#9100 - Tort Law

TORTS MIDTERM: CONDENSED OUTLINE

TOPIC	FRAMEWORK/ CASES
INTRODUCTION TO TORT LAW
How it Works p. 1	-deals with individually compensable wrongs that are either intentional or unintentional: wrongs against one’s person, well-being or interests -vindicates or redresses infringements on private rights -recognition of a set of interests which society/law consider worth protecting -determines when the person who causes the harm must pay compensation to the person that suffers it- based on conduct and loss resulting from conduct -depends on nature of conduct of the person who caused the harm, nature of harm suffered and circumstances in which harm was inflicted -burden of proof- beyond a balance of probabilities - who can be held liable in a tort- a person, individual or corporation -defendant’s conduct- intention, negligence (reasonably foreseeable) or accident (not a tort) -not limited by criminal liability (D can be tried in both systems)
Purposes/ Theory p. 1	-moralist- corrective justice, DMs are remedial, focus on correcting relations bw parties -instrumentalist- retributive and distributive justice, designed to achieve many public interest functions (compensation, loss shifting, punishment, deterrence, psychological redress, public education, etc.); balances needs of society as a whole with the interests of the parties
Limitations p. 1	-fault based: doesn’t always address adequate compensation -if D does not have money P will not be adequately compensated -actions are very costly and inaccessible for some Ps -responses to limitations: alternative systems of compensation (e.g. driving); - govt. schemes instituted for no-fault insurance
IDENTIFYING THOSE RESPONSIBLE FOR HARM: TORTFEASORS
Joint Tortfeasors p. 1-2	-occurs when multiple people are held responsible for single harm- proof a single tort is sufficient for liability- convenient for P and maximizes compensation -joint = tried together -shared relationship, participate in common venture or joint enterprise- 4 categories: 1) one who instigates or encourages another to commit a tort 2) employee/ employer- if employee commits tort under scope of employment 3) principle/agent- akin to employee/employer relationship 4) joint residual responsibility - guilt by participation (fact specific) > Cook v. Lewis: Def of jtfs- 2 or more people who agree on common action which commits a tort. If unclear who committed act, then not jtfs not est
Joint and Several Liability p. 2-3	-together and separately liable -P can claim entire amount from either D, who can then sue the other(s) for the remainder, cts apportion responsibility bw Ds, Ds can bring in third parties at fault to proceedings for judge to determine/spread liability (allows P to claim DMs quickly and move on) -rationale: facilitates the compensation of a victim in a case where one or more of the tortfeasors may not be able to pay DMs >Negligence Act (1996), s. 4(2)(a) -legislation asserts multiple tf will always be held to be joint and several -does not apply when P is found to be contributory negligent -one can be held liable for damages owed by all defendants -s. 4(2)(b) allows other defendants to later be sued for their portion -in theory, joint (but not severally) liable defendants would split damages evenly - court determines responsibility of P and reduces damages accordingly; if it cannot be determined, it is split
Several Concurrent Tortfeasors p. 3	-Ds who committed a series of discreet, independent torts- liability must be established for each tort -liability is joint and several which means that all of the Ds are liable for the full amount of the DMs and each D is individually responsible for that amount
Contributory Negligence p. 6-7	-historically a complete defence -now legislation makes it possible for a P who is found contributorily negligent to still claim for part of their damages (to the extent that they were NOT at fault) -for D, it is a partial defence that leads to a reduction in DMs - can occur in 3 ways: accident, placing yourself in a situation of foreseeable harm, failure to take protective measures in the face of foreseeable danger -standard: reasonable person -factors: foreseeability of harm, likelihood of damage, seriousness of threatened damage, cost of precautionary measures, utility of conduct, etc. -apportionment tends to be lenient (insurance) but will be reduced when protective measures are common and affordable (e.g. seatbelts) -if the court is unable to determine the degree of fault it is determined to be 50/50 - recognized in Negligence Act s.1; jtfs does not apply in cases of contributory negligence
VICARIOUS LIABILITY
