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CHAPTER

2 The Law of Torts

PowerPoint Presentation Prepared By Susan McManus, Mount Royal College

2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.

CH 2

LEARNING GOALS
Identification of common torts (intentional and unintentional) Identification of tort situations in business Understand principles of law imposed by the courts to determine tort liability Understand how the courts apportion liability where more than one person is responsible Understand how damages or compensation is determined by a court

Essentials of Canadian Business Law, 1st Canadian Edition

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2.1

Tort Law
Tort: acts or omissions recognized by law as civil wrongs causing injury to others or their property Actions may have:
tort aspect = civil action by plaintiff against a defendant based on compensation Criminal aspect = criminal charges by the Crown against an accused based on punishment

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2.1

Tort Law
Unintentional Torts Intentional Torts

commit the acts without intent, usually by accident or carelessness

decision to commit the acts, not always intention to harm

Negligence Occupiers Liability Vicarious Liability Strict Liability Commercial Negligence

Assault & Battery False Imprisonment Defamation Trespass Nuisance

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2.1

Tort Law
Torts: legal rules with individual definitions as
What torts can you identify?

set out in common law and based on precedence

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2.3

Assault and Battery


These are separate torts that usually occur together Assault threat of injury to a person, with the intent to carry out the force Battery intentional and deliberate force or touching to a person without consent

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2.3

Assault and Battery (Contd)


Defences to Battery: Self-defense reasonable force can be used to stop the threat and protect a person or property, but the force cannot be excessive Consent if physical force is known and agreed to then only if excessive would battery occur, and in medical the consent must be for a particular procedure
What examples of assault and battery can you identify (include medical procedures)?

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2.4

False Imprisonment
Comprised of two aspects: Imprisonment restraint or confinement, including remaining based on embarrassment of public accusation False no lawful right to restrain for example no theft committed

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2.4

False Imprisonment (Contd)


Defences: Limited as requires lawful reason to restrain, usually crime committed Best method is call the police, as they may apprehend on ground the plaintiff may have committed a crime

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2.5

Defamation
Defamation: False statement Publication made to other party or parties
Slander verbal Libel written form

Loss reputation by person, business or service What forms of communication can be defamatory?

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Figure 2-1

Defamation

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2.5

Defamation (Contd)
Defences Truth: must be proven in fact Absolute privilege: situations of public interest (courts, boards, Parliament) Qualified privilege: made in good faith with importance to public (letter of reference) Fair Comment: raised by the media based on honest opinion with public information

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2.6

Trespass to Land and Goods


Entry on land without permission or consent May have damage, but even intrusion gives rise to the tort Remedies include damages or injunction (court order to prevent to action/trespass)

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2.7

Nuisance Private and Statutory


Private Undue interference with enjoyment of property Serious interference not mere inconvenience Courts will examine
Interests of community over individual interests Reasonable use

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2.7

Nuisance (Contd)
Private Nuisance Remedies: damages and injunction (court order to refrain from certain acts)

Statutory Nuisance Areas where governments have regulated certain activities for the benefit of the community as a whole What areas can you identify for government regulation?

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2.8

Negligence
Most common tort Negligence - summary Duty owed to another not to cause harm Breach duty is not met Damages injury caused by breach

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2.8

Negligence
Duty Standard of care owed not to injure another Reasonable person test
Careful and cautious in his or her conduct Determined by courts in each situation and varies with
Activity or action Risk Skill or expertise

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2.8

Negligence Breach of Duty


After plaintiff proves duty owed then must prove: Breach of duty defendant did not meet the standard of care for the situation
To whom do you owe a duty of care when you drive? What is the standard you owe? What situations would be a breach of this duty?

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2.8

Negligence Damages
Causation Proximate cause: plaintiffs negligence is the direct and only cause of the injury, if not plaintiffs liability will be limited Remoteness or Foreseeability Test: reasonable person would have foreseen the damage or injury occurring from the action taken

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2.8

Negligence (Contd)
Contributory Negligence Plaintiff is also responsible (partly or entirely) for his or her injuries Court will apportion the damages based on the extent of responsibility Voluntary Assumption of Risk Person voluntarily participates in an activity which carries a chance of risk

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2.9

Other Unintentional Torts Occupiers Liability


Duty of care owed by an occupier, person in possession of land, to others on the land

Common Law: Trespasser (no permission) no duty of care, but cannot deliberately injure Licensee (permission for licensees benefit) duty to warn of hidden dangers Invitee (permission for occupiers benefit) highest duty to warn of unusual dangers that exist that a reasonable and careful person should know; duty met if sufficient warnings are given Statute Law: Many provinces have legislation imposing a standard of care owed to trespassers and visitors

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Figure 2-2

Defamation

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2.9

Other Unintentional Torts Vicarious Liability

Liability for the actions of another Employment: Employer is liable for torts committed by an employee while carrying out duties assigned, as the employer exercises control and supervision over the employee Partnership: Partnership is liable for torts committed by the partner if the actions are in the course of partnership business

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2.9

Other Unintentional Torts Strict Liability


Activities are so dangerous that they result in liability regardless of care taken or duty of care met Governments by laws use strict liability for environmental damage

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2.10

Commercial Negligence
Professional Negligence Duty owed is that of a reasonable person who is a fully qualified member of that profession with standards established by a governing body or association Very high standards of care Protection by insurance

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2.10

Commercial Negligence (Contd)


Negligent Statements Reports or advice by professionals must meet the standard set by the profession Liability to others who rely on the statements and suffer a loss S.C.C. test @ page 47
Liable to foreseeable users of information Determination of appropriate limitation on group using the information, therefore not liable to the world at large

What professions are impacted by this tort?

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2.10

Commercial Negligence (Contd


Manufacturers Negligence High duty of care is owed to the consumer that they will not be injured by the product Donoghue v. Stevenson snail in the bottle case is the leading case establishing liability to the consumer

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2.10

Commercial Negligence (Contd)


Manufacturers Negligence Standard of care is required to ensure products will not damage or injure the user or consumer Adequate testing is essential to avoid liability If a product is dangerous then adequate warnings and proper instructions are also essential to avoid liability

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2.11

Defences to Claims of Negligence


Act of God No liability for loss caused by an unanticipated event beyond the control of plaintiff Waiver Express or implied promise not to sue
Usually in writing Must be brought to the attention of person waiving the right Must refer to the type of injury contemplated at the time

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2.11

Defences to Claims of Negligence (Contd)


Release Promise to discharge a person from liability and not to sue
Usually written release for compensation for loss or damage suffered

Statute of Limitations Legal action must begin within a reasonable time, most provinces have statutory limits If action is not commenced within the set time period the right to sue is lost

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2.11

Defences to Negligence
Lawful Right Person is granted the right to action under a duty to protect the public at large, then will not be liable
When would these defences apply?

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2.12

Tort Remedies
Monetary (money) Damages to place person back in same position

1. Special Damages
Established by specific receipts or records

2. General Damages
Estimated usually based on expert testimony

3. Punitive or Exemplary Damages


Punishment for particularly reckless actions, usually intentional torts not ordinary negligence

4. Nominal Damages
Small amount of money to recognize violation, but court costs may also be given adding to the cost
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2.13

Special Remedies
Special Remedies Injunction court order requiring stoppage of certain action

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2.14

Business-Related Torts
Slander of Goods Untrue statement as to the nature of goods Slander of Title Untrue statement with respect to ownership of goods Fraudulent Misrepresentation Intentional false statement to deceive another into entering a contract Allows rescission of the contract and damages Fraudulent Conversion of goods False pretenses to acquire goods

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CH 2

SUMMARY
Torts are civil wrongs causing injury to another Intentional often criminal association
Assault and battery, false imprisonment, defamation, trespass, nuisance

Unintentional negligence, most common type of tort, with many aspects


Liability by professionals, manufacturers, occupiers, vicarious and strict liability

Defences are available for tort actions Remedies are used to compensate for losses caused by tort actions

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