CHAPTER 2
TORT LAW
LEARNING GOALS
- To identify common intentional and unintentional torts.
- To identify business situations where torts are most likely to occur.
- To understand the principles of law, and the standard of care or conduct imposed by the courts to determine tort liability.
- To understand how the courts apportion liability where more than one person is
responsible for a tort.
5. To understand how damages or compensation is determined by a court.
CHAPTER COMMENTARY
Chapter 2 introduces the first area of the law and some of the more important (and common) acts of intentional and unintentional interference with persons or property. Since tort law represents one of the oldest areas of the law, its development is one of the best examples of laws that were established in response to the needs of society. Most of these principles were formulated long ago, and have been refined over the years as society changed. The basic intentional torts and the principles associated with them are examined in the first part of this chapter, and the concepts applied to business-related activities are found in the last part of the chapter. Note that the business-related torts set out are those where the intention to injure competitors is an essential component of the tort itself.
Chapter 2 also examines a number of the more common torts that involve intentional and unintentional interference with the rights, property, or person of another. These various torts rank among the oldest and, in some cases, constitute crimes under the Criminal Code. For the purpose of reenforcement, it might be a useful exercise to note once again that some intentional torts (and in particular the intentional torts covered in this chapter) may be subject to both civil and criminal proceedings if they constitute crimes as well as civil wrongs.
Many of the intentional torts described in this chapter in some instances have a defence, which may constitute justification for the act, and may wholly or partially absolve the actor from liability. These should be discussed, along with their limits. E.g: assault/battery and the act of selfdefence. Similarly, the tort of defamation, and the defence of privilege.
Most of the intentional torts described in the chapter are generally wellknown to students, and class discussion should perhaps be used to explore the various defences in detail, and the issue of damages or compensation for the party injured by the wrongful act. Because these torts tend to be deliberate acts, this aspect of the various torts should be emphasized. Care should be taken, however, to note the exceptions such as battery situations, where the 'touching' is without consent, but where the intention is not to injure. For example, a medical practitioner performs a surgical procedure without the patient's consent. The medical practitioner may have had the best of intentions, and performed the
operation to improve the patient's health, but in doing so without consent would have committed a battery.
The chapter also introduces a number of new legal terms that you will find described in the text material. Definitions of these terms should be committed to memory or understood thoroughly by the students. In addition to the text description, the Glossary at the back of the text might be consulted for brief definitions of the various terms.
Business-related torts and crimes tend to be those torts designed to injure competitors by slandering their goods or their business name. Students should be reminded that the reputation of a business and the reputation of a product are important 'assets' of a business, and entitled to protection under tort law. The protection of a reputation of business (or product) is possible by way of an action for slander of goods or slander of title, but it should also be noted that untrue statements about the reputation of a business person would be actionable as defamation.
Certain business-related activities are 'crimes' as well, and these are discussed briefly in the text. Note that some of these activities are covered in greater detail in other chapters of the text. For example, conspiracies to fix prices, etc., are covered in Chapter 15 which deals with the Competition Act. Instructors may wish to expand upon the material in Chapter 2 by reference to the material in Chapter 15 if they do not intend to include the latter Chapter in their course material.
Torts associated with unintentional interference with persons or property are generally associated with careless acts or a failure to act, and the concepts of duty not to injure, foreseeability, and standard of care should be considered in their application to these types of torts.
It is important to note that the concept of strict liability has remained over the years as an important determinant of liability in cases where persons keep in their possession something capable of causing injury if it should escape. This must usually be something which is not normally confined, or something which, if confined in a particular way, creates or has the potential of causing injury if it escapes. Examples would be the confinement of a dangerous wild animal, or the storage of a large quantity of water in a reservoir. The courts generally consider both of these activities to be inherently dangerous, and if the animal or water should escape, the likelihood of injury to a neighbour is very great. Judges generally assume that the person who engages in this type of activity is aware of the dangers involved, and of the potential for harm. As a consequence, they are usually held responsible for any damage caused if escape occurs, regardless of the precautions taken to prevent the escape. Liability in these instances would likely be determined on the basis of strict liability.
Apart from cases where strict liability might be imposed, tort liability is generally concerned with the right of a person to live without interference or injury to their person or property by others. Tort law, consequently, imposes a duty on persons not to injure others, or their property. This concept of a duty not to injure forms the basis of a great many kinds of torts: negligence, nuisance, defamation, etc., as well as most crimes of violence.
Students should be made aware that the duty is not absolute, otherwise it would represent a strict liability situation. In most cases, the duty will be subject to a standard of care, or the concept of foreseeability. On these points, as the text indicates, the standard of care is usually the standard of the "reasonable person", and the conduct of the person is compared to that standard. In a similar fashion, the question of foreseeability is usually
framed by the words "would a reasonable person under similar circumstances have foreseen the possibility of injury?"
