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Action
the lawsuit
Cause of action
the type of lawsuit (eg. Tort or contract)
Plaintiff (π)
Person making the lawsuit – the one injured, the complainer
Defendant (Δ)
Person defending against the lawsuit – the person responsible for the injury
Claim
the reason for the lawsuit
Damages
$$$
Pima Facie
on the face of it
Tort law
personal injury Compensation for harm done (compensatory, not punitive) Between individuals (criminal law is between individuals and the state) Only require balance of probabilities for standard of proof because compensatory not punitive (criminal law requires beyond a reasonable doubt).
Object of tort law
to place the injured party back in the position he/she would have been in, had the tortious act not occurred
Tort (definition)
A tort is a wrongful act done to the person or property of another that causes harm to that person. (Harm is a required element of any tort).
Strict Liability
Just requires an existing writ (a category of wrongdoing acknowledged in law). No need to prove fault. Rare now but still exists, eg. Public nuisance.
Tortfeasor
Person who commits the tort (the wrongful act) - the defendant if it is taken to court
Intentional Torts
• Public Nuisance • Private Nuisance • Trespass • Assault • Battery • Intentional infliction of mental distress • False imprisonment • Malicious prosecution • Defamation
Elements of a Cause of Action
• Example, Trespass to property: 1) Intention; 2) Entering property; 3) Without consent; and 4) Causing harm • All elements must be present for the claim to go forward • The onus is on the plaintiff to prove the elements of the cause of action
Intentional Torts: Public Nuisance
interference with the lawful use of public lands and is often quasi-criminal in nature with action taken against the tortfeasor by the government
Intentional Torts: Private Nuisance
interference with an occupier’s use and enjoyment of his/her land
Intentional Torts: Trespass
the act of entering someone else’s land without consent • Harm must be caused • If a trespasser has caused damage to the property, then the land owner can bring an action in court
Intentional Torts: Assault
• The threat of violence to a person Considered to be a trespass to the person. Usually found in conjunction with Battery even though 2 different torts.
Intentional Torts: Battery
• Unlawful touching of a person (without consent) Considered to be a trespass to the person. Usually found in conjunction with Assault even though 2 different torts.
Intentional Torts: Intentional Infliction of Mental Distress
• Intent to cause harm • Recognizable physical or psychopathological harm must occur
Intentional Torts: False Imprisonment – unlawfully restraining or confining another person
Does not need to be physical restraint – can be psychological It is not false imprisonment if charges are laid by the police
Intentional Torts: Malicious Prosecution
Reporting a person to the police when there is no good reason to believe that person committed a crime
Intentional Torts: Defamation
making an untrue statement that causes injury to the reputation of another Slander – spoken Libel – written
Defamation elements
1) Intent (maliciousness); 2) Statement made; 3) Statement is false; 4) Statement is published, i.e. made to a 3rd party; and 5) Statement must cause “genuine and significant injury” to the reputation of the plaintiff. (reputation meaning ability to make money)
Defences to Defamation
• The statement was true; or • Qualified privilege – statement made in good faith and with honest belief in its truthfulness (ie. Letter of reference with untrue statements in it – but if truly believed it according to own records, etc. then it is a valid defence) • Responsible Communication on Matters of Public Interest (newspaper article quoted resident who said something libelous, gave plaintiff chance to respond prior to printing – newspaper won the case)
Absolute Defence
defendant wins outright – no arguments.
Defences to Intentional Torts
• Consent • Self-defence • Necessity • Volition (lack of) • Capacity
Defences to Intentional Torts: Consent
• Where the injured party consented to the act that caused the harm, there is no tort • Absolute defence • Must be genuine and informed consent
Defences to Intentional Torts: Self-Defence
The party asserting the defence needs to show that the self defence was necessary; and No excessive force was used
Defences to Intentional Torts: Necessity
This is a defence to trespass, where the right of way is impassable Or no other option but to destroy property – e.g. knocking down a building to prevent the spread of fire
Defences to Intentional Torts: Volition
Act must be voluntary (ie. if at gunpoint or picked up and tossed, then defence)
Defences to Intentional Torts: Capacity
Requirement of mental capacity to form intent – if absent, forms a complete defence
What is the foundational purpose of the torts system, and on what basis is that purpose achieved?
