Civil Law (Curriculum Guide, Resource)

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Law 12 Tort Law Ms. Ripley

Civil Law (Curriculum Guide, Resource)

I. The Nature of Civil Law in Canada

Civil law governs the legal relationships between individuals that do not directly involve the crown. Civil law is designed to provide an avenue for settling disputes between individuals according to the rule of law. As compared to criminal law, civil law addresses remedies for wrongs against individuals, rather than punishment or retribution for wrongs against society.

Civil law is the constitutional purview of the provincial governments. In most of Canada, it is based primarily upon the system of common law (except in the province of Quebec, where the Civil Code is the basis for civil law), although civil statutes have been developed by provincial jurisdictions as governments deem them necessary for the public good. In Saskatchewan, examples include areas such as consumer protection and warranties, and no-fault insurance regulation.

Most civil law principles originate from two categories of civil law:

·  torts - the area of civil law that deals with wrongs or injuries inflicted upon one party by another, outside of the context of a formal relationship or contract

·  contracts - the area of civil law that deals with people in formal relationships.

II. Torts

In the case of a tort, there is no underlying agreement that establishes the rights between parties, as there is in a contract. In theory, the parties involved are strangers according to the law, brought together only by misfortune which results in the tort action. Therefore, the liability flows not from an agreed upon set of rights and responsibilities as defined in a contract, but rather from the law itself.

Torts fall within three categories of subdivision. They include:

·  negligence

·  intentional torts

·  strict liability

III. Negligence

Negligence occurs when someone acts carelessly, or fails to act at all, resulting in injury or loss to another person. Depending on their relationship, people have a legal duty of care to others to act in a certain way or to not act carelessly.

Examples of a legal duty of care include the duty that motorists owe to other motorists and pedestrians, the care that doctors must give to their patients, the supervision that teachers must give to their students and the care that home owners must give to their visitors. This general duty to be careful, and to behave in a way that society considers appropriate, is a responsibility under the law.

However, the law does not expect that people will always behave perfectly. It is expected that people will use the skills and abilities that a reasonable person in their particular situation would use. To prove negligence, the injured person must show that the wrongdoer caused the injury, and that the loss or injury is real. To be compensated with damages, the court must find that the harm done through negligence was foreseeable.

IV. Intentional Torts

As people interact during day-to-day life, they are likely to come into physical contact with other people. For instance, if an individual is standing in a crowded elevator while others are getting on, he/she may be bumped, or a foot may be stepped on. No real harm is done. No one is behaving in a negligent manner or intending to cause harm.

When harm is deliberately caused, for example, when one person punches another in the face, an intentional tort has been committed. The person doing the punching is responsible for any injury caused by the action.

Intentional torts take place when someone deliberately comes into contact with another person or his or her property to the point where damage is done. Intentional torts that involve harm to people include:

·  battery

·  assault

·  false imprisonment

·  invasion of privacy

·  malicious prosecution

·  defamation.

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Intentional torts which involve property include:

·  harm to goods or land through trespass

·  nuisance.

V. Occupier’s Liability

The tort law requires that each occupier of land (owner, renter, or leasor) maintain the duty of care with respect to others invited or trespassing onto the property. The standard of care varies according to the circumstances of the entry. For example, the standard of care owed to an invited visitor is higher than that owed to a trespasser.

VI. Invitees and Licensees

The highest standard of care is owed to a person on premises by invitation, either expressed or implied, for the purpose of business or material interest. This includes students in a school, service personnel coming to make repairs, theatregoers and customers in a store. A lower standard of care is required regarding the licensee (a social guest, or one from whom the owner will gain no economic benefit), while the lowest standard of care is owed to the trespasser.

VII. Vicarious Liability

In some circumstances, responsibility lies not only with the person undertaking (or failing to undertake) an action, but also with an individual responsible for the actions of another. Examples include, responsibility of a vehicle owner for the vehicle even when the owner is not the operator, a parent who is responsible for the actions of a child or an employer responsible for an employee. In such cases, liability insurance is available to offset damages that may be associated with vicarious liability.

VIII. Strict Liability

In certain situations people will be held responsible for damage even though they did not act negligently or intend to cause any loss or harm. This is called strict liability.

Strict liability may apply to people who keep wild animals, such as tigers or snakes. Even though safety precautions such as cages or fencing may be in place, the keeper of the wild animals would be held legally responsible in the event of harm caused by their escape. Another example in the storage of dangerous chemicals on private property. If damages occur, the property owner could be held strictly liable and would have to pay for the harm done, even if not directly negligent.

IX. Remedies

The civil law focuses upon remedies to situations involving harm to persons or property. These remedies are the purpose of a tort action by a plaintiff. Courts will award damages when a tort action is successful. The person who is at fault will have to monetarily compensate the person who has suffered loss or injury. The money may be compensation for such things as repairs to property, medical expenses, lost wages or necessary travel expenses. Compensation for pain and suffering and mental and emotional distress may also be awarded. This type of loss is difficult to measure in money. A judge will give an amount he or she thinks is reasonable. In certain cases a judge can award punitive damages. Television dramas often show juries awarding enormous amounts of money as compensation to injured people. In Canada, having a jury in a civil case is rare, and windfall compensation is rarer still.

In cases where goods are involved, a court may order the return of the goods to the rightful owner. An injunction is also a possibility in a tort action, if harm is ongoing.

Civil Law

Civil law is law that regulates private legal affairs.

Civil law includes categories of law including:

·  tort law

·  contract law

·  family law

·  property law

·  wills and estates

·  employment law.

Supremacy of Parliament

Civil law in Saskatchewan is based primarily in the system of common law but, because of our belief in the supremacy of parliament, governments have developed statutes, and have the right to develop statutes, to address specific areas of civil law.

Tort

A tort is an injury, physical, emotional, economic or otherwise, suffered by a person for which another may be held legally responsible.

Liability

Liability is the legal responsibility for a wrongful action. When liability is assessed to an individual, damages may be awarded to the injured party as remedy for the injury.

Plaintiff

In a civil action, the party initiating the action is called the plaintiff.

Defendant

In a civil action, the person alleged to have undertaken the tortious act is called the defendant.

Negligence

Negligence is careless conduct that causes injury to another person.

In order to prove a negligence claim, the plaintiff must prove:

·  duty of care - the defendant should have been looking out for someone like the plaintiff

·  standard of care - the defendant did not take all reasonable steps to prevent the plaintiff’s injury

·  causation - the defendant’s actions, and not some other factor, truly caused the plaintiff’s injury

·  damages - the plaintiff actually suffered some injury that must be compensated with money.

Duty of Care

Duty of care is the obligation that is required to ensure that others are not harmed by one’s actions.

Foreseeability

As a precondition to imposing duty of care, a court will determine whether a reasonable person could expect that a certain result might follow from an action. If the result is foreseeable for a reasonable person, then liability may be imposed for the action. If foreseeability is not reasonable, courts may not award damages.

Standard of Care

The expected standard of care is that which a reasonable person would meet.

The expected standard of care differs according to the relationship of the parties to a tort. For example, someone with the duty of care for a child, such as a teacher, parent or sports team coach has a higher standard of care than an individual in relationship with an adult.

Causation

Causation involves whether an act or omission of the defendant resulted directly in the injury to the plaintiff.

Damages

Damages are the award by a court to a plaintiff who successfully proves that injury suffered is the direct responsibility of the defendant.

Battery

Under tort law, an individual victim may sue for damages if subjected to intentional physical touching by another person without consent, called battery.

Assault

Under tort law, an individual victim may sue for damages for assault if subjected to the threat of force where there is reasonable fear of immediate physical contact.

False Imprisonment

Under tort law, an individual victim may sue for damages if illegally confined against his/her will.

Privacy

The tort of invasion of privacy is evolving in light of the advancing technologies in the communications industry.

Malicious Prosecution

A tort of malicious prosecution is an action for damages for wrongfully initiating criminal proceedings against an individual.

Defamation

Defamation is damage to a person’s reputation or good name, either in oral form, called libel, or written form, called slander.

Trespass

Trespass occurs when goods are damaged, when land is infringed upon through presence of another person or if another person places debris on the land of an owner.

Nuisance

Under tort law, an individual victim may sue for damages when something interferes with that person’s use and enjoyment of personal property.

Occupier’s Liability

Under tort law, occupiers (both owners and renters) have responsibility toward persons who their come onto property and might be injured.

Vicarious Liability

Vicarious liability is the responsibility of one person for the acts of another. Examples include, the responsibility of an employer for the actions of an employee, and responsibility of a vehicle owner for the actions of another person operating the vehicle.

Fault

Fault is the responsibility for an action.

Strict Liability

Strict liability means liability without fault.

In cases of strict liability, damage is sufficient grounds for assessing liability, except in those instances involving an act of God.

Damages

Damages are compensation (usually in monetary form) awarded for tort losses. There are three types of damages the court may order, including:

·  nominal damages - small monetary amounts awarded in situations where a plaintiff was wronged, but did not suffer any real hardship from the wrong

·  compensatory damages - monetary amounts awarded to reimburse a plaintiff for all financial loss suffered. (These include general damages awarded for unspecified injury, and specific damages awarded for all specific losses.)

·  punitive damages - monetary amounts reserved for situations in which the court feels that the plaintiff has acted in a callous fashion, and that a deterrent message needs to be sent to the defendant and public at large.

Injunction

An injunction is an order from a court that someone either do something, or stop doing something.

X. Defences to Torts

The courts recognize several defences to torts. In the area of negligence, defences include:

·  voluntary assumption of risk

·  participation in illegal activities

·  inevitable accident

·  contributory negligence.

In the area of intentional torts, defences include:

·  informed consent

·  self-defence

·  legal authority

·  discipline

·  necessity

·  recapture of goods.

Voluntary Assumption of Risk

A person who participates in an activity known to be risky can not sue for damages if the injury is of the type known to occur in that activity.

Participation in Illegal Activities

Injuries related to participation in illegal activities are not eligible for compensation, even if the wrongdoer was negligent.

Inevitable Accident

The defence of inevitable accident requires the defendant to prove that conditions beyond personal control occurred, and that an accident could not have been avoided, even with great skill and care.

Contributory Negligence

Contributory negligence is a defence in which the defendant tries to prove that the plaintiff contributed to injuries suffered.

Informed Consent

Informed consent is a defence whereby the defendant tries to prove that the plaintiff agreed to interference with their person, property or goods.

Self-Defence

Self-defence may be used as defence to the tort of battery, if the defendant is able to prove the fear of physical injury, and only if the force used is not excessive or beyond what is reasonably necessary under the circumstances.

Legal Authority

Tort law allows for arrest under legal authority similar to criminal law, using reasonable force. An individual sued for assault and battery during an arrest may use the defence of legal authority, because the individual has a legal right to arrest another using reasonable force, if the person being arrested has had an opportunity to submit peacefully and chooses not to do so.