Tort Law

A successful action in negligence requires that the plaintiff demonstrate

(1) that the defendant owed him a duty of care; (3) that the plaintiff sustained damage; and (4) that the damage was caused, in fact and in law, by the defendants breach

Punative damages

(Whiten v Pilot insurance) -when other remedies inadequate- retribution, deterrence, denunciation -basis in wrongdoing- potential and actual harm; motive; planning; vulnerability

More v. Bauer

- hockey helmet -negligent manufacture and failure to warm -failed because standard of care met: -csa standards -warnings on helmet -

Tort

- private wrong against the private interest of an individual, government, corporation -damages or injunction: objective is to make plaintiff whole again - liability- refer to the "plaintiff" and the "defendant" -purpose: to make the affected party whole again, either by damages or an injunction -balance of probabilities

Negligence summary (cases)

- was there a duty? (donoghue v. stephenson) -was a standard of care breached? (more v bauer) -was the injury caused by the defendants breach of the standard of care (cullingan v mustapha) -was there injury?

Consent as a defence

-Consent to an intentional tort can also apply as a defence, either in relation to sexual contacts or in relation to sporting contests in which injuries and damages are sustained. oConsent is especially important in the context of sexual assault oSimilarly, contact sports permit assaults that would otherwise be actionable.

Culligan v Mustapha

-Damages were too remote- not connected to seeing a fly in a water bottle

Negligence claims need to show

-Duty of care -breach of a standard of care -causation -damages

Criminal v Tort negligence

-In criminal law, the need for mens rea and actus reus exists In tort law, particularly in the realm of negligence, there is no requirement of mens rea- the evil intention

Intentional torts further

-Is the standard of liability the same for intentional torts and negligence (bettel v yim) -is it similar to the standard imposed in criminal cases? (balance of probabilities v. beyond a reasonable doubt)

The role of deterrence and punitive damages in tort

-an emphasis on punitive damages in tort may duplicate the existing imposition of sanctions by the criminal court system, potentially imposing two sets of punishment upon an accused.

intentional tort

-assault -battery -false imprisonment -malicious prosecution -intentional infliction of mental harm -trespass to property -trespass to chattels -conversion

Torts exist only to

-compensate for private wrongs

Defences to intentional torts

-consent- sporting contests or sexual battery -self defence -defence of property -necessity- e.g. trespassing to avoid a physical threat -legal authority e.g. police use of force

Defences to negligence

-contributory negligence -accident -voluntary participation (tallow v. tailfeathers) -voluntary assumption of risk (king v. redlich)

Overlapping jurisdiction in tort and criminal law

-criminal negligence -intentional torts and mens rea in criminal law

More v. Bauer

-got injured wearing a bauer helmet and they sued for negligence and that the csa was negligent in failing to develop and adopt a more rigorous standard for a hockey helmet -they were unsuccessful, due to the helmet being CSA approved and providing multiple warning signs

A second defence is that the negligence complained of took place in the context of voluntary participation in a criminal or antisocial action,

-in tallow v. tailfeathers

Intentional torts and mens rea

-mens rea in criminal law -intentional torts- intent to cause harm (not always equal to exact harm that resulted)

Mustapha v. Culligan of canada

-o In this case Mustapha sued his bottled water supplier culligan for psychiatric harm suffered by seeing a dead fly and part of another dead fly in an unopened replacement bottle of water. o the retrial judge found that seeing the flies in the water resulted in psychiatric injuries to Mr. Mustapha and awarded him 80,000$ in general damages, more money in special damages and more money in loss of business - in review they found that the injury was not reasonably foreseeable and overturned the judgement

Compensatory damages

-restore plaintiff to position prior to the accident - doctors bills -repair bills -lost income due to accident -lost opportunity

Tallow v Tailfeathers

-the plaintiffs were passengers in a stolen car driven by the defendant, who fell asleep at the wheel and hit a telephone pole. one was killed and the three others were injured -even though he was tired, drunk and excerta the court found that the plantiffs have no valid claim of negligence because they were involving themselves in criminal activity

Special cases for liability

-vicarious liability -Social host liability

Vicarious liability

-when someone is liable for someone else's wrongdoing -John doe v bennett

Criminal Negligence

219. (1) everyone is criminally negligent who (a) in doing anything or (b) in omitting to anything that is his duty to do (c)shows wanton or reckless disregard for the lives or safety of other persons (2) for the purposes of this section, "duty" means a duty imposed by law 220. every one who by criminal negligence causes death to another person is guilty of an indictable offence and is liable to imprisonment for life

causation

A cause and effect relationship in which one variable controls the changes in another variable.

