Summary is a personally edited and modified version of Michael Mostyn’s Summary
Chapter 1 - Introduction to the Law of Torts
Torts - a type of civil wrong, separate from breach of contract which the courts will redress by way of monetary damages
TORT - "civil wrong"
» other than breach of contract
» which courts address by award of damages (usually monetary)
» state plays no official role
e.g.) sue tobacco for cancer but tie up your $
sue for DWI hit/run but guy has no $, THEREFORE Judgement (when has $)
Civil offence between 2 people / individual vs. state
provide compensation / to deter criminal offenses
prove on balance of probabilities / beyond "reasonable doubt"
private wrong / public wrong
TORT / PROPERTY
deals with property tangentially (interference with possession) / deals with ownership and possession
TORT / CONTRACT
remedies are available independent of agreement / rights and remedies made by parties by mutual agreement
NONFEASANCE failure to act - e.g. see blind person walk into traffic
(more difficult to enforce in torts b/c emphasis on autonomy)
MISFEASANCE positive wrongful act - eg. push person into traffic
2 Torts of Writ System:
1) VI ET ARMIS - INTENTIONAL - if log thrown & hit someone in head
i) quasi-criminal (in nature)
ii) directly cause injury
iii) actionable without proof of harm
iv) no need to prove fault
v) once interference established (touch someone), burden of proof on D
vi) punitive damages - monetary to punish tort-e.g.) cut down tree
2) TRESPASS ON THE CASE - UNINTENTIONAL (NEGLIGENCE) - if someone fell on a log and hit their head
i) quasi-contractual in nature
ii) indirectly caused in jury
iii) proof of harm
iv) need to prove fault
v) burden of proof on P
vi) no punitive damages
Cases:
Scott v. Shepherd - D threw lighted squib and thrown by others. D liable b/c "he who does 1st wrong answers for all consequences"
(dis)- only if immediate.
Leame v. Bray - D caused horse injury b/c negl. -Immediate injury from immediate act of force. THEREFORE =trespass
Holmes v. Mather - runaway horses. driver free of blame b/c tried to steer horses away. THEREFORE = not wrongful act, no action maintainable.
Cook v. Lewis - 2 hunters mistakenly shoot P. Where P injured by direct force, case is made by onus on D to prove that trespass was without fault.
4 categories of torts:
1) intentional
2) negligence
3) strict liability
4) residual group of actions - defamation, nuisance etc.
LIABILITY IN TORTS
Absolute ------Strict ----- Negligence ------Intent. Torts
Liability
Special Rules Imputed &Transferred
of Proof Intent
absolute - D liable if his conduct causes P's loss (issue causation not fault)
strict - liability without intent or negligence. must prove causation. other preconditions e.g.) defective product from mfg. must show it was this way when it left mfg. (opposite of absolute)
· vicarious liability - D acted while employed. must prove m/s rel't.
Negligence - failure to take reasonable care to prevent foreseeable harm to others. (based on fault)
Intentional - based on fault. intent to bring a/b consequences.
WHEN ANSWERING QUESTIONS:
1ST P:
1) TORT
2) PARTIES
3) CONDUCT
2ND P:
1) ACT WAS:
i) VOLUNTARY - CONSCIOUS MIND
ii) INTENTIONAL
Chapter 2 - The Basic Concept of Remedies in Intentional Tort
Order of Analysis:
1) Lead Sentence; -
identify parties and P. must show that a tort was committed.
2) next paragraph - list remedies available
3) next paragraph - Defences available for the tort (i.e. self-defense)
4) next paragraph - Damages only after P. has shown D. did Tort with no defence
LIABILITY
· CAUSATION - we require some connection between the parties
NECESSARY CAUSATION - “but for” what D did, P’s injuries would not have occurred
SUFFICIENT CAUSATION - D’s conduct all by itself was the only cause: it was sufficient to bring about the harm
à you only need necessary causation
à recall that not all torts require fault!!
à punishment looks backwards; proportion to the wrong
à deterrence is preventive
Judicial Remedies:
1) Damages (99% of time)- grants plaintiff a legal entitlement to a specific sum of money that may have to be enforced with creditor remedies (e.g. you don't get the money instantly).-
only of value if defendant has assets
2) Injunction - court order directing to do something (mandatory) or not do something (prohibitory).-
only issued if damages will not suffice.-
discretionary whether offered by court (usually rare in torts).
