Torts in Civil Law: An Overview
What is a Tort?
A wrongful act that causes harm in civil law.
Intentional Torts
- Defamation
- Trespass
- False Imprisonment
- Malicious Prosecution
Non-Intentional Torts
- Careless action and negligence
Onus of Proof
“On the balance of probabilities”
Parties in a Civil Case
- Plaintiff: Party who is suing
- Defendant: Party being sued
Torts
Vicarious Liability
Employers are vicariously liable for the harm caused by their employees.
False Imprisonment
To hold or confine a person against their will with no legal right to do so.
Malicious Prosecution
Causing a person to be prosecuted for a crime without an honest belief that the crime was committed.
Four Elements
- Criminal charges are laid
- Charges were later dismissed
- No reasonable and probable grounds for charges
- Improper motive for laying charges
Intentional Torts
Trespass to Land
Trespass is entry onto another’s land without their permission or a legal right to do so.
– Reasonable force can be used to remove a trespasser if they do not leave when asked to do so.
Trespass to Goods
Intentionally damaging or interfering with another’s goods.
Conversion
Taking something that belongs to someone else without permission, almost like theft.
Assault
A threat of physical harm.
Battery
Intentional physical contact without consent.
– Provocation, not a defense, can reduce the damages awarded.
Defenses
- Consent: Must be informed
- Self-Defense: I defended myself and used only as much force as reasonably necessary
Invasion of Privacy (Intrusion Upon Seclusion)
When a deliberate, significant, and offensive invasion of personal privacy occurs.
Defamation
A lie that damages the reputation of a person or business.
– Statement must be communicated to a third party.
Slander
Lie is spoken but not recorded.
Libel
Lie is recorded (taped, printed, broadcast).
Defamation by Innuendo
Implies derogatory meaning without explicit statements.
– Context of the remark is crucial.
Defenses to Defamation
- Truth
– Truth is a complete defense against defamation claims. - Innocent Dissemination
– Applies to those unaware of the defamatory content (e.g., bookstores, libraries, ISPs). - Absolute Privilege
– Statements made under oath or by politicians in parliamentary proceedings. - Qualified Privilege
– Protects communications made by individuals with a right or duty to comment (e.g., reporting to a legal authority). - Fair Comment
– Opinions on public figures or matters of public concern are not defamatory if a reasonable person could honestly hold that opinion. - Public Interest Responsible Communication
– Defense applies if the story is in the public interest, due diligence is exercised, and a minor part is untrue.
Reportage: Allows for quoting defamatory remarks if necessary to describe a dispute, provided it’s clear they are quotes.
Injurious Falsehood
False statements about goods or services that cause deliberate harm to the reputation of goods or services.
Injurious Falsehood Cheat Sheet
Individuals can critique poor products if:
- They do not trespass.
- Their comments are true or constitute fair comment.
- They have a qualified privilege.
Defenses for Injurious Falsehood
- Qualified Privilege
– Applies if reasonable care was taken to investigate the product.
– Comments are made for the benefit of consumers. - Truth
– If the statement is true, it cannot be considered an injurious falsehood.
Deceit
A lie that causes economic loss, often called civil fraud.
– Defendant makes a false statement, defendant knows statement was untrue.
Damages
Punitive damages may be awarded in cases of deceit.
Intentional Business Torts
- Passing off
- Inducing breach of contract
- Misuse of confidential information
Passing Off
Passing off your goods as someone else’s.
– Usually in order to cash in on the value that other brand has acquired.
Ex. counterfeit goods, knock-offs, imitation Chanel
Plaintiff Must Prove
- Goodwill or reputation is attached to plaintiff’s product
- Public was confused
- Passing off caused economic losses
Remedies
Pecuniary and punitive damages, Anton Piller order.
Intentional Torts: Summary of Key Concepts
Misuse of Confidential Information
Confidential information includes:
- Designs & plans
- Client lists
- Secret formulas
- Trade secrets
Restriction: Employees, agents, or others cannot take, sell, or use confidential information outside the company.
Inducing Misuse of Confidential Information
Definition: Intentionally inducing another party to misuse confidential information.
Intentional Interference with Economic Interests
Requirements:
- Defendant intended to injure the plaintiff.
- Defendant interfered with the plaintiff’s economic interests through illegal or unlawful means.
- The interference caused economic losses.
Negligence Overview
Negligence: An unintentional, careless act that causes reasonably foreseeable harm. Most civil law cases involve negligence.
Key Elements of Negligence:
- Duty of Care: The defendant must owe a duty to the plaintiff. This duty is often determined by foreseeability (whether harm to the plaintiff was predictable).
- Standard of Care: The required level of care is what a “reasonable person” would do under similar circumstances. Higher standards may apply to professionals like doctors.
- Causation: It must be proven that the defendant’s actions directly caused the damages. This can involve the “but for” test (the harm would not have happened but for the defendant’s actions) or the material contribution test if multiple factors are involved.
- Remoteness of Damages: Only damages that are reasonably foreseeable are recoverable. If harm is too remote or unexpected, the defendant may not be liable.
Notable Cases and Concepts
- Donoghue v. Stevenson: Established the principle of duty of care, indicating one must avoid acts likely to injure a ‘neighbor’ (those affected by their actions).
- Anns Test: A two-part test to determine whether a duty of care exists and if any policy reasons should limit that duty.
- Thin Skull Rule: A defendant must take the plaintiff as they find them, meaning they are liable for all injuries, even if the plaintiff has a pre-existing condition that makes the injury worse.
- Crumbling Skull Rule: A defendant is only responsible for accelerating an existing condition, not the condition itself.
Damages in Negligence Cases
- Compensatory Damages: Aim to restore the plaintiff to the position they would have been in had the injury not occurred.
- Aggravated Damages: Address the emotional distress or humiliation suffered.
- Punitive Damages: Imposed to punish particularly egregious behavior and deter similar actions in the future.
Definition of the Anns Test
The Anns Test is a legal framework used in negligence cases to determine whether a duty of care exists. It involves two steps:
- Proximity and Foreseeability: Assess if a relationship exists between the parties that is close enough to justify imposing a duty of care (foreseeability of harm is key).
- Policy Considerations: Consider if there are any reasons, grounded in public policy, to limit or exclude this duty of care. For example, a court may decide not to impose a duty if it would have negative implications for society.
Negligence Overview
Definition: Careless actions causing foreseeable harm.
4 Elements of Negligence:
- Duty of Care: Exists if harm to the plaintiff is foreseeable.
Donoghue v. Stevenson: Duty to avoid acts likely to harm neighbors.
Anns Test: (1) Proximity and foreseeability; (2) Policy considerations. - Standard of Care: Level of care a “reasonable person” would use.
– Higher standard for professionals (e.g., doctors). - Causation: Link between defendant’s actions and plaintiff’s harm.
But For Test: Harm would not have occurred but for the defendant’s actions.
Material Contribution Test: Used if multiple factors contributed to harm. - Remoteness of Damages: Damages must be foreseeable.
Mustapha v. Culligan: Psychological damages must be reasonably foreseeable.
Thin Skull Rule: Defendant is liable for full extent of injuries, even if the plaintiff had a pre-existing condition.
Crumbling Skull Rule: Defendant liable for worsening an existing condition, not the underlying condition.
Defenses to Negligence
- Contributory Negligence: Plaintiff partly at fault.
- Voluntary Assumption of Risk: Plaintiff accepted risks (e.g., waivers).
- Waivers: Release a party from liability; validity depends on clarity and understanding.
Damages
- Compensatory: Restore plaintiff to pre-incident state.
- Aggravated: Address humiliation/distress.
- Punitive: Punish and deter extreme misconduct.
Occupier’s Liability
Definition: Responsibility of property controllers for safety.
Duty of Care: To keep premises safe for visitors.
– Not always the owner, but the person in control.
Test for Liability: What is reasonable under the circumstances?
Defenses: Reasonable safety procedures in place and followed.
Host Liability
Types:
- Commercial Hosts: (e.g., bars, restaurants)
– Must prevent intoxicated patrons from harm.
– Can be partially liable for incidents. - Business Hosts: (e.g., office parties)
– Duty to ensure employee safety.
– Measures: stop alcohol service early, provide transportation. - Social Hosts: (e.g., private gatherings)
– Generally no duty, unless serving minors or aware of intoxicated guests.
– Courts reluctant to impose duty without clear risks.
Product Liability
Manufacturer’s Negligence: Duty to ensure safe products.
– Applies to foreseeable users.
Types:
- Negligent Process: Issue during production (e.g., contamination).
- Negligent Design: Faulty design leading to danger.
- Inadequate Warnings: Failure to inform about risks.
Strict Liability: Not applied in Canada for products, except for dangerous escapes (e.g., leaks).
Professional Liability
Definition: Higher standard for professionals due to client trust.
Fiduciary Duty: Obligation to act in the client’s best interest.
– Includes confidentiality and avoiding conflicts of interest.
Exemption Clauses: Limits professional liability, but some professions (e.g., doctors) cannot use them.
Detinue
When you’re legally in possession of an item but refuse to return it.
Nuisance
Use of land by one landowner that unreasonably interferes with another occupier’s ordinary use of adjoining land.
– Loud noises, odors, pollution, golf balls
– Secondary picketing can constitute a nuisance, invasion of privacy.
– Pre-existing is not a defense.
Public Nuisance
Use interferes with public property.
– Toxic chemicals spilled into waterway
Defenses to Negligence
- Contributory Negligence: The plaintiff may be partially responsible for their injuries (e.g., not wearing a seatbelt).
- Voluntary Assumption of Risk: When a plaintiff knowingly engages in risky activities, they may be considered to have assumed the risk, possibly releasing the defendant from liability.
- Waivers: Legal agreements where the plaintiff agrees not to sue in case of injury. Validity depends on whether the waiver was properly communicated and clearly worded.
Inducing Breach of Contract
Definition: Intentionally causing one party to breach their contract with another.
Example:
– A has a contract with B.
– C induces A to breach the contract with B.
– A is liable for breach of contract; C is liable for inducing that breach.