Midterm

Question 1

The development of tort law

Answer 1

The purpose of tort law is to compensate victims for harm caused by the activities of others.

Originally, anyone who caused injury on another had to compensate for that injury and it was never taken into consideration why that injured someone or under what circumstances. This type of liability is called strict Liability

Overtime people realized that compensation should only be given if the injurer was in the wrong

Today tort law involves only two principles, the fault of the defendant and the causation of the harm.

Question 2

What is fault?

Answer 2

refers to blameworthy conduct, conduct that in the eyes of the law is unjustifiable because it intentionally or carelessly disregards to the interests of others.

Question 3

How does public policy play into torts?

Answer 3

whether a tort should rely on fault, strict liability or other principles is a matter concerning public policy.

Often if there is strict liability attached to an action, it is clearly stated in a statute.

The government can also adopt government run compensation schemes such as making making no-fault insurance compulsory for automobiles

Question 4

What is vicarious liability?

Answer 4

An employer is held responsible for a tort committed by an employee. This is called Vicarious Liability

There are two public policy reasons for taking this approach…

1. employees often have limited assets available to pay compensation for the potential harm they can cause
2. it seems only fair tha the person who makes the profit from an activity should also be liable for any loss

Question 5

What are intentional Torts

Answer 5

Intentional Torts – are those where the activity or conduct is done deliberately not by accident. Harm or damage must occur for any tort to be actionable

Question 6

Assault and Battery

Answer 6

One of the oldest torts was ‘trespass to the person’ which is known today as assault (the threat of violence) and battery (the actual physical contract)

Not so common against attackers but more so against doctors and within contact sports

The only defence is to establish that there was consent given or implied

Question 7

Nuisance

Answer 7

There are two nuisance torts

Public Nuisance – protects the public interest and access to public places (things like blocking roads etc)

Private Nuisance - protects an occupiers rights to the reaosnable use and enjoyment of its land without substantial interference from direct or indirect activity on neighbouring property
 I.E. excessive noise, contiaminating liquied ported into rivers ect.

Question 8

False Imprisonment

Answer 8

False imprisonment – is the tort that is most applicable to shoplifting in the retail business. It covers intentional restraining a person, without lawful justification, either by causing his confinement or by preventing him from leaving his location.

False Arrest – similar to false imprisonment except with the added element of holding the victim with the intention of turning him over to the police for prosection.
o However, you are not liable if you suspect someone, call the police and it turns out they haven’t committed a crime

Question 9

Malicous Prosecution

Answer 9

• False claims can attract liability for malicious prosection if there is not honest belief that a crime was comitted.
  o The elements are…
  1. unsuccessful charges against the plaintiff
  2. Initiated by the defendant
  3. Without reasonable or probable ground
  4. With malice or other improper purpose

Question 10

Defamation

Answer 10

The two defimation tors are libel (written defamation) and slander (spoken defamation). In both torts it involves making a false or insulting statement that causes injury to the private, professional or business reputation of another person.

Question 11

Defence against defamation

Answer 11

o If it is true,
o If it is under absolute privilege
(Spoken in parliament, royal commissions and law courts and inquests. )
o If Qualified privileged applies
(if you are asked to write a reference letter for someone.)

Question 12

Other Intentional Torts Related to business

Answer 12

• The tort of unlawful interference with economic relations also involves three parties. Business A commits an unlawful act against B in order to hurt C’s business.
• A person commits the tort of product defamation when he intentionally makes false and disparaging statements about the products of another person.

inducing breach of contract
o I.E. Usually if A convinces B to break his contract with C, C will sue B for the breach of contract.

Question 13

Unintentional Torts

Answer 13

• these are torts where harm is caused by accidental behaviour

Question 14

Negligence

Answer 14

• The concept of negligence is quite simple: anyone who carelessly causes injury to another should compensate the victim for that injury

Question 15

Elements of negligence

Answer 15

o 1. The defendant owed the plaintiff a duty of care

o 2. The defendant breached the required standard of care

o 3. The plaintiff suffered injury or damage

o 4. The defendant’s conduct caused the plaintiff’s damage.

Question 16

How do you determine a duty of care

Answer 16

Through proximity (closeness) and the foreseeability of the event causing injuring happening

Question 17

How do you determine causation

Answer 17

Using the ‘but for’ test

Question 18

How do you determine the standard of care?

Answer 18

This is based on a reasonable person in life circumstances

Question 19

What are some defences to negligence?

Answer 19

The defence can argue that there was contributory negligence

There is also the defence of a voluntary assumption of risk taken by the plaintiff. It can be used when the plaintiff was aware fo the risk of harm prior to undertaking the activity and consented to it. HOWEVER, the challenge is that the EXACT risk must be desrcibed.

Question 20

Product Liability

Answer 20

the liability of manufacturers for injury or loss caused by defects in their products: product liability. The elements are the same as negligence and this is used to close the gap or proximity between vendor and consumer

Question 21

Inherently dangerous products

Answer 21

For inheriently dangerous prododucts there is a duty to warn

Question 22

Occupiers liability

Answer 22

• the liability of occupants for injury or loss suffered by visitors to their premises.
  o Occupiers physically or legally controll the premises, there can be more than one occupier
• The duty is owed to three separate groups

o Invitees
 The highest duty was owed to an invitee —that is, a person permitted by the occupier to enter for business purposes (for example, a shopper)

o Licensees
 The duty owed to a licensee —any other visitor entering with the express or implied permission of the occupier—was simply to remove concealed dangers of which the occupier had actual knowledge.

o Trespasser
 A duty is still owed to a trespasser, but the standard of care that must be met is lower than that for expected visitors. It is minimal—the occupier must not set out deliberately to harm the trespasser or recklessly disregard the possibility that his acts might injure a trespasser

Question 23

Remedies

Answer 23

the usual remedy for a tort (intentional or unintentional) is an award of a sum of money, known as damages , to compensate for physical and economic losses.

The object of awarding damages is not to punish the wrongdoer, though punitive damages may be awarded in extreme cases to show the court’s disapproval of intentional conduct, such as assault, libel or malicious prosecution

There are two types of damages…
o Special damages refer to monetary or pecuniary items that have fixed costs and can be more or less accurately
 calculated—medical bills, the cost of repairing a car, or actual lost wages.
o General damages include less precise, more speculative items,

• Courts may also grant an injunction — that is, order the defendant to refrain from committing further acts of a similar nature under threat of imprisonment for contempt of court.

Question 24

Liability of Professionals

Answer 24

• Liability arises from three relationships, generating multiple causes of action
  o The contractual relationships generates a breach of contract cause of action
  o The fiduciary relationship generates a breach of ficduciary duty
  o The tort of negligent misrepresentation is available when a tort duty of care is owed.

Question 25

What is a fiduciary duty?

Answer 25

Fiduciary Duty – is a high duty of care imposed on a person who stands in a special relationship of trust to another.Liability for breach of a fiduciary obligation may arise even in the absense of negligence.
o A fiducarity must…
 Act honestly, in good faith, and only in the best interests of the client;
 Avoid all conflicts of interest; and
 Account for all property held or administered on behalf of the beneficiary

Question 26

How to establish if a fiduciary relationship exists

Answer 26

o 1. The fiduciary (often a professional) understakes to act in the best intrest of the beneficiary (often the client)
o 2. The beneficiary is vulnerable to or at the mercy of the fiduciary’s control or discretion.
o 3. A legal or practical interest of the beneficiary could be harmed by the fiduciary’s exercise of discretion or control.

-If a fiducairy relationship exists, the law imposes additional obligations on the professional beyond those expressly states in the contract or required under tort law. The professional must…
o Act honestly, in good faith, and only in the best interests of the client;
o avoid all conflicts of interest; and
o account for all property held or administered on behalf of that beneficiary.

Question 27

How to establish fiduciary liability

Answer 27

first, establish a fiduciary relationship

Second, you must determine that the professionals relationship breaches the fiduciaries obligations

Question 28

What is statutory liability

Answer 28

• Provincial legislation sometimes creates a statutory cause of action for damages arising from misrepresentations.

Question 29

Choosing a cause of action

Answer 29

• Does it matter whether the client sues for breach of contract, breach of fiduciary duty, or negligence?
  o It may matter since the eveidence may fit into one cause of action better than another, time limits for certain actions are also important to consider

Question 30

Fraudulent Liability (tort liability)

Answer 30

A misrepersentation is an untrue statement. The misrepresentation is fraudulent and amounts to the intentional tort of deceit. if someone reasonable relied on this information and then suffered as a result, they can sue for their damages

The tort of deceit may also be committed when a person deliberately conceals or withholds information.

Decite, also known as fraudulent misrepresentation , requires at least some knowledge or willful disregard for the falseness of the information. The unintentional tort of negligent misrepresentation does not require knowledge of the falseness of the information, only carelessness in its creation.

Question 31

What are the elements of the tort of deceit?

Answer 31

o 1. a false representation is made by the defendant;
o 2. the defendant has some level of knowledge of the falseness(actual or recklessness);
o 3. the false representation causes the plaintiff to act; and
o 4. the plaintiff’s actions result in a loss.

Question 32

What is negligent misrepresentation ?

Answer 32

Negligent misrepresentation is the unintentional tort of negligence modified to accommodate the very common situation where poor advice leads to financial loss.

This is a harder case to form since information passes so quickly from one person to another, and it is the listener’s actions after hearing the advice that give rise to the economic loss.

Question 33

Elements for Negligent misrepresentation

Answer 33

o 1. there must be a duty of care based on a “special relationship” between the representor and the representee;
o 2. the representation in question must be untrue, inaccurate, or misleading;
o 3. the representor must have acted negligently in making the misrepresentation—that is, he or she must have fallen below the standard of care required of a professional making such a representation;
o 4. the representee must have reasonably relied on the negligent misrepresentation; and
o 5. the reliance must have been detrimental to the representee, that is, damages resulted

Question 34

Accuracy of a statement

Answer 34

Professionals often provide expert opinions, These opinions or “value judgments” are considered facts when expressed by an expert but are more difficult to prove wrong.

If the statement is proven wrong in future it doesn’t matter since the accuracy of the statement is assessed at the time the information was given.

This also does not apply to opinions of the future.

Question 35

The standard of care for professionals

Answer 35

The courts will normally consider multiple sources of evidence in determining what those standards are. Many professions publish a code of conduct for their members or guidelines to be followed in particular types of work. However, sometimes just complying by normal professional standards is not enough (I.E. sometimes a professional undertakes a task that is beyond the usual skills of her profession; she cannot then rely on the normal professional standard. )

The professional is held to the duty of care of a reasonable professional in the field.

Question 36

Reliance and detriment

Answer 36

The client reslshaip is based on reliance but the question is presented if the reliance by the client was reasonable. The advice must be used by the plaintiff to make the decision that triggered the loss, and it must be reasonable for him to do so in the circumstances.

It can be reasonable to rely on a statement but negligent to rely exclusively upon it.

Finally, a loss must be caused by acting upon the information.

Question 37

The role and nature of a contract

Answer 37

The most populare description of a Contract is namely that it is a promise or set of promises the law will enforce.
o There are four basic requirements to form an enforceable contract
 Offer
 Acceptance
 Consideration
 Intention

Question 38

The Nature of an Offer

Answer 38

An Offer is a description of a promse or set of promises one party (The Offeror) is willing to make, subject to the willingness of the other party, the offeree, to agree to the same proccess

Question 39

The communication of an offer

Answer 39

The form of an offer is typically not important as long as it is heard and understood.
o Most offers are oral or written but sometimes it can be physical like a cab driver opening the door to his car for you.

The offeree has to just be aware of an offer if they want to fully accept it

HOWEVER, sometimes goods and services can be provided to your without your request and it is your choice to reject then or not.

Question 40

Written Offers

Answer 40

• One type of written offer is a standard form contract which is often used by businesses that sell to the general public such as tickets to theatres or airlines, hotel bookings etc.

