CHAPTER
2
The Law
of Torts
PowerPoint® Presentation Prepared By
Susan McManus, Mount Royal College
© 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.
CH 2
LEARNING GOALS
 Identification of common torts (intentional and
unintentional)
 Identification of tort situations in business
 Understand principles of law imposed by the
courts to determine tort liability
 Understand how the courts apportion liability
where more than one person is responsible
 Understand how damages or compensation is
determined by a court
Essentials of Canadian Business Law, 1st Canadian Edition
Slide 2-1
© 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.
2.1
Tort Law
Tort:
 acts or omissions recognized by law as civil
wrongs causing injury to others or their property
 Actions may have:
 tort aspect = civil action by plaintiff against a
defendant based on compensation
 Criminal aspect = criminal
charges by the Crown
against an accused
based on punishment
Essentials of Canadian Business Law, 1st Canadian Edition
Slide 2-2
© 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.
2.1
Tort Law
Unintentional Torts –
commit the acts without
intent, usually by accident
or carelessness





Negligence
Occupiers’ Liability
Vicarious Liability
Strict Liability
Commercial Negligence
Essentials of Canadian Business Law, 1st Canadian Edition
Slide 2-3
Intentional Torts –
decision to commit the acts,
not always intention to
harm





Assault & Battery
False Imprisonment
Defamation
Trespass
Nuisance
© 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.
2.1
Tort Law
Torts: legal rules with individual definitions as
set out in common law and based on precedence
What torts can you identify?
Essentials of Canadian Business Law, 1st Canadian Edition
Slide 2-4
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2.3
Assault and Battery
These are separate torts that usually
occur together
 Assault – threat of injury to a person, with the
intent to carry out the force
 Battery – intentional and deliberate force or
touching to a person without consent
Essentials of Canadian Business Law, 1st Canadian Edition
Slide 2-5
© 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.
2.3
Assault and Battery (Cont’d)
Defences to Battery:
 Self-defense – reasonable force can be used to
stop the threat and protect a person or property,
but the force cannot be excessive
 Consent – if physical force is known and agreed to
then only if excessive would battery occur, and in
medical the consent must be for a particular
procedure
What examples of assault and battery can you
identify (include medical procedures)?
Essentials of Canadian Business Law, 1st Canadian Edition
Slide 2-6
© 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.
2.4
False Imprisonment
Comprised of two aspects:
 Imprisonment – restraint or confinement,
including remaining based on embarrassment of
public accusation
 False – no lawful right to restrain – for example no
theft committed
Essentials of Canadian Business Law, 1st Canadian Edition
Slide 2-7
© 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.
2.4
False Imprisonment (Cont’d)
Defences:
 Limited as requires lawful reason to restrain,
usually crime committed
 Best method is call the police, as they may
apprehend on ground the plaintiff may have
committed a crime
Essentials of Canadian Business Law, 1st Canadian Edition
Slide 2-8
© 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.
2.5
Defamation
Defamation:
 False statement
 Publication – made to other party or parties
 Slander – verbal
 Libel – written form
 Loss reputation by person, business or service
 What forms of communication can be
defamatory?
Essentials of Canadian Business Law, 1st Canadian Edition
Slide 2-9
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Figure 2-1
Defamation
Essentials of Canadian Business Law, 1st Canadian Edition
Slide 1-10
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2.5
Defamation (Cont’d)
Defences
 Truth: must be proven in fact
 Absolute privilege: situations of public interest
(courts, boards, Parliament)
 Qualified privilege: made in good faith with
importance to public (letter of reference)
 Fair Comment: raised by the media based on
honest opinion with public information
Essentials of Canadian Business Law, 1st Canadian Edition
Slide 2-11
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2.6
Trespass to Land and Goods
 Entry on land without permission or consent
 May have damage, but even intrusion gives rise to
the tort
 Remedies include damages or injunction (court
order to prevent to action/trespass)
Essentials of Canadian Business Law, 1st Canadian Edition
Slide 2-12
© 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.
2.7
Nuisance – Private and Statutory
Private
 Undue interference with enjoyment of property
 Serious interference not mere inconvenience
 Courts will examine
 Interests of community over individual interests
 Reasonable use
Essentials of Canadian Business Law, 1st Canadian Edition
Slide 2-13
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2.7
Nuisance (Cont’d)
Private Nuisance
 Remedies: damages and injunction (court order
to refrain from certain acts)
Statutory Nuisance
 Areas where governