Understanding Torts

The Nature of Torts

• A tort is a social or civil wrong that gives someone the right to sue for remedies
• A tort occurs when someone's actions cause injury or harm to another person, their property, or reputation
• Crime involves harmful conduct that presents a significant threat to society
• Breach of contract involves an act that violates a contract, torts are inherently wrongful

Intentional vs Unintentional Torts

• Punitive damages may be awarded in cases of intentional torts, in addition to general and special damages
• Unintentional torts arise from negligent conduct that falls below the expected social standard of a reasonable individual

Vicarious Liability

• Vicarious liability is when an employer is held liable for injuries an employee causes while performing their duties

Types of Intentional Torts

• For an act to be an intentional tort, the act that leads to harm needs to be intentional
• An example of trespass to person is intentional physical interference with another individual
• Assault involves a deliberate verbal or physical threat that causes someone to fear physical interference
• Battery refers to unwelcome physical contact
• Consent is an effective defense for trespass to person when actions are informed, voluntary, and within established consent bounds

Self-Defense

• The law allows people who are attacked to use necessary force, within reason, to defend themselves

Trespass to Land

• Trespass to land means going onto another person's property without permission or legal right
• Continuing trespass involves a permanent incursion onto another person's property, such as when a building encroaches
• Consent and people acting in an official capacity, like postal workers, and police, are exceptions for trespass

Trespass to Chattels, Conversion and Detinue

• Trespass to chattel is direct, intentional interference causing damage
• Conversion is interference and deprivation of someone else's property
• Detinue is wrongful retention of someone else's goods

False Imprisonment

• False imprisonment occurs when someone is intentionally restrained against their will without legal authority to do so
• Key requirements include restraining a person's liberty and unlawful restraint

Malicious Prosecution

• Malicious Prosecution is criminal prosecution motivated by ill will lacking reasonable evidential grounds

Private Nuisance

• Private nuisance happens when someone uses their property in a way that damages or interferes with another's enjoyment of their property
• To prove private nuisance, substantial harm must be proven and must be unreasonable, considering the circumstances

Defamation

• Defamation involves publishing a false statement that harms a person's reputation
• Requirements to prove defamation include: defamatory words, reference to the plaintiff, and publication to at least one other person
• Slander involves spoken defamatory statements
• Libel involves written defamatory statements
• Damages for defamation are not capped

Anonymity in Defamation

• Anonymity may not protect against cyber defamation, as web service providers might have to share information

Defenses for Defamation

• Truth is a defense if the statement is accurate and the defendant proves it
• Absolute privilege exempts liability for defamatory statements in legislatures and courts
• Qualified privilege exempts liability for statements made honestly, without malice, and only shared with those who need to know
• Fair comment is a defense when expressing a negative opinion about public figures or works
• Responsible communication on matters of public interest is a defense for incorrect statements that responsible journalism was applied to

The ABCD of Negligence

• Negligence is an act or omission that unintentionally causes injury
• Four elements must be proven to establish negligence
• The four elements are: a duty of care owed to the plaintiff, breach of duty, causation, and damages

Duty Of Care

• Duty of care means taking steps to avoid foreseeable harm, which can be established through reasonable foreseeability test

Reasonable Foreseeability Test

• Was the injury reasonably foreseeable?
• Degree of proximity between plaintiff and defendant, such that the defendant should have realized their actions pose a risk to the other

Donoghue V. Stevenson

• Mrs Donoghue went to a cafe where her friend bought her a ginger beer, it unbeknownst to her there was a decomposing snail at the bottom
• She sued the beer manufacturer for negligence, but the manufacturer argued they owed her no duty of care

Misfeasance vs Nonfeasance

• Misfeasance is wrongful conduct
• Nonfeasance is a failure to act, which usually does not warrant a duty of care

Breach of Standard of Care

• Once a duty of care is established, the next question is whether the defendant demonstrated sufficient care

Reasonable Person Test

• The reasonable person test is used to determine if the conduct was below reasonable standards

Circumstances to Consider

• Factors to consider are, risk of injury, expenses, and expertise of the defendant

Causation

• Causation is used to determine that the defendant is responsible for losses suffered

"But For" Test

• The "but for" test requires the plaintiff to prove that the damage occurred "but for" the defendant's actions

Remoteness Test

• The remoteness test determines whether the damages suffered were too far removed from the negligent act

Damages

• Some loss to a person or property must be suffered

Thin Skull Rule

• The thin skull rule says take victims as they are, even with unique physical or mental conditions

Crumbling Skull Rule

• Crumbling skull says a defendant cannot be held liable for losses that were inevitable

Defenses for Negligence

• Voluntary assumption of risk requires understanding that the defendant assumes no responsibility for the plaintiff's risk
• Contributory negligence is when the plaintiff fails to take reasonable care

Illegality (Ex Turpi Causa)

• The court may reject a negligence case if the plaintiff was acting illegally or immorally when injured

Legislation Impacting Duty of Care

• No fault programs compensate people for injuries regardless of fault
• Occupiers liability is the obligation of property occupiers to ensure visitor welfare
• Invitees are allowed on a property for business
• Licensees have permission, but not for business purposes
• Trespassers are on a property without permission
• Strict liability applies when an action is inherently dangerous, regardless of how careful