Vicarious Liability p. 3-4	-the liability of one person for the torts of another because of the nature of the legal relationship bw them -described as strict because it requires no proof of personal wrongdoing (fault) -adopted for policy reasons: economic (more able to absorb costs) and deterrence -most common CL is employee/employer: -tort must be committed during course and function of employment - employer is responsible when employee is placed in a position that creates or enhances the risk of the wrongful act -also principle and agent -does not exclude employers or principals from being directly or personally liable -employees and employers can be jtfs if relationship in terms of liable action is est. > Sagaz Industries: independent contractors are distinguished from employees based on control test (an employee is someone who is under direct control) and are not to be held vl -employers can be vicariously liable through independent contractors if duty is non-delegable -strong connection test- often used in abuse cases- depends on nature and power of authority and degree in which they are able to use that authority in terms of abuse -scope of employment test (E.B.) - multiple tests often required simultaneously, each case is context specific -other relevant factors: equipment, helpers, financial risk, investment
VL + Sex Assault in Institutions p. 4-6	-based on policy reasons of employer being responsible for hiring and supervision -VL more appropriate than direct liability bc of lower burden of proof (lack of evidence) and bc Ds are often DM proof > Bazley: -shifted test from requirement on authorized duties in employment to “enterprise risk test”- VL appropriate when employer enhanced risk of wrong -framework created to determine if vicarious liability exists in institutional setting: 1) look for past precedence and analogous facts on similar subject (only applicable if facts are very similar and if it unambiguously decides if VL is appropriate) 2) apply 5 factors to discern if there is sufficient connection in terms of employee’s actions and employer created risk: 1) opportunity that employer gave to employee to abuse power 2) extent which misconduct furthered employer’s aims 3) extent that misconduct was related to conflict or intimacy inherent in the employment setting 4) extent of power conferred on the employee in relation to the victim 5) vulnerability of potential victims to wrongful exercise of employee’s power 3) If met, determine if VL should be imposed in terms of policy considerations, fairness to the employer and mindfulness of over-deterrence > E.B. v. Order of the Oblates of Mary Immaculate: application and narrowing of Bazley- not sufficient in and of itself that employment increases risk- employer has to give duty that increases risk- suggests that only direct caregivers will be found VL
Hospital VL p. 6	-not settled under the law -hospitals vicariously liable for employees but not for those with “hospital privileges” (Yepremian) -policy considerations: -members of the public have no opportunity to question competence (emergency situation) -patients have no way of knowing who is an employee or simply has hospital privilege
Parental VL p. 6	-parents not VL for their children unless they are employed by their parents or acting as their agents - in ON, BC, MA- thru legislation (e.g. BC Parental Responsibility Act) parents are liable for intentional property damage done by their children -presumption of fault- unless they can prove they were reasonably supervising or made reasonable efforts to prevent DM, they are liable
TORTS DESCENDED FROM TRESPASS TO THE PERSON
Intent and Burden of Proof p. 7	-onus of proof is on D to disprove- important distinction from other cl countries -exception- infliction of mental distress - transferred intent- e.g. if A intends to shoot B but hits C instead (harm was intended, can apply to any tort); can apply to transfer of another tort (e.g. intended to shoot but caused property damage) > Cook v. Lewis: P needs only to prove direct interference in intentional tort; onus is on D to prove they acted w/o intent and negligence
Battery p. 7-8	-compromising the physical autonomy, security and dignity of the person -direct, offensive, unwanted, invasive physical contact- “contact plus” (McLachlin); every day contact not battery (Norberg) -intent to harm not necessary, just intent to make contact -need not touch P, their clothes and possession held by them are also included -harmed person does not need to have knowledge of harm at time but do need to have evidence that harm occurred >Scalera: -P only needs to prove direct interference, D must show it is unintentional and w/o negligence -battery = intended, offensive physical contact -offensive determined by reasonable person -harm need not be...

