Intro.
to Tort Law
1. Torts & Crimes
2. Torts & Contracts
3. Types of Torts
General Principles of Tort Law
1. Liability Insurance
2. Vicarious Liability
3. Remedies
4. Alternative Compensation Scheme
(c) 2019 Nick Iannazzo. All Rights Reserved. 1
Tort
failure to fulfill a private obligation imposed by law
French “tort” = “wrong”
Latin “tortus” = “twisted or crooked”
Tortfeasor
person who commits a tort
Social Purpose:
Tort law discourages people from committing private
wrongs by requiring them to compensate & restore
the wronged party
Tort is a private wrong
breach of oblig. to a person
Victim sues
usual remedy - compensatory damages ($)
Crime is a public wrong
breach of oblig. to society
Gov’t prosecutes
usual remedy - punishment
CRIME TORT
Murder Wrongful Death
Break & Enter Trespass
Theft Conversion of Property
Assault Assault &/or Battery
Tort & Contract have:
▪ 1 similarity:
▪ structure
▪ 4 differences:
1. Source of primary obligations
2. Privity
3. Compensation
4. Risk management
1 Similarity --- Structure
Both involve primary & secondary obligations
Primary duty – tell people how to act
Secondary duty – tell people how to act after
they breached primary duty (i.e. compensation)
Tort
Primary duty -- do not harm another
2ndary duty – to compensate for injury
Contract
Primary duty -- fulfill your contractual promise
2ndary duty – provide compensation for expectations not
received
4 Differences b/n Tort & Contract
A. Source of Primary Obligations
B. Privity
C. Compensation
D. Risk management
Tort
▪ imposed by law
▪ E.g. Negligence -- duty of care
Contract
▪ voluntarily created by parties
▪ E.g. duty to pay price for an item you agreed to purchase
Tort
▪ Duty is imposed upon everyone by law
▪ Everyone must comply whether he/she/it agreed or not
▪ E.g. I must not hit you
Contract
▪ Duty is imposed because you agreed
▪ E.g. I must paint your house only if I agree to do so
▪ Only parties to contract can sue or be sued in connection
with the contract
Tort
▪ Purpose – prevent harm
▪ Therefore, put injured person back into the position he/she was
in before the tort
▪ backward-looking damages
Contract
▪ Purpose – get benefits you agreed to provide
▪ Therefore, put the injured person into the position he/she would
be in if you had fulfilled your promise
▪ forward-looking damages
Tort
▪ Duty arises by law
▪ You may not realize you have a duty
▪ Difficult to manage risk
Contract
▪ Duty arises by your voluntary agreement
▪ You know your duty
▪ Easier to manage risk
Tort Law strikes a balance b/n competing
interests
protect free choice vs deter harmful behaviour
encourage innovation &efficiency vs compensate losses
physical harm vs economic loss
Different Torts depending upon mental
culpability (blameworthy):
A. Intentional Torts
B. Negligence Torts
C. Strict Liability Torts
Intentional Torts
Assault
Battery
Intrusion Upon Seclusion
False imprisonment
Trespass to land
Interference with chattels
Conspiracy
Intimidation
Interference with contractual relations
Unlawful interference with economic relations
Deceit
Negligence Torts
Occupiers’ liability
Nuisance
Negligence
Professional negligence
Product liability
Strict Liability Torts
Animals
Rylands v. Fletcher
“intent”
Definition of “intent” will vary depending upon the
type of tort
liability for deliberate act
▪ deliberate performance of prohibited act
▪ protect valuable interests (eg physical safety, freedom)
eg battery, false imprisonment
▪ deliberate infliction of harm
▪ protect financial interests from purposeful harm
eg inducing breach of contract, intimidation
Ch. 4 & 5
Intent to HARM
Economic
and
Reputation, business
Intent
to ACT privacy interests
(economic
losses,
Body, liberty, contractual
property, relations)
chattel (my
stuff)
17
liability for careless behaviour
▪ freedom of action vs. freedom from harm
E.g. negligence, nuisance, occupiers’ liability
But you are not liable if action/activity was
carried out reasonably in the circumstances
Ch. 6
liability without intention or negligence (i.e.
carelessness)
Rare -- unusually dangerous activities
▪ activity is permitted but you’ll be liable for any harm even if
you did not intend it or you were not careless
▪ E.g. ownership of wild animals (you own a poisonous snake that
escapes but you did not intend that it escape and you were not
careless; snake bites someone; you are liable)
▪ e.g. Transporting dangerous products
▪ E.g. Rylands v. Fletcher (1868)
Defence -- voluntary assumption of risk
Cowles v. Balac (2005) OSCJ – African Lion Safari
1. Liability Insurance
2. Vicarious Liability
3. Remedies
4. Alternative Compensation Scheme
Since torts can occur at any time (often
unexpectedly), risk management is very
important:
1. Identify potential risks
2. Minimize the risks
3. Insure risks
liability insurance contract
▪ insured pays premium
▪ insurer protects insured
▪ duty to defend claims
▪ duty to indemnify insured for loss if liable
Definition -- Being liable for another’s tort
Employer (“E”) is often (not always) vicariously
liable (“VL”) for employee’s (“e”) tort
Liability Insurance is advisable for E
Why should an E be VL for e’s tort ?