The doctrine of foreseeability, the standard of the "reasonable person," and their application to the question of liability should be reenforced by way of examples, such as the following incident:
"A" owns two large dogs and he frequently allows them to run loose on his grounds. The grounds are fenced, and the type of fencing is such that the dogs could not slip between the fence wires. One side of the property borders on a pathway regularly used on weekends by riders on horse back. "A" allows his dogs to run free on a weekend while a group of horses and their riders are on the pathway. The dogs, by their sudden barking, frighten one of the horses, and it throws its rider. The rider suffers an injury, and later institutes legal proceedings against the dog owner.
The questions which might be raised here include the following:
(1) Does the dog owner have a duty not to injure the rider?
(2) What is the nature of the duty, if any?
(3) Did the dog cause the injury? Was it the proximate cause?
(4) Was the injury which the rider suffered foreseeable by the dog owner?
By a "reasonable person"?
(5) What consideration should be given to the rider's actions? Should the rider have foreseen the possibility of the horse bolting when near the dogs? Is the rider obligated to take precautions under the circumstances?
(6) If the fence was such that the dogs could easily pass through it and enter on the
pathway, what effect might this have on your answers to the above questions?
A series of incidents similar to the above may be used to discuss and illustrate the various concepts covered in the chapter.
Note that in some provinces (such as Ontario) virtual strict liability may be imposed by statute upon dog owners for injuries caused by their dogs (subject to certain exceptions). The common law standard is consequently replaced by a higher standard in these instances. See for example, Dog Owner's Liability Act, R.S.O. 1990, c. D-16.
Another useful approach might be to describe an incident, then have the class examine the incident by raising the questions: Does the defendant owe a duty to the plaintiff? What is the duty owed? What standard or care must be maintained? Did the defendant breach the duty? Did the plaintiff suffer an actionable loss as a result?
In any class discussion, the standard of care, foreseeability of injury, and the reasonableness of the actions of the defendant should be underscored as the important determinants of liability in order to avoid giving the impression that once a duty is owed, any injury which follows is actionable. In this regard the comments concerning the duty of care of professionals might be used as an example.
In the case of a professional person performing a service, (e.g. a lawyer or accountant) the standard is normally that of an ordinary skilled member of the profession, and if the work is done in accordance with that standard, there is usually no liability in the case of injury. The important point to note here is that the duty is not absolute. If the professional exercises the degree of skill of the average member of the profession, that is
all that can reasonably be required of the person, assuming that the profession has established a reasonable standard. It is only when the performance is below the standard that liability normally will arise.
Some class discussion time should also be devoted to professional negligence in the form of negligent misstatements and negligent misrepresentation by accountants, lawyers, etc., and the extent of their liability.
The owner or occupier of land is not subject to the ordinary rules of negligence, but instead, at common law is subject to three different standards, depending upon the type of person that enters upon the land. The landowner owes the lowest duty to the trespasser. In this case, the duty is usually to avoid deliberately injuring such a person. The courts more recently, however, have occasionally applied the test of "ordinary humanity".
The licensee is entitled to a warning of any unusual or hidden dangers, since he or she enters on the lands with the consent of the landowner. The invitee, to whom the highest duty is owed, must be warned or protected from any dangers of which the landowner is aware, or ought to be aware as a reasonable person.
With regard to occupier's liability, a number of provinces have passed legislation to eliminate the distinction between licensees and invitees, and to establish a statutory standard of care for occupiers. British Columbia, Alberta, and Ontario are provinces that have taken this approach.
It might also be worth noting that the liability of occupiers of land, which in the past has been subject to some codification in the form of petty trespass Acts and other similar legislation, has been the subject of more extensive codification in some provinces in recent years. This has tended to delineate the rights and duties of landowners and other occupiers of land. See for example, Ontario, the Occupiers' Liability Act, R.S.O. 1990, c.0-2.
Product liability is a growing area of tort law as products become more complex. It is essentially an ordinary negligence action, where the manufacturer may be held liable if the consumer is injured by a product that was negligently made, or where the user was not warned of the dangers associated with the use of the product. The case of McAlister (or Donoghue) v. Stevenson which is described briefly in the text on page 49, and case law on
p. 50 outlines this liability, and the standard of care required of manufactures of products.
Classroom review of the chapter should also include a review of the defences which might be raised to a claim in tort. Instructors should note, however, the limitations on waiver as a defence, since the circumstances under which torts arise may have a significant impact on the concept as a defence.
Tort remedies are outlined on pages 53-55 of the text as they apply to unintentional torts. The topic of remedies is covered elsewhere in the text as well with respect to other legal relationships. Some instructors advise students at this stage that other remedies (such as injunctions) will be encountered later on in the text, and the remedies used in tort actions, such as money damages will also be dealt with as they apply to other types of injuries.
REVIEW QUESTIONS
1. In law, what is a tort?
Answer:
A legal term used to describe activities that either intentionally or unintentionally cause injury to others or their property, where the person causing the injury has no legal right to do so.
2. Why are some intentional torts also considered to be crimes?
Answer:
Because of the state’s obligation to protect the lives and property of its citizens, many intentional torts are considered to be wrongs against society or crimes. The state consequently makes these torts crimes, and enforces them as such.