Birmingham water works successfully avoided responsibility for the plaintiff Blyth's flooded basement using this defence

Accident

The criminal equivalent of this tort is assault

Battery

Criminal negligence

Behavior in which a person fails to reasonably perceive substantial and unjustifiable risks of dangerous consequences. s. 219 of the -broader scope in tort- duty is lower bar

Crime and tort differences: standard of proof

CRIME: beyond a reasonable doubt TORT: Balance of probabilities

This is a defence to the intentional tort of battery

Consent

This defence to a claim in negligence is that the plaintiff contributed to the harm that occured

Contributory negligence

The criminal code equivalent of this intentional tort is theft

Conversion

This case involved the liability of a manufacturer for a decomposing snail in a bottle of ginger beer

Donoghue v. stephenson

Elements of Negligence

Duty of care Standard of care Breach of a standard of care Causation damages

Culligan v. Mustapha

In this case the plaintiff was unable to his claim damages of 80,000 for seeing a fly in a water bottle because the supreme court found they were too remote

Vicarious liability

Legal doctrine under which a party can be held liable for the wrongful actions of another party. The doctrine of vicarious liability imputes liability to the employer or principal of a tortfeasor, not on the basis of the fault of the employer or principal, but on the ground that as the person responsible for the activity or enterprises in question, the employer or principal should be held responsible for loss to third parties that result from the activity or enterprise.

Social host liability

Liability for people who host a party to third parties that are injured by party guests - childs v desmoreaux

This intentional tort could be used to sue the crown

Malicious prosecution

Donoghue v Stevenson

Neighbour principle. SNAIL in ginger beer. - demonstrated duty of care and manufacturers's liability

Whiten v. pilot insurance

Punitive damages awarded to insured - insurer unreasonably denied claim -eventually awarded to them -housefire one

Childs v Desormeaux

Social host liability -Tragic car accident drunk driver killed and some injured, leaving some paralyzed -He then sued his friend who hosted the party for letting him drive -The judge found that party hosts do not have this responsibility but mothers against drunk driving had something else to say

Social Host Liability

Social host liable for injuries caused by guests who are served alcohol at a social function injure themselves or another due to intoxication

In More v. Bauer, the defendant was able to show they met this key element of negligence by pointing to evidence that their helmets were certified by the CSA

Standard of care

Crime and tort differences: objectives

TORT -damages or injunction: objective is to make plaintiff whole again CRIME - Sentencing: objective is punishment and protection of the public

Crime and tort differences: Purpose

TORT: - to make the affected party whole again, either by damages or an injunction CRIME: (1) respond to crime (2) specific and general deterrence (3) rehabilitation of offenders; (4) moral condemnation

Crime and tort differences: labels

TORT: - Liability- refer to the "plaintiff" and the "defendant" CRIME: - Guilt- refer to the "accused" and "the victim"

Crime and tort differences: What are they?

TORT: - private wrong against the private interest of an individual, government, corporation CRIME: - Public wrong/offence against public interest in the criminal code

A key difference between negligence and intentional torts is that the plaintiff needs to prove this

The defendants intent

Duty of care

The duty of all persons, as established by tort law, to exercise a reasonable amount of care in their dealings with others. Failure to exercise due care, which is normally determined by the reasonable person standard, constitutes the tort of negligence.

Bettel v. Yim

Thought a kid was lighting a fire in his store, shook him to obtain a confession and accidentally hit his head on the kids nose, making him bleed. He claimed it was a mistake The decision of Judge Borins in this case draws a line between-a standard to be employed with torts of negligence and a standard to be employed with intentional torts. oWith intentional torts, it is sufficient that the defendant intended harm, and that it is no answer to claim that some amount of the damage was not foreseeable oIn the bettle case, the fact that yim did not intend to strike bettles nose with his head, or could not foresee that he would do so does not limit his liability for the assault. -was still punished bc just cause he didnt intend to cause that much harm, the fact that he still did was enough

Contributory negligence

accident voluntary participation voluntary assumption of risk -the defence of contributory negligence is often used to diminish or even eliminate the plaintiffs liability for damages -the defence is based on an argument that the plaintiff has either contributed to or created the negligence complained of

Brazley v. curry, Jacobi v. Griffiths, K.L.B v. british Columbia

decisions affirm the test for vicarious liability in tort assault of children • In determining whther there is a sufficient connection in the case of intentional torts, factors to be considered include but are not limited to the following (Brazley) (a) The opportunity that the enterprise afforded the employee to abuse his or her power; (b) The extent to which the wrongful act may have furthered the employers aims (and hence be more likely to have been committed by the employee) (c) The extent to which the wrongful act was related to friction, confrontation, or intimacy inherent in the employers enterprise; (d) The extent of power conferred on the employee in relation to the victim; (e) The vulnerability of potential victims to wrongful exercise of the employee's power (f) The vulnerability of potential victims to wrongful exercise of the employees power

Breach of a standard of care

failure to reasonably practice the necessary caution that a normal person would use

Negligence

in response to the failure of an individual or collectivity to conform to a standard of reasonable care -may be premised upon doing something that a reasonable person would not be expected to do

John Doe v bennett

oRaises the possibility of the vicarious liability of the Roman Catholic Church for a sexual assault -priest found directly liable -his church (st george) found directly and vicariously liable as his employer and providing him opportunities to abuse his powers by giving the priest tasks involving young boys -met all the requiremets of the brazleys test

Donoghue v Stevenson

was a landmark case because of its extension of the doctrine of negligence to the products of manufacturers. oSnail in the pop one othe test of product liability for negligence as set out by lord atkin and lord macmillan, focusses on the extent to which the product in question can be altered after leaving the manufacturer. -do not injure your neighbour