Tort Law

Front 1

A tort is a _____ _____ (but not a _____ __ ______) for which a ________ sues a _______ to obtain ________.

Back 1

-civil wrong
-breach of contract
-plaintiff
-defendant
-damages

Front 2

Civil wrong means:

Back 2

a private wrong between private parties, such as individuals or companies

Front 3

Tort Law vs. Criminal Law
What are the goals of each?

Back 3

Tort: monetary compensation - damages
Criminal: punish the criminal and deter future crimes

Front 4

Tort action is brought on by who?

Back 4

The plaintiff

Front 5

What is the burden of proof for Tort Law vs. Criminal Law?

Back 5

Tort: balance of probabilities
Criminal: beyond a reasonable doubt

Front 6

What do damages attempt to do?

Back 6

Return the plaintiff to the state before the tort.

Front 7

Tort Law vs. Contract Law
Who do each laws involve?

Back 7

Tort: strangers
Contract: prior agreements between parties, with mutual obligations

Front 8

List 5 examples of Tort Law.

Back 8

-battery (being in a fight)
-false imprisonment (locked in a room)
-malicious prosecution
-negligence (most common tort)
-defamation (gossiping)

Front 9

What are the goals of Tort Law? Why do people sue?

Back 9

-compensation
-deterrence
-vindication
-punishment

Front 10

Describe compensation. List the barriers.

Back 10

The primary purpose of Tort Law, and usually the reason the plaintiff brings about the case.

Barriers:
-fault requirement
-expense of litigation (lots of $)
-defendant may not have money
-embarrassment
-insufficient evidence
-disruptive of relationships

Front 11

Explain deterrence.

Back 11

Discourages defendant from repeating the particular behaviour.

Front 12

What is the hardest type of Tort Law to deter?

Back 12

Negligence: because careless defendants don't care about the tort damages they have to pay

Front 13

What is the easiest type of Tort Law to deter?

Back 13

Defamation

Front 14

What are punitive damages?

Back 14

Money awarded above and beyond compensation to punish the defendant for what they have done.

Usually in intentional torts or defamations.

Front 15

What is vindication mostly used for?

Back 15

Property rights; trespassing

Front 16

Why do plaintiffs exercise vindication rights?

Back 16

Simply to exercise their rights, because they usually have not suffered loss.

Front 17

What do intentional torts and volition involve?

Back 17

Intention: the defendant intends to perform the tort and bring about the consequences.

Volition: the defendant must be in control of their mind and body

Front 18

What is an example of involuntariness in Intentional Torts?

Back 18

A seizure

Front 19

Battery: Intentionally causing _____ or ______ _______ with another person.

Back 19

-harmful
-offensive
-contact

Front 20

What are examples of harmful contact?

Back 20

-punching
-slapping
-kicking
-striking with implements

Front 21

What are examples of offensive contact?

Back 21

-spitting
-kissing
-poking
-cutting hair

Front 22

What circumstances can consent be implied in?

Back 22

-holding out arm for flu shot
-handshakes
-contact sports
-two guys getting into a fight

Front 23

Bettel v. Yim
Describe the case.

Back 23

Yim owned a store. Bettel and friends were throwing lit matches into the store. Store lights on fire. Yim grabs Bettel and breaks his nose. Bettel sues Yim, wins. Yim was liable in battery.

Front 24

Assault in terms of Tort Law is the creation of a reasonable apprehension of _________ physical contact.

Back 24

-imminent

E.g., approaching someone with fists raised

Front 25

Assault is often a prelude to what?

Back 25

Battery

Front 26

What are conditional threats?

Back 26

Generally not assaults. May be assaults if the defendant has the apparent intent and ability to cause imminent physical contact. Can be assault even though it is in the form of words.

Front 27

False imprisonment is intentionally bringing about _____ ________ of plaintiff's movements.

Back 27

Total restraint

Front 28

False imprisonment can involve what two forms?

Back 28

Physical and psychological

Front 29

What is malicious prosecution?

Back 29

the groundless initiation of criminal proceedings against the plaintiff which terminate in the plaintiff's favour and are brought out of malice or for some other improper purpose.

Front 30

Discuss the elements of malicious prosecution.