3) Declaration- equitable resolution by court settling a debated issue.
4) Specific Restitution - equitable remedy to restore the objector condition; directs a party to restore a pre-existing condition or return an object.
Extrajudicial Remedies:
- self help, broad range - eg. abatement of nuisance, recapture of chattels, private necessity, ejectment
Classification of Damages by Function:
1) Nature of the Harm:
(a)Pecuniary: has a monetary equivalent to the loss (Special and General damages) eg. Lost earnings, medical bills, repairs
(b)Non-Pecuniary: can't be calculated in monetary terms (eg. pain and suffering, humiliation, disfigurement) (General damages only).
· arbitrary awards, limited to $100,000 in Canada(subject to inflation from 1978 dollars)
2) For Purposes of Pleadings:
(a)Special Damages: damages capable of exact calculation at time of trial (must be specifically pleaded and proven by P. at trial)
(b)General Damages: incapable of exact calculation at trial - all non-pecuniary losses are General (eg. future loss of income).
3) Purpose of the Damage Award:
(a)Nominal Damages:
· awarded to vindicate a legal right in the absence of actual harm, loss, or injury. (eg. trespass with no harm done)
· doesn’t mean a small amount of money awarded
· it is only available per se; do not need to show damages/proof of loss
· society decides that some actions are wrong independent of whether harm in suffered
The Mediana 1900 HL
· someone takes a chair out of my room and keeps it for a year
· I have other chairs
· I can receive NOMINAL DAMAGES
· I have lost enjoyment: the use of he chair for 12 months
· no specific amount of $ lost
· just the infraction of a legal right
(b)Compensatory Damages:
· compensates P. with financial redress for an actual loss suffered, including non-physical
· purpose is to put P. where he would be if the tort had not been committed.
· Both special and general; pecuniary and non-pecuniary
· The more serious the injury, the more difficult to figure out the award (highly speculative -
focus on Loss of the Plaintiff
· Aggravated damages is to injuries for pride and dignity stemming from the where the defendant's behaviour was malicioous, vicious, high handed, or socially unacceptable & warranted punishment and deterrence. -
also limited to socially (objectively)unacceptable behavior -
Focus is on the Plaintiff to prove in Aggravated Damages
1) unpleasant behavior; and
2) actual loss (injury to dignity and pride)
- because of compensatory nature.
(c) Punitive Damages:
· purpose is to punish and deter the defendant for socially unacceptable behavior (objective).
· Focus on behavior of the Defendant, don't look at P.
· Test: exceptional actions (harsh, malicious, flagrant, deliberate)
· Retribution
· P must be the victim of the action
Distinguish from:
AGGRAVATED
· deals with conduct AND consequences
· injury to pride and proper feelings
· the same test: exceptional actions
à there seems to be no real difference between punitive and aggravated damages in Canada
à but look to consequences for aggravated
Vorvis v. Insurance Corp. of B.C. 1989 SCC-
court distinguished between aggravated and punitive damages as separate.
· wrongful dismissal here - aggravated damages can't be applied in these types of cases (labour relation cases)- mental distress was not objectively forseeable for termination of contract.
· can get punitive damages even if D is convicted and sentenced, provided he is not incarcerated.
* Punitive Damages available in 3 categories in England
1- arbitrary outrageous acts by the government
2- when defendant calculates a profit in excess to compensatory damages
i.e. Cadillac Fairview rips up neighbor’s $4.00 tulips to increase property value by 4 million damages.
3- when specified by statute
*In Canada - punitive damages can be awarded in any case.
B.(P.) v. B.(W.) 1992 Gen.Div.
· P had been repeatedly sexually assaulted by father for 13 years
· severely traumatized
· awarded non-pecuniary damages
· aggravated damages for gross breach of trust
· punitive damages b/c father was not punished criminally
· could not get punitive damages for what he was already criminally convicted
· but he was not convicted on all the charges -can get punitive damages punitive for those (eg. the rape). * defendant's criminal conviction has nothing to do with aggravated damages - still apply
· mere fact I got money from you in tort won't apply to crim. law- harder to prove, but it can work the other way.
· now, courts may award punitive damages if they think the punishment of the criminal court was not tough enough
· *K.C. Hill got 1.3 million for defamation by Church of Scientology-
how does that compare to B. v. P. getting $175,ooo?-
social justice is not the law.
· Punitive damages are not usually available in negligence - careless conduct except for extraordinary circumstances.
· you are only entitled to remedies the judge deems appropriate, but you do have a right to compensatory damages.
· can get both punitive and aggravated damages.
· courts will take totality of award into account (if one very big, the other may be small)
First Question In Damages: Is there a loss damage or injury?
No - Nominal
Yes -
Second Question: was the defendants conduct sufficiently outrageous and has P. also suffered injury to pride?
Yes - may get Aggravated damages
If D.'s conduct warrants punishment and deterrence, may get punitive.
Chapter 3 - Intentional Interference with the Person-
Derived from trespass vi et arms: - battery, assault, tresspass to land and chattels.
Derived from trespass on the case: - false imprisonment., malicious prosecution, intentional infliction of nervous shock.D
· Does the defendant's act give rise to the tort?
I - Principles of Liability: only liable if conduct is both: (a) voluntary (product of a conscious mind)
(b) intentional
1) Volition-
the act must be voluntary and directed by a conscious mind & in control of his physical actions.
Smith v. Stone 1647 K.B.-
act was his body going onto the land of the defendant (he was carried there).
his act was not voluntary therefore not guilty of a tort.
the party who carried D. committed the tort.
eg. tripped and put out hands - not voluntary
eg. chased by bees, save a kid - voluntary
2) Intent
D. must intend the consequences of the act giving rise to the tort action.
· motive is irrelevant to volition and intent.
· does not deal with moral blameworthiness
just because the act is voluntary with intent does not mean you will be held liable i.e. pushing a little girl out of the way of a car- has intent and volition.
(A) Actual Intent
You actually desired to bring about the consequences giving rise to the action
(B) Imputed (Constructive) Intent: unintended consequences that are certain or substantially certain to result.
intent will be imputed if D. intended his act
- eg. place bomb, hoping not to hurt anyone.
- based on an objective reasonable test
· this is not simply foreseeable or probable; rather, it is a very high test
(C) Transferred Intent:
D. may be held liable when has intent against one party and mistakenly acts against another-
the law transfers the wrongful intent to the person who actually gets injured or killed.-
not certain or substantially certain to follow. This can be the same tort or a different tort.
· limited to hurling, casting and shooting - direct consequences of the act. -
transfers from one victim to another and from one tort to another
· can't transfer other acts not from trespass vi et armis (eg. intentional infliction of nervous shock)
II - Related Issues: Motive, Mistake, Accident
(1) Motive:
· reasons for wanting the result to occur
· P does NOT have to establish that D had a blameworthy motive, just that the conduct was intentional
· not relevant to intentional tort liability - does not deal with intent – it is not an element of the tort
· not a defence per se (may be element of a defence)
Relevance:
1) Tort - motive not relevant to whether the tort occurred.
2) Defence - motive relevant to self defence and defence of third parties.
3) Damage - if motive good may affect compensatory - low sum-
if motive blameworthy - may get aggravated damages-
for punishment and deterrence (punitive)- motive may be relevant
2 Important Motives:
(I) Duress –
· includes any conduct which overpowers will and coerces or constrains performance of an act which otherwise would not have been performed
· a motive that does not negate volition or intent (if you act to protect yourself, you still do so with a conscious mind and intent).
· may negate the defence of consent
function of tort is compensation of P. not punishment of D.(like crim.).
* not a defence at common law, may affect damages.
Gilbert v. Stone 1648 K.B.
- G sues S for going into house & taking $
- S pleads duress ( life threatened at gunpoint by 12 gangsters)
- duress not a defence (P. must be compensated because he has still committed the tort)
(II) Provocation:
Provocation Test - plaintiff's conduct must be such as to cause the defendant as a reasonable person to lose power of self control immediately before or during the tort.
· not a defence in tort, only affects damages
Miska v. Sivec 1959 Ont. C.A.-
guy chased into house by guy with iron bar & kills with a warning shot.
judge said he should have lost temper sooner (was calculated) – no provocation: D made a successful retreat; no evidence of sudden passion
doesn’t affect volition or intent (doesn’t negate liability, not a defence)