross negligence
1. A person who renders emergency medical services or aid to an ill, injured or unconscious person, at the immediate scene of an accident oremergency that has caused the illness, injury or unconsciousness, is not liable for damages for injury to or death of that person caused by the person’s act or omission in rendering the medical services or aid unless that person is grossly negligent.
Exceptions
2 Section 1 does not apply if the person rendering the medical services or aid
(a) is employed expressly for that purpose, or
(b) does so with a view to gain.

Question 22

How do you determine Breach of standard of care?

Answer 22

Once duty of care established and there is no policy reason why it should be limited or not enforced, next look at the 2nd element:
Was there a breach of the duty/the standard of care?
• Ask question: What would a “reasonable person” have done in the circumstances?
“Reasonable person” is a prudent/careful person, in possession of all the relevant facts, exercising care
- Reasonable person is: Not the average person; Not the perfect person; Does not exist in reality
The greater the risk of injury the higher the standard of
care under this second element

Question 23

What is the standard of conduct expected of a

professional?

Answer 23

Professionals are required to have degress of expertise of a reasonable professional in that field:
• Reasonable doctor
• Reasonable lawyer
• Reasonable hand gliding pilot;
• Reasonable accountant
• Reasonable bus driver
Inexperience is no defence-not a different standard for a
junior lawyer, doctor, dentist, architect.
• Standard practice of the profession may not be enough-
taking short cuts because that is what other lawyers/doctors/dentists do. Prudent professional test not average professional.
• Professionals [exercising special skills may also owe a
duty of care for pure economic loss suffered by a third-
party

Question 24

What is causation and how do you prove it?

Answer 24

After showing breach of the duty of care, next must show that the breach caused of injury or damages- have to show causation.
• Proving causation involves two steps- have to show physical causation and legal causation.
• Physical causation involves :
“But for” test - “but for” the conduct of the plaintiff, no injury would have resulted (Physical causation)—If answer yes- then you have established physical causation.
• Legal Causation involves the Remoteness test - Whether the specific type of injury suffered was reasonably foreseeable (Legal causation)
Mustapha case-over the page
• Thin skull rule. Take victims as they are found

Question 25

What are demages?

Answer 25

Unlike intentional torts, which may be actionable without specific damage, negligence requires a loss to person or property

Question 26

What are some of the defences of negligence?

Answer 26

Contributory negligence
- If plaintiff contributed to own loss, he/she must bear
some responsibility [e.g. Did not wear a seatbelt in the
accident]
- Most jurisdictions have a Negligence Act
that allows courts to assign proportional liability among plaintiff and defendants
Voluntary assumption of risk also known as Volenti non fit injuria. Persons who volunteer to enter a situation where the risk of injury is obvious; and accept the legal risk that they are waiving their claim for damages may not recover damages
• Remoteness [already discussed]