Back 30

1. Criminal charges initiated by the defendant
2. Charges terminate in the plaintiff’s favour: apply if you are acquitted at trial
3. Absence of reasonable and probable cause
-A matter of professional judgment, not personal opinion
4. Malice or other improper purpose
-Willfully abusing office or course of justice
-Cannot be inferred from lack of personal belief in the guilt of the
accused
-need to prove the police had a bad motive for bringing you to court
5. Material damage

Front 31

Summarize the case of Miazga v. Kvello Estate.

Back 31

Criminal charges were laid against the plaintiff foster parents based on allegations of several children. The criminal charges were later stayed after the children admitted to fabricating the sexual abuse allegations. The plaintiff sued everyone for $10 million.

Front 32

Privacy T-12

Back 32

Put something in

Front 33

Breach of privacy: Explain appropriation of personality.

Back 33

Someone making money by using someone's name, etc. without their permission

Front 34

Breach of privacy: Explain Unwanted media attention (if not newsworthy or a public concern)

Back 34

Printing a picture of a young offender, disclosing someone has HIV, etc.

Front 35

Breach of privacy: Explain harassment, stalking

Back 35

Can feel as if there will be imminent contact, could claim assault or emotional pain. If the stalker comes on your property, you can sue them for trespassing.

Front 36

Breach of privacy: explain surveillance of some private activities

Back 36

Taping your telephone, putting a camera in a bathroom, etc.

Front 37

What are the elements of breach of confidence?

Back 37

1. Confidential information
2. Disclosed in circumstances suggesting need for confidentiality
3. Unauthorized use causes harm to plaintiff

Front 38

What are two case examples of breach of confidence? Discuss them.

Back 38

Trade secrets (Cadbury Schweppes): Defendant company got hold of a recipe through an ex-employee of new company

Exploitation of personal circumstances (Szarfer v. Chodos): Plaintiff was fired over a slow recovery of a broken arm

Front 39

What are the three defences to intentional torts?

Back 39

-Consent
-Self-defence
-Defence of third parties

Front 40

Discuss consent.

Back 40

Defendant is not liable if plaintiff consented to alleged actions (battery, imprisonment, etc.)
-Can be express or implied
-Extends to risks normally inherent in that act, ie. contact sports

Front 41

Discuss the thin skull rule.

Back 41

If initial kind of injury was foreseeable, the defendant will be liable for the unforeseeable consequences that resulted from plaintiff’s pre-existing susceptibility or weakness

Front 42

The plaintiff must have suffered damages in order to have a claim in negligence. What are the three main types of damage?

Back 42

Pecuniary
Non-Pecuniary
Punitive

Front 43

What is defamatory material?

Back 43

Anything that lowers the plaintiff in the esteem of ordinary members of society
Includes literal meaning and innuendo; Words, images, gestures, overall impression

Front 44

What are the requirements of self-defence?

Back 44

-Honest and reasonable belief that harmful contact is imminent
-Reasonable force
-Limited ability to use lethal force

Front 45

What are intentional torts?

Back 45

based on the defendant's intention to interfere with the plaintiff's person or property

Front 46

What is negligence?

Back 46

actions are based on the defendant's carelessness or unintentional wrongdoing

Front 47

What is strict liability?

Back 47

arises in limited situations in the absence of intent or negligence but is subject to some defences

Front 48

What is absolute liability?

Back 48

arises simply because the defendant did a proscribed act that caused the plaintiff a loss

Front 49

What is the neighbour principle?

Back 49

To love your neighbor becomes in law, you must not injure your neighbor. Lawyers ask but who is my neighbor?

Front 50

In regards to Duty of Care, what do the steps of the Anns/Kamloops Test consist of?

Back 50

Step 1)
(a) Reasonably foreseeable
(b) Proximity: closeness between the parties
Step 2) Policy reasons to negate liability

Front 51

What are the 4 duties to the unborn?

Back 51

-Pre-Conception Wrongs
-Wrongful Birth
-Wrongful Life
-Wrongful Pregnancy

Front 52

What does one have to prove in terms of causation?

Back 52

Must only prove negligent act was a cause, NOT the most important cause, or a direct cause, or an immediate cause

Front 53

What is the "but for" test?

Back 53

But for defendant’s negligence, would the plaintiff have suffered the injury?

Front 54

Can you sue someone for causing you grief? ie. making you sad

Back 54

no

Front 55

What are the 2 competing interests of defamation?

Back 55

1. right to reputation
2. freedom of expression