Introduction to Tort Law Lecture Notes September 22, 2021
The Nature of Tort Law
Tort Law Defined:
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Branch of Civil law and deals with civil wrongs
Tort comes from Latin meaning wrong, twisted, or breach of a right, or injustice
Tort is an act that gives rise to a wrong on another.
Different Categories of Legal Wrongs:
Public Wrongs:
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Involves the society as a whole, obligation is owed to the society
Addressed through criminal law
Action is taken by the Crown against the wrongdoer
Private Wrongs:
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Civil wrongs
Involve individual, obligation is owed to an individual
Addressed through civil law, (tort, contract, trust laws)
Action is taken by the plaintiff (victim) against the defendant (wrongdoer)
Monetary paid for the damages
Types of tort actions:
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Intentional Torts
Unintentional Torts (negligence)
Strict liability
Economic torts
Intentional torts:
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Trespass to the person and property
o Person- Assault, battery, false imprisonment
o Property- Land
Unintentional torts:
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Duty of Care on everyone, we owe a duty to our neighbours
Our actions, or omission, do not cause harm to our neighbours
Reasonable mans test – court apply to see what a reasonable person would have done in
that situation?
Strict Liability:
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The victim, P, does not need to prove the D is at fault
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Liability is strict, as there is injury or a loss, the D is responsible and needs to compensate
the P
o Example – injured worker on the job, the employer is under strict liability
Economic torts:
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Economic aspects of daily life
Inducing breach of contracts
o 2 parties have an agreement, enter contract, third party does something that forces
a party member to breach the agreement, the 3rd person needs to be responsible
Torts law and Contract law:
Similarities and differences between torts and contracts?
What is contract law?
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Branch of civil law
Applied to recognize and regulate the rights and duties that arise from contracts
Aims to govern the rights and responsibility that arise from contracts
Agreement between 2 parties
Can be enforced legally if any party breaches the agreement
If someone breaches a term of the contract can be enforced legally
Common Law dictates that contracts can only be entered if there exists an offer,
acceptance, consideration, and mutually agreement. (4 elements)
The interrelationship between Torts L and Contract Law:
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Structure
o They both involve primary and secondary obligations
 Primary Obligation – stand alone, independent
 How people ought to behave
 Secondary Obligation – they do not stand alone, they are dependent
 Seek to award compensation
 How to act if a PObl is breached
 Is remedial
Source of primary obligations
o Obligations in tort are imposed by law
o Obligations in contract are created by the parties
Privity and Enforcement
o In contract, enforcement of obligations is subject to the doctrine of privity
 D. of Privity – Contracts are only binding on parties in the agreement.
ONLY binding on the terms of the agreement. A 3rd party cannot enforce
the terms and obligations of the contract, and cannot be sued
o In torts, complete strangers can sue if a breach occurred and injury sustained
Compensation
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Comp. in tort law looks backward
o To put the P back in a position been enjoyed back if the wrong had not
been committed
Comp. in contract looks forward
o What would have happened if the contract in the future followed through
Volition
o Torts and contractual obligations may not be exclusively a function of
partier’ volition
o Decision and choice
o torts law - The terms are not a decision or choice of the parties involved
 rights are decided by courts
Historical Development of Tort Law:
Before the 11th century:
During the 11th century:
What is a writ?
Types of writs:
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Habeas Corpus
Mandamus
Certiorari
Quo warranto
Prohibition
Scott v. Shepherd
F – P is suing D for trespass and assault
I – Whether the injury is a result of the original action?
R – Anyone who initiated the firecracker is liable.
A – judgment out to be for the defendant
C – Appeal was dismissed, throwing firecracker a part of the original act
Leame v. Bray
F – Driving Horse carriage into the P’s carriage, breaking P’s collarbone.
I – Whether the P’s injury arose from the D’s action?
C – Received injury from force, the immediate injury from the immediate act of force
Cook v. Lewis (Appeal)
Strict Liability – Cook did the shooting, Lewis got shot
F- Lewis out hunting, shot his gun, injured Cook.