1. Enhances compensatory fn
2. May enhance deterrence fn
3. Fairness – bus. should bear cost of what took
place
A business is not VL for independent
contractor’s (i.e. a person that is not controlled by the business
hiring them with respect to the task to be performed e.g. plumber,
electrician) tort
Usual characteristics of an e:
1. E controls what, how, when, where work is
done
2. E’s equipment & premises used
3. e paid regular wage or salary
4. e integrated into E’s bus.
E is VL for tort committed by e if :
1. E authorized the act; or
2. act was closely connected to employer-authorized
acts (i.e. remoteness) (Bazley v. Curry 1999 SCC)
E is not VL if e’s tort occurred completely
outside of employment relationship
Effects of VL
Victim can sue e or E or both
1. e directly liable for own tort
2. E is VL for e’s tort
3. E directly liable if it committed a separate
independent tort (eg careless training of careless e)
e generally liable to E
▪ but E usually does not sue e
See Business Decision Case 3.1 (p.71)
Alberto (who was poorly trained) carelessly operates
chairlift causing you to fall out of chairlift & get seriously
injured
You could sue:
1. Alberto personally for tort of negligence;
2. Ski Resort on grounds of VL for e’s negligence; &
3. Ski Resort personally for failing to train Alberto properly
Bazley v. Curry (1999) SCC (p. 70)
Def. was a charitable organization operating facility for
emotionally troubled children
Def. carried out a reasonable investigation of Curry before
hiring him but did not learn that he was a pedophile
Curry sexually assaulted children within the facilities
Is Def VL for what Curry did ?
Decision:
Curry’s Employer was found VL for Curry’s tort.
Curry’s tortious acts were closely connected to
what his Employer authorized him to do.
The Employer authorized Curry to carry out
intimate acts of parenting (e.g. bathing; putting
them to bed; clothing ) thereby increasing the risk
of wrongdoing -- combination of job-created power
and job-created intimacy.
(c) 2019 Nick Iannazzo. All Rights Reserved. 32
See Ch. #3 - Case Study # 11 (Pony Express
Delivery) on page 79
(c) 2019 Nick Iannazzo. All Rights Reserved. 33
i. compensatory damages ($)
ii. punitive damages ($)
iii. nominal damages ($)
iv. injunction
Backward-looking
▪ Pltf is monetarily placed as if tort never occurred
▪ (Note: breach of contract -- forward-looking damages)
Damages are limited by concepts of:
1. Remoteness; &
2. Mitigation
Def. responsible for losses that:
1. it in fact caused; and
2. are not too remote (or were reasonably
foreseeable).
Would a reasonable person in def.’s position foresee that
such an activity might cause the sort of harm the pltf
suffered ?
NOTE: remoteness does not apply to intentional torts &
strict liability
Definition -- when the 1. Reasonable Steps -- Pltf
pltf takes steps to need only take reasonable
minimize the losses that steps to M a loss
result from the def.’s tort
2. No Duty -- Pltf does not
Def. not liable for losses have to M.
that could have been
reasonably avoid by pltf 3. Extent of Loss -- if Pltf
does not M Pltf will not
get compensation for
losses that could have
been reasonably avoided
4. Costs of M -- Pltf entitled
to costs of M
(ii) punitive damages
punish def.
SCC – def. must commit a tort and must have acted in a “harsh,
vindictive, reprehensible and malicious “ manner
▪ Whiten v. Pilot Insurance Co. (2002) SCC
(iii) nominal damages
symbolically recognize commission of some torts (i.e. applies to
intentional torts only since need not prove damages)
$1.00
(iv) injunction (non-monetary award)
order to do or refrain from doing something
ACS
comp. outside of tort law
▪ based on injury rather than wrong
▪ paid by central fund rather than tortfeasor
▪ No need to commence legal action
Examples
workers’ comp. schemes (all prov.)
No-fault auto accident insurance (some prov.)
ALTERNATIVE COMP. SCHEME TORT LAW
Pros Pros
▪ Comp. without proof of wrong ▪ full comp. for wrongful losses
▪ quicker & less expensive ▪ deterrence: blame is assigned
process to tortfeasor
Cons Cons
▪ generally less than full comp. ▪ Comp. limited to wrongfully
▪ a trade-off: more coverage but occurring losses
less depth ▪ expensive & time-consuming
▪ no deterrence
