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1 INTRODUCTION • What Is a Tort? a Tort Is a Civil Wrong “Tort” Is a French Word That Simply Means 'Wrong' Compensati

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1 INTRODUCTION • What Is a Tort? a Tort Is a Civil Wrong “Tort” Is a French Word That Simply Means 'Wrong' Compensati INTRODUCTION • What is a Tort? • A Tort is a civil wrong • “Tort” is a French word that simply means ‘wrong’ • Compensation takes place by means of CL remedies in damages • A Tort is not a crime or breach of contract HOWEVER they can occur simultaneously (eg): assault = crime + Tort • There are 4 categories of actions underlying the theories of liability: strict liability torts / torts of intent / torts of negligence and residual actions (ie: defamation, nuisance) • What are the functions of Tort Law? • There are several motivations for the functions and goals of Tort Law, including: 1) Compensation for injury • the dominant function 2) Deterrence • to deter wrongdoing • fails if damages flow to customers without penalizing the wrongdoer 3) Corrective justice • identifying and remedying the specific actions of wrongdoers and correct the personal injustices to victims 4) Retribution • addresses anger and resentment • tort becomes a civilized vehicle for securing retribution 5) Education • educational dimension • litigants are taught and become aware of the requisite standards of conduct as well the need to recognize and accommodate the legitimate interests of others 6) Accountability • holding individuals responsible for their non-criminal conduct • Concepts: • Volition • You must have a conscious mind when committing a Tort • Only really used when dealing with mentally ill persons or minors • Parents are not vicariously liable for the actions of their children UNLESS they were a party to the action of the child OR negligent in supervising / controlling the child • Intent • Definition: the desire to bring about a result or consequence of action rather than the desire to do the physical act itself • General rule: If the result is not desired, then the action is unintentional • Intent is for the result, not for the action itself (this limits the Scope of intentional Torts) 1 • Just because there might be an absence of direct intent, does not mean that a Tort has not been committed (exceptions to the general rule): (1) Transferred Intent: intending to commit a Tort against one person, and committing the same Tort against someone else. If the consequences are certain / substantially certain and result from the same action, then it is said that there can be imputed intent (2) Constructive Intent: intention to commit a Tort against an individual, and committing an entirely different Tort against the same individual • Motive • Does not usually play any part in the cause of action • If the Plaintiff can demonstrate that there was malice on behalf of the Defendant, establishing motive can be helpful in adding punitive damages in calculating the size of the award to be given to the Plaintiff • Duress • Does not negate intention in the Law of Torts • (Gilbert v Stone) • Provocation • Requirements: 1) The Defendant loses power of self-control 2) The Defendant’s actions were proximate in time to Plaintiff’s actions • If there is transferred intent, provocation does not apply • Mistake • Has no bearing on the issue of intent and is not relevant to Intentional Tort elements • Can be taken into account when considering the size of the award in damages that is owed to the Plaintiff • Neither A MISTAKE OF FACT or MISTAKE OF LAW is recognized as a defence to Intentional Tort liability • Remedies: • Remedies may be: 1) ordered by the Court 2) achieved by way of settlement 3) granted by automatic operation of the Law • When the Plaintiff succeeds with a Tortious claim, remedies can include: 1) Damages – payment of a sum of money (monetary award) to cover loss or injury • Types of damages: Pecuniary = special damages (for monetary loss) Non-pecuniary = general damages (for non-monetary loss) • Nominal damages = usually to redress a violation of a legal right • Compensatory damages = compensation for actual loss 2 • Aggravated damages = when the wrongdoer’s actions are so outrageous that the harm done is worse than it would have otherwise been had the Defendant acted appropriately after the Tortious action • Punitive damages = general objective – punishment / deterrence / denouncement (they are not compensatory in nature) • Disgorgement damages = strip the Defendant of any benefits obtained as a result of his/her wrongdoing (rarely applied in Canadian Law) 2) Injunction – a declaration involving certain acts to be performed or prohibited 3) Declaration – a Court order confirming a parties’ rights 4) Restitution 5) Extra-judicial remedies – self-help remedies capable of being enforced outside of the Courts (eg): recapture of chattels / re-entry of land / abatement of nuisance 3 .
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