Typically the offeree cannot negotiate or change the terms

-Courts will typcally give affect to these terms of commercial contracts freely entered into UNLESS if there was fruad and misrepersentation then the court must asks what steps need to be taken to bring it to the customers attention, if these steps were inssificient then you are not bound to the contract.

Question 41

4 protections against a standard form contract

Answer 41

1. First, if the business falls within an area regulated by a government board, the terms of its contracts are subject to board approval.
2. Specific types of agreements may be subject to legislation
3. Segments of the public such as consumers are offered special protections
4. in the vast range of unregulated activity, the public receives only as much protection as the courts can find in the general law of contract.

Question 42

What is a lapse

Answer 42

-When an offer has lapsed, the offeree can no longer accept it even if he is unaware that it has lapsed; it has become void and no longer exists. An offer may lapse in any of the following ways:

o 1. when the offeree fails to accept within a time specified in the offer
o 2. when the offeree fails to accept within a reasonable time, if the offer has not specified any time limit
o 3. when either of the parties dies or becomes insane prior to acceptance

Question 43

What is a lapse

Answer 43

-When an offer has lapsed, the offeree can no longer accept it even if he is unaware that it has lapsed; it has become void and no longer exists. An offer may lapse in any of the following ways:

o 1. when the offeree fails to accept within a time specified in the offer
o 2. when the offeree fails to accept within a reasonable time, if the offer has not specified any time limit
o 3. when either of the parties dies or becomes insane prior to acceptance

Question 44

What is revocation?

Answer 44

• An offeror may be able to revoke (that is, withdraw) an offer at any time before acceptance, even when it has promised to hold the offer open for a specified time. They must provide A notice of Revocation to make it effective.
• HOWEVER, An offeree may obligate an offeror to keep its offer open (that is, not to revoke it) for a specified time in a couple of ways: (1) the offer itself may specify that it is irrevocable; or (2) a subsequent contract called an option may be made to keep the offer open.

Question 45

What is an option?

Answer 45

o In an option, the offeree makes a contract with the offeror in the following general terms:
 The offeree agrees to pay a sum of money as consideration; in return the offeror agrees
 (1) to keep the offer open for a specified time and
 (2) not to make contracts with other parties that would prevent the offeror from fulfilling its offer (that is, to give the offeree the exclusive right to accept the offer).
o Without consideration, an option is unenforceable.

Question 46

What is the rejection or counter offer by the offeree?

Answer 46

• When an offeree receives an offer and, though interested, chooses to change some of its terms, he has not accepted; rather, he has made a counter-offer of his own, amounting to rejection of the offer. Only when acceptance is without qualification is a contract formed.
  o If the offeror is turn rejets the counter-offer, the orginal offer IS NOT revived. Only if the offeror agrees to re-offer the original offer
   HOWEVER, when an offeree merely inquires whether the terms offered are the best he can expect, it does not amount to a rejection.

Question 47

What are the elements of an acceptance?

Answer 47

Acceptance must be certain and unconditional, and must be a positive act, whether in words or in conduct.

Generally , an offeree must communicate acceptance to the offeror. HOWEVER, Some types of offers, can be accepted without communication because the offeror asks only that the offeree perform an act, implying that the act will amount to acceptance.

The moment of formulation: The moment the contract is formed by acceptance of an offer, each party is bound to its terms, to analyze business negotiations we must be able to identify

Question 48

What is the meaning of consideration?

Answer 48

An accepted offer is not an enforceable contract unless it has consideration. The accepted offer must form a bargain —where each party pays a price or gives value for the promise obtained from the other party.
o This ‘price’ is called consideration. In short, consideration is “the price for which the promise [or the act] of the other is bought.”

Question 49

Intentions of creating legal relations

Answer 49

There is no contract formed unless both sides intended to create a legally enforceable agreement. There must be a ‘meeting of the minds’ on all the essential terms of the deal and a mutual intention to create a legally binding contract

Question 50

What is capacity?

Answer 50

Capacity is when a person has the legal capability of understanding the meaning and obligations of a legally binding contract.