I- Whether the defendants are still liable if they cannot prove who did it.
R- Both liable, Cook still sustained harm.
Lesson 4: Intentional Interference with the Person
Basic Principles of Liability:
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What are the basic principles of liability?
How can a plaintiff establish intentional tort?
o The P must prove a wrongful and voluntary act done with intent that leads to
injury to the P.
o Volition: the wrongful act must be voluntary or volitional. An act is voluntary if
directed by the defendant’s conscious mind.
o Intent: the intent need not be hostile or blameworthy. When a person performs an
act with the intent to do harm to the other. (or p. 52) desire to cause injury.
Sometimes it does not need to be hostile or blameworthy, not desirable (ie. Saving
a child from a car by applying force).
How can the plaintiff establish intent?
Trespass to the Person:
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What is intentional interference with the person?
o Direct intentional interference with the persons body or liberty.
o Derived from the writ of vi et armis.
What is trespass to the person?
o Assault, battery, and false imprisonment (sexual assault and rape included)
What is trespass vi et armis (trespass with force/arms resulting in injury to another’s
person or property)?
Assault:
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What is assault?
o Creating reasonable fear of immediate physical contact, Page 70.
o Reasonable apprehension of immediate physical contact.
When does a person commit assault?
o Criminal Code Section 265
Battery:
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Intentionally touching someone without their consent. Touch in an offensive manner
The touch doesn’t have to be an injury, but offends the P. (Page 63)
Lecture 5: False Imprisonment – October 4, 2021
Types of False Imprisonment
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A bank robber holding people hostage or keeping them on the floor while they rob
Restraining anyone without justification
Bird v. Jones
Facts
Issue
Ratio
Analysis
Jones (Defendant) prohibited Bird (Plaintiff) from moving in the direction he
wished to go. Plaintiff was free to remain where he was, or move in any other
direction but the one direction obstructed by Defendant. Plaintiff sued
Defendant for false imprisonment.
Plaintiff was on the highway and wanted to continue along it. Part of the public
highway was closed for spectators who paid to see a boat race. Defendant
restricted Plaintiff from passing on wards in the direction in which he declared
he wished to go. Plaintiff was allowed to remain unmolested where he was.
Although obstructed from continuing forward, Plaintiff was at liberty to move
in any other direction. Plaintiff sued Defendant for false imprisonment. The
jury returned a verdict for Plaintiff. Defendant appealed.
Whether prohibiting a person from moving in one direction, when all other
directions are unobstructed, enough to constitute a boundary for the tort of false
imprisonment?
No. Defendant’s request for a new trial was granted.
* A prison may have boundaries that are large or narrow, visible or tangible,
movable or fixed, but it must have some boundary. In this case, Defendant only
prohibits Plaintiff from moving in one set direction. In order to maintain an
action for false imprisonment, Plaintiff must be confined to a boundary. In this
case, Defendant caused Plaintiff to suffer a loss of freedom. Imprisonment is
something more than the loss of freedom. Imprisonment includes the notion of
restraint within some limits defined by a will or power exterior to our own. In
this case, Plaintiff was not constrained to any determinable boundary.
Discussion. In order to have a claim for false imprisonment, the Plaintiff must
have been confined to some boundary, whether it be tangible or intangible. In
this case, Plaintiff was not restrained to a bounded area. Plaintiff still had the
option to remain in one spot or proceed in a different direction. Defendant only
prevented Plaintiff from continuing in one specific direction. Plaintiff may have
suffered a loss of freedom, but this loss of freedom did not constitute false
imprisonment.
Conclusion
Dissent. (Chief Justice Lord Denman) The dissent had no idea that a particular
boundary would to be necessary to constitute imprisonment. The liberty to do
something else does not appear to affect the question of imprisonment. As long
as one is prevented from doing what one have a right to do, of what importance
is it that one permitted to do something else?
https://www.casebriefs.com/blog/law/torts/torts-keyed-to-epstein/intentionally-inflicted-harmthe-prima-facie-case-and-defenses/bird-v-jones/
Campbell v. S.S. Kresge Co.
