Colonial Law Group | The law of torts

CHAPTER
PowerPoint®
Presentation Prepared By
Susan McManus, Mount Royal College
© 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.
CHAPTER
PowerPoint®
Presentation Prepared By
Susan McManus, Mount Royal College
2
The Law
of Torts

Essentials of Canadian Business Law, 1st Canadian Edition Slide 2-2 © 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.
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
CH 2

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
2.1

Tort Law
Unintentional Torts –
commit the acts without
intent, usually by accident
or carelessness
 Negligence
 Occupiers’ Liability
 Vicarious Liability
 Strict Liability
 Commercial Negligence
Intentional Torts –
decision to commit the acts,
not always intention to
harm
 Assault & Battery
 False Imprisonment
 Defamation
 Trespass
 Nuisance
2.1

Tort Law
Torts: legal rules with individual definitions as
set out in common law and based on precedence
What torts can you identify?
2.1

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
2.3

Assault and Battery (Cont’d)
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)?
2.3

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
2.4

False Imprisonment (Cont’d)
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
2.4

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?
2.5

Essentials of Canadian Business Law, 1st Canadian Edition Slide 1-11 ©
2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.
Defamation
Figure 2-1

Defamation (Cont’d)
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
2.5

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)
2.6

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
2.7

Nuisance (Cont’d)
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?
2.7

Negligence
Most common tort
Negligence - summary
 Duty – owed to another not to cause harm
 Breach – duty is not met
 Damages – injury caused by breach
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
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?
2.8

Negligence – Damages
Causation
 Proximate cause: plaintiff’s negligence is the
direct and only cause of the injury, if not plaintiff’s
liability will be limited
 Remoteness or Foreseeability Test: reasonable
person would have foreseen the damage or injury
occurring from the action taken
2.8

Negligence (Cont’d)
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
2.8

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 licensee’s benefit) – duty to warn of
hidden dangers
 Invitee (permission for occupier’s 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
2.9

Essentials of Canadian Business Law, 1st Canadian Edition Slide 1-22 ©
2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.
Defamation
Figure 2-2

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
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
2.9

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
2.10

Commercial Negligence (Cont’d)
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?
2.10

Commercial Negligence (Cont’d
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
2.10

Commercial Negligence (Cont’d)
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
2.10

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
2.11

Defences to Claims of Negligence
(Cont’d)
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
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?
2.11

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
2.12

Special Remedies
Special Remedies
 Injunction – court order requiring stoppage of
certain action
2.13

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
2.14

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
CH 2

Colonial Law Group | The law of torts

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