The law of torts attempts to correct incidents that have harmed victims and to compensate them for their injuries caused by the activities of others. Compensation is awarded on the basis of fault: victims unable to establish the fault of the other party will not be compensated for their injuries. Thus, compensation is gained through the proof of fault, which gives rise to civil liability.
What is the burden of proof in tort actions and who typically must carry that burden?
The burden of proof in a civil action (such as negligence) is the burden of proving an issue on a balance of probabilities. In a tort action the plaintiff bears the burden of proving that the defendant caused the injury. On this basis, the plaintiff must prove it is more likely than not that the defendant caused the injury. On this basis, the plaintiff must prove it is more likely than not that the defendant committed a tort. However, in product liability cases, the plaintiff often does not know how or why the accident happened. The law takes these difficulties of proof into account. A plaintiff may initially meet his or her burden of proof by using circumstantial evidence. Rather than identifying exactly how the manufacturer fell below the standard of care, the plaintiff need only prove that the uncharacteristic malfunction of the product is the most likely cause of his or her injury and the manufacturing process is the likely reason for the malfunction. Thereafter, it will be up to the defendant to show that it was not at fault. The manufacturer will be found liable unless it produces evidence to satisfy the court that, on balance, it was not at fault and met the standard of care when producing the product.
What are the required elements of proof for a negligence action?
Plaintiffs in a negligence action must demonstrate that 1) They were owed a duty of care by the defendant 2) The standard of the duty of care was breached by the defendant’s conduct, and 3) This conduct caused the injuries being claimed by the plaintiff.
What duties do the owners and occupiers of property owe individuals?
Originally the common law distinguished between the duties owed to invitees, licensees and trespassers. As a result of reform in most jurisdictions, owners and occupiers now owe a general duty of care to all lawful visitors on their premises and must not set out to deliberately harm or disregard the safety of trespassers.
What types of damages may a plaintiff requests in a torts lawsuit, and what purposes do they serve?
The purpose of damages in tort is to compensate the victim for his or her injuries suffered as a result of the defendants tortious act. Special damages are those damages which are quantifiable and specific to the plaintiff (such as medical bills, lost wages, or actual repair costs); and general damages are less quantifiable losses, such as loss of future wages or income and, in the case of physical injury, pain and suffering. On occasion, courts may award punitive or exemplary damages in cases of egregious or inexcusable tortious conduct, such as a deliberate libel (eg. Purposely damaging someone’s reputation in front of a third party).
What does imprisonment mean in tort law?
Imprisonment can mean the physical holding of someone in a cell or room. It can include the placing of someone under arrest. It occurs when the liberty of the detainee to go where he or she pleases is restrained. It can include a situation where the detainee is coerced to stay by psychological means. If a person submits to authority or threat, and believes that he or she is compelled to stay put, even if a door is not locked, this can constitute an imprisonment.
What is the source of the ordinary citizen’s power of arrest?
The Criminal Code.
In tort law – Assault is…?
The threat of force or harm.
In tort law – Battery is…?
The intentional application of force or unwanted physical contact with a person.
Kinds of damages in tort law are..?
General and special damages.
“Duty of Care”
A defendant owes a duty of care to a plaintiff if a reasonable person can foresee that the activity engaged in will harm that plaintiff.
Special damages
Out of pocket expenses incurred by the plaintiff up to the time of the trial or settlement.
General damages
Losses such as pain and suffering, loss of the enjoyment of life, the cost of future care and loss of future income.
Employers can be sued in cases of employee negligence because of …
Vicarious liability.
Contributory negligence
the defendant counter-claims that the plaintiff was partly responsible and the fault should be apportioned accordingly.
Vicarious liability
The liability of an employer for torts (intentional or unintentional) committed by an employee while carrying out employment duties. It does not extend to acts performed by the employee if he/she is “off on a frolic of his own” but it does extend even if the employee is breaking a company rule. It is in addition to the employee’s liability not instead of.
Rights of businesses against trespassers
A business can revoke its consent to have customers on its property as long as it doesn’t violate human rights legislation. If the customer refuses to leave after consent has been revoked, then the customer is committing the tort of trespass to land, and the store has the right to use reasonable force to eject the customer.
Absolute privilege
Complete immunity from liability for defamation.
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