Facts
Plaintiff was shopping at a store but decided to leave without purchasing
anything.
Defendant is a policeman employed by store as security guard.
An anonymous informant told Defendant that Plaintiff may be a shoplifter.
Defendant confronted Plaintiff in parking lot, showed his badge, and escorted
her back into the store before letting her leave.
Plaintiff is suing for False Arrest.
Issue
Does Defendant’s actions constitute False Arrest?
Ratio
Yes. Judgement for Plaintiff.
Analysis
Even though the Defendant did not intend to detain Plaintiff, the Defendant’s
identity as a policeman gave him authority over Plaintiff to compel her to go in
a direction she did not want to go. This fulfills the requirements for False
Arrest.
Conclusion
https://briefcaseofbriefs.tumblr.com/post/178116650631/campbell-v-ss-kresge-co
Herd v. Weardale Street, Coal and Coke Co. Ltd.
Facts
Issue
Ratio
Analysis
Herd (H) was a miner in a coal mine. H attended work at 9.30 am, and in the
ordinary course of work he would be entitled to be raised to the surface from
the mine at the end of his shift at 4pm. When H arrived at work in the mine, he
wrongfully refused to being work, and requested to be raised to the surface in
the lift at 11am. His employers, Weardale Steel, Coal and Coke Company, the
owners of the colliery (D), refused to allow H to be lifted to the surface until
1.30 pm. H was thus detained in the mine until that time. H sued D for damages
for false imprisonment.
H claimed that his prevention from using the lift until 1.30pm, which caused
him to be imprisoned in the mine as it was the only means of exit, constituted
false imprisonment.
There was no false imprisonment due to the operation in the present case of the
common law doctrine of volenti non fit injuria, which means that a person
cannot bring an action against another person for tort or delict if they had
willingly placed themselves in a position where harm might result, knowing
that some degree of harm might result. In this case, the imprisonment
constituted the ‘harm.’ Following the case of Robinson v Balmain New Ferry
Co. Ltd [1910] AC 295, H was only entitled to the use of the exit on the terms
on which he had entered. H had breached his employment contract by refusing
to do the work he was ordered to do. This breach of contract justified his
detention in the mine until the lift could be used at 1.10 that day.
Conclusion
https://www.lawteacher.net/cases/herd-v-weardale-steel.php
Questions in Tort
Problem Questions:
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Understand FIRAC
Brief the case
Lesson 6: Wrongful Prosecution – October 6, 2021
Wrongful Prosecution:
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Includes both a tort and a crime, and both civil and criminal cases
Elements of Wrongful Prosecution:
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Malicious Prosecution - Pg. 85
The Tort of Abuse of Process:
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P 92
“It focuses on the misuse of civil proceedings for a collateral or illicit purpose other than
the resolution of the claim… in contrast to the tort of malicious prosecution, the plaintiff
does not have to prove that the earlier proceedings terminated in his or her favour, or that
the defendant lacked reasonable and probably grounds for engaging in the earlier
proceedings…”
Nelles v Ontario
Facts
Issue
Ratio
Analysis
Conclusion
Whether legal officials should have legal immunity.
Establishes the elements for the test for malicious prosecution.
Miazga v. Kvello
Facts
Issue
Ratio
Analysis
Conclusion Charges dismissed against the prosecutor
https://www.scc-csc.ca/case-dossier/info/sum-som-eng.aspx?cas=32208
Henry v British Columbia
Facts
Issue
Ratio
Analysis
Conclusion
Elements for Proving Malicious Prosecution:
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The proceeding must have been initiated by the defendant
The proceedings must have been terminated in favour of the plaintiff
The absence of reasonable probable cause
Malice, or a primary purpose other than that of carrying the law into effect
o What is “probable cause:
o What is malice?
Remedies for Wrongful Prosecution: