0. 2
The Law
of Torts
© 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.

1. CH 2
LEARNING GOALS
Identification of common torts (intentional and unintentional)
Identification of tort situations in business
Understand principles of law imposed by the courts to determine tort liability
Understand how the courts apportion liability where more than one person is responsible
Understand how damages or compensation is determined by a court
Essentials of Canadian Business Law, 1st Canadian Edition Slide 2-1 © 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.

2. 2.1
Tort Law
Tort:
acts or omissions recognized by law as civil wrongs causing injury to others or their property
Actions may have:
tort aspect = civil action by plaintiff against a defendant based on compensation
Criminal aspect = criminal charges by the Crown against an accused based on punishment
Essentials of Canadian Business Law, 1st Canadian Edition Slide 2-2 © 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.

3. 2.1
Tort Law
Unintentional Torts – commit the acts without intent, usually by accident or carelessness
Negligence
Occupiers’ Liability
Vicarious Liability
Strict Liability
Commercial Negligence
Intentional Torts – decision to commit the acts, not always intention to harm
Assault & Battery
False Imprisonment
Defamation
Trespass
Nuisance
Essentials of Canadian Business Law, 1st Canadian Edition Slide 2-3 © 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.

4. 2.1
Tort Law
Torts: legal rules with individual definitions as set out in common law and based on precedence
What torts can you identify?
Essentials of Canadian Business Law, 1st Canadian Edition Slide 2-4 © 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.

5. 2.3
Assault and Battery
These are separate torts that usually occur together
Assault – threat of injury to a person, with the intent to carry out the force
Battery – intentional and deliberate force or touching to a person without consent
Essentials of Canadian Business Law, 1st Canadian Edition Slide 2-5 © 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.

6. Assault and Battery (Cont’d)
2.3
Assault and Battery (Cont’d)
Defences to Battery:
Self-defense – reasonable force can be used to stop the threat and protect a person or property, but the force cannot be excessive
Consent – if physical force is known and agreed to then only if excessive would battery occur, and in medical the consent must be for a particular procedure
What examples of assault and battery can you identify (include medical procedures)?
Essentials of Canadian Business Law, 1st Canadian Edition Slide 2-6 © 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.

7. False Imprisonment Comprised of two aspects:
2.4
False Imprisonment
Comprised of two aspects:
Imprisonment – restraint or confinement, including remaining based on embarrassment of public accusation
False – no lawful right to restrain – for example no theft committed
Essentials of Canadian Business Law, 1st Canadian Edition Slide 2-7 © 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.

8. False Imprisonment (Cont’d)
2.4
False Imprisonment (Cont’d)
Defences:
Limited as requires lawful reason to restrain, usually crime committed
Best method is call the police, as they may apprehend on ground the plaintiff may have committed a crime
Essentials of Canadian Business Law, 1st Canadian Edition Slide 2-8 © 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.

9. Defamation Defamation: False statement
2.5
Defamation
Defamation:
False statement
Publication – made to other party or parties
Slander – verbal
Libel – written form
Loss reputation by person, business or service
What forms of communication can be defamatory?
Essentials of Canadian Business Law, 1st Canadian Edition Slide 2-9 © 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.

10. Figure 2-1
Defamation
Essentials of Canadian Business Law, 1st Canadian Edition Slide © 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.

11. Defamation (Cont’d) Defences Truth: must be proven in fact
2.5
Defamation (Cont’d)
Defences
Truth: must be proven in fact
Absolute privilege: situations of public interest (courts, boards, Parliament)
Qualified privilege: made in good faith with importance to public (letter of reference)
Fair Comment: raised by the media based on honest opinion with public information
Essentials of Canadian Business Law, 1st Canadian Edition Slide © 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.

12. Trespass to Land and Goods
2.6
Trespass to Land and Goods
Entry on land without permission or consent
May have damage, but even intrusion gives rise to the tort
Remedies include damages or injunction (court order to prevent to action/trespass)
Essentials of Canadian Business Law, 1st Canadian Edition Slide © 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.

13. Nuisance – Private and Statutory
2.7
Nuisance – Private and Statutory
Private
Undue interference with enjoyment of property
Serious interference not mere inconvenience
Courts will examine
Interests of community over individual interests
Reasonable use
Essentials of Canadian Business Law, 1st Canadian Edition Slide © 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.

14. Nuisance (Cont’d) Private Nuisance
2.7
Nuisance (Cont’d)
Private Nuisance
Remedies: damages and injunction (court order to refrain from certain acts)
Statutory Nuisance
Areas where governments have regulated certain activities for the benefit of the community as a whole
What areas can you identify for government regulation?
Essentials of Canadian Business Law, 1st Canadian Edition Slide © 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.

15. Negligence Most common tort Negligence - summary
2.8
Negligence
Most common tort
Negligence - summary
Duty – owed to another not to cause harm
Breach – duty is not met
Damages – injury caused by breach
Essentials of Canadian Business Law, 1st Canadian Edition Slide © 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.

16. Negligence Duty Standard of care owed not to injure another
2.8
Negligence
Duty
Standard of care owed not to injure another
“Reasonable person” test
Careful and cautious in his or her conduct
Determined by courts in each situation and varies with
Activity or action
Risk
Skill or expertise
Essentials of Canadian Business Law, 1st Canadian Edition Slide © 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.

17. Negligence – Breach of Duty
2.8
Negligence – Breach of Duty
After plaintiff proves duty owed then must prove:
Breach of duty – defendant did not meet the standard of care for the situation
To whom do you owe a duty of care when you drive?
What is the standard you owe?
What situations would be a breach of this duty?
Essentials of Canadian Business Law, 1st Canadian Edition Slide © 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.

18. Negligence – Damages Causation
2.8
Negligence – Damages
Causation
Proximate cause: plaintiff’s negligence is the direct and only cause of the injury, if not plaintiff’s liability will be limited
Remoteness or Foreseeability Test: reasonable person would have foreseen the damage or injury occurring from the action taken
Essentials of Canadian Business Law, 1st Canadian Edition Slide © 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.

19. Negligence (Cont’d) Contributory Negligence
2.8
Negligence (Cont’d)
Contributory Negligence
Plaintiff is also responsible (partly or entirely) for his or her injuries
Court will apportion the damages based on the extent of responsibility
Voluntary Assumption of Risk
Person voluntarily participates in an activity which carries a chance of risk
Essentials of Canadian Business Law, 1st Canadian Edition Slide © 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.

20. Other Unintentional Torts – Occupiers’ Liability
2.9
Other Unintentional Torts – Occupiers’ Liability
Duty of care owed by an occupier, person in possession of land, to others on the land
Common Law:
Trespasser (no permission) – no duty of care, but cannot deliberately injure
Licensee (permission for licensee’s benefit) – duty to warn of hidden dangers
Invitee (permission for occupier’s benefit) – highest duty to warn of unusual dangers that exist that a reasonable and careful person should know; duty met if sufficient warnings are given
Statute Law:
Many provinces have legislation imposing a standard of care owed to trespassers and visitors
Essentials of Canadian Business Law, 1st Canadian Edition Slide © 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.

21. Figure 2-2
Defamation
Essentials of Canadian Business Law, 1st Canadian Edition Slide © 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.

22. Other Unintentional Torts – Vicarious Liability
2.9
Other Unintentional Torts – Vicarious Liability
Liability for the actions of another
Employment: Employer is liable for torts committed by an employee while carrying out duties assigned, as the employer exercises control and supervision over the employee
Partnership: Partnership is liable for torts committed by the partner if the actions are in the course of partnership business
Essentials of Canadian Business Law, 1st Canadian Edition Slide © 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.

23. Other Unintentional Torts – Strict Liability
2.9
Other Unintentional Torts – Strict Liability
Activities are so dangerous that they result in liability regardless of care taken or duty of care met
Governments by laws use strict liability for environmental damage
Essentials of Canadian Business Law, 1st Canadian Edition Slide © 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.

24. Commercial Negligence
2.10
Commercial Negligence
Professional Negligence
Duty owed is that of a reasonable person who is a fully qualified member of that profession with standards established by a governing body or association
Very high standards of care
Protection by insurance
Essentials of Canadian Business Law, 1st Canadian Edition Slide © 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.

25. Commercial Negligence (Cont’d)
2.10
Commercial Negligence (Cont’d)
Negligent Statements
Reports or advice by professionals must meet the standard set by the profession
Liability to others who rely on the statements and suffer a loss
S.C.C. page 47
Liable to foreseeable users of information
Determination of appropriate limitation on group using the information, therefore not liable to the world at large
What professions are impacted by this tort?
Essentials of Canadian Business Law, 1st Canadian Edition Slide © 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.

26. Commercial Negligence (Cont’d
2.10
Commercial Negligence (Cont’d
Manufacturers’ Negligence
High duty of care is owed to the consumer that they will not be injured by the product
Donoghue v. Stevenson “snail in the bottle” case is the leading case establishing liability to the consumer
Essentials of Canadian Business Law, 1st Canadian Edition Slide © 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.

27. Commercial Negligence (Cont’d)
2.10
Commercial Negligence (Cont’d)
Manufacturers’ Negligence
Standard of care is required to ensure products will not damage or injure the user or consumer
Adequate testing is essential to avoid liability
If a product is dangerous then adequate warnings and proper instructions are also essential to avoid liability
Essentials of Canadian Business Law, 1st Canadian Edition Slide © 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.

28. Defences to Claims of Negligence
2.11
Defences to Claims of Negligence
Act of God
No liability for loss caused by an unanticipated event beyond the control of plaintiff
Waiver
Express or implied promise not to sue
Usually in writing
Must be brought to the attention of person waiving the right
Must refer to the type of injury contemplated at the time
Essentials of Canadian Business Law, 1st Canadian Edition Slide © 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.

29. Defences to Claims of Negligence (Cont’d)
2.11
Defences to Claims of Negligence (Cont’d)
Release
Promise to discharge a person from liability and not to sue
Usually written release for compensation for loss or damage suffered
Statute of Limitations
Legal action must begin within a reasonable time, most provinces have statutory limits
If action is not commenced within the set time period the right to sue is lost
Essentials of Canadian Business Law, 1st Canadian Edition Slide © 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.

30. Defences to Negligence
2.11
Defences to Negligence
Lawful Right
Person is granted the right to action under a duty to protect the public at large, then will not be liable
When would these defences apply?
Essentials of Canadian Business Law, 1st Canadian Edition Slide © 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.

31. Tort Remedies 1. Special Damages 2. General Damages
2.12
Tort Remedies
Monetary (money) Damages to place person back in same position
1. Special Damages
Established by specific receipts or records
2. General Damages
Estimated usually based on expert testimony
3. Punitive or Exemplary Damages
Punishment for particularly reckless actions, usually intentional torts not ordinary negligence
4. Nominal Damages
Small amount of money to recognize violation, but court costs may also be given adding to the cost
Essentials of Canadian Business Law, 1st Canadian Edition Slide © 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.

32. Special Remedies Special Remedies
2.13
Special Remedies
Special Remedies
Injunction – court order requiring stoppage of certain action
Essentials of Canadian Business Law, 1st Canadian Edition Slide © 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.

33. Business-Related Torts
2.14
Business-Related Torts
Slander of Goods
Untrue statement as to the nature of goods
Slander of Title
Untrue statement with respect to ownership of goods
Fraudulent Misrepresentation
Intentional false statement to deceive another into entering a contract
Allows rescission of the contract and damages
Fraudulent Conversion of goods
False pretenses to acquire goods
Essentials of Canadian Business Law, 1st Canadian Edition Slide © 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.

34. SUMMARY Torts are civil wrongs causing injury to another
CH 2
SUMMARY
Torts are civil wrongs causing injury to another
Intentional – often criminal association
Assault and battery, false imprisonment, defamation, trespass, nuisance
Unintentional – negligence, most common type of tort, with many aspects
Liability by professionals, manufacturers, occupiers, vicarious and strict liability
Defences are available for tort actions
Remedies are used to compensate for losses caused by tort actions
Essentials of Canadian Business Law, 1st Canadian Edition Slide © 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.