INTRODUCTION TO TORT LAW

How it Works

p. 1

-deals with individually compensable wrongs that are either intentional or unintentional: wrongs against one’s person, well-being or interests

-vindicates or redresses infringements on private rights

-recognition of a set of interests which society/law consider worth protecting

-determines when the person who causes the harm must pay compensation to the person that suffers it- based on conduct and loss resulting from conduct

-depends on nature of conduct of the person who caused the harm, nature of harm suffered and circumstances in which harm was inflicted

-burden of proof- beyond a balance of probabilities

- who can be held liable in a tort- a person, individual or corporation

-defendant’s conduct- intention, negligence (reasonably foreseeable) or accident (not a tort)

-not limited by criminal liability (D can be tried in both systems)

Purposes/ Theory

p. 1

-moralist- corrective justice, DMs are remedial, focus on correcting relations bw parties

-instrumentalist- retributive and distributive justice, designed to achieve many public interest functions (compensation, loss shifting, punishment, deterrence, psychological redress, public education, etc.); balances needs of society as a whole with the interests of the parties

Limitations

p. 1

-fault based: doesn’t always address adequate compensation

-if D does not have money P will not be adequately compensated

-actions are very costly and inaccessible for some Ps

-responses to limitations: alternative systems of compensation (e.g. driving); - govt. schemes instituted for no-fault insurance

IDENTIFYING THOSE RESPONSIBLE FOR HARM: TORTFEASORS

Joint Tortfeasors

p. 1-2

-occurs when multiple people are held responsible for single harm- proof a single tort is sufficient for liability- convenient for P and maximizes compensation

-joint = tried together

-shared relationship, participate in common venture or joint enterprise- 4 categories:

1) one who instigates or encourages another to commit a tort

2) employee/ employer- if employee commits tort under scope of employment

3) principle/agent- akin to employee/employer relationship

4) joint residual responsibility - guilt by participation (fact specific)

> Cook v. Lewis: Def of jtfs- 2 or more people who agree on common action which commits a tort. If unclear who committed act, then not jtfs not est

Joint and Several Liability

p. 2-3

-together and separately liable

-P can claim entire amount from either D, who can then sue the other(s) for the remainder, cts apportion responsibility bw Ds, Ds can bring in third parties at fault to proceedings for judge to determine/spread liability

(allows P to claim DMs quickly and move on)

-rationale: facilitates the compensation of a victim in a case where one or more of the tortfeasors may not be able to pay DMs

>Negligence Act (1996), s. 4(2)(a)

-legislation asserts multiple tf will always be held to be joint and several

-does not apply when P is found to be contributory negligent

-one can be held liable for damages owed by all defendants

-s. 4(2)(b) allows other defendants to later be sued for their portion

-in theory, joint (but not severally) liable defendants would split damages evenly

- court determines responsibility of P and reduces damages accordingly; if it cannot be determined, it is split

Several Concurrent Tortfeasors

p. 3

-Ds who committed a series of discreet, independent torts- liability must be established for each tort

-liability is joint and several which means that all of the Ds are liable for the full amount of the DMs and each D is individually responsible for that amount

Contributory Negligence

p. 6-7

-historically a complete defence

-now legislation makes it possible for a P who is found contributorily negligent to still claim for part of their damages (to the extent that they were NOT at fault)

-for D, it is a partial defence that leads to a reduction in DMs

- can occur in 3 ways: accident, placing yourself in a situation of foreseeable harm, failure to take protective measures in the face of foreseeable danger

-standard: reasonable person

-factors: foreseeability of harm, likelihood of damage, seriousness of threatened damage, cost of precautionary measures, utility of conduct, etc.

-apportionment tends to be lenient (insurance) but will be reduced when protective measures are common and affordable (e.g. seatbelts)

-if the court is unable to determine the degree of fault it is determined to be 50/50

- recognized in Negligence Act s.1; jtfs does not apply in cases of contributory negligence

VICARIOUS LIABILITY

Vicarious Liability

p. 3-4

-the liability of one person for the torts of another because of the nature of the legal relationship bw them

-described as strict because it requires no proof of personal wrongdoing (fault)

-adopted for policy reasons: economic (more able to absorb costs) and deterrence

-most common CL is employee/employer:

-tort must be committed during course and function of employment

- employer is responsible when employee is placed in a position that creates or enhances the risk of the wrongful act

-also principle and agent

-does not exclude employers or principals from being directly or personally liable

-employees and employers can be jtfs if relationship in terms of liable action is est.

> Sagaz Industries: independent contractors are distinguished from employees based on control test (an employee is someone who is under direct control) and are not to be held vl

-employers can be vicariously liable through independent contractors if duty is non-delegable

-strong connection test- often used in abuse cases- depends on nature and power of authority and degree in which they are able to use that authority in terms of abuse

-scope of employment test (E.B.)

- multiple tests often required simultaneously, each case is context specific

-other relevant factors: equipment, helpers, financial risk, investment

VL + Sex Assault in Institutions

p. 4-6

-based on policy reasons of employer being responsible for hiring and supervision

-VL more appropriate than direct liability bc of lower burden of proof (lack of evidence) and bc Ds are often DM proof

> Bazley:

-shifted test from requirement on authorized duties in employment to

“enterprise risk test”- VL appropriate when employer enhanced risk of wrong

-framework created to determine if vicarious liability exists in institutional

setting:

1) look for past precedence and analogous facts on similar subject (only applicable if facts are very similar and if it unambiguously decides if VL is appropriate)

2) apply 5 factors to discern if there is sufficient connection in terms of employee’s actions and employer created risk:

1) opportunity that employer gave to employee to abuse power

2) extent which misconduct furthered employer’s aims

3) extent that misconduct was related to conflict or intimacy inherent in the

employment setting

4) extent of power conferred on the employee in relation to the victim

5) vulnerability of potential victims to wrongful exercise of employee’s power

3) If met, determine if VL should be imposed in terms of policy considerations, fairness to the employer and mindfulness of over-deterrence

> E.B. v. Order of the Oblates of Mary Immaculate: application and narrowing of Bazley- not sufficient in and of itself that employment increases risk- employer has to give duty that increases risk- suggests that only direct caregivers will be found VL

Hospital VL

p. 6

-not settled under the law

-hospitals vicariously liable for employees but not for those with “hospital privileges” (Yepremian)

-policy considerations:

-members of the public have no opportunity to question competence (emergency situation)

-patients have no way of knowing who is an employee or simply has

hospital privilege

Parental VL

p. 6

-parents not VL for their children unless they are employed by their parents or acting as their agents

- in ON, BC, MA- thru legislation (e.g. BC Parental Responsibility Act) parents are liable for intentional property damage done by their children

-presumption of fault- unless they can prove they were reasonably supervising or made reasonable efforts to prevent DM, they are liable

TORTS DESCENDED FROM TRESPASS TO THE PERSON

Intent and Burden of Proof

p. 7

-onus of proof is on D to disprove- important distinction from other cl countries

-exception- infliction of mental distress

- transferred intent- e.g. if A intends to shoot B but hits C instead (harm was intended, can apply to any tort); can apply to transfer of another tort (e.g. intended to shoot but caused property damage)

> Cook v. Lewis: P needs only to prove direct interference in intentional tort; onus is on D to prove they acted w/o intent and negligence

Battery

p. 7-8

-compromising the physical autonomy, security and dignity of the person

-direct, offensive, unwanted, invasive physical contact- “contact plus” (McLachlin); every day contact not battery (Norberg)

-intent to harm not necessary, just intent to make contact

-need not touch P, their clothes and possession held by them are also included

-harmed person does not need to have knowledge of harm at time but do need to have evidence that harm occurred

>Scalera:

-P only needs to prove direct interference, D must show it is unintentional and w/o negligence

-battery = intended, offensive physical contact

-offensive determined by reasonable person

-harm need not be...

#9100 - Tort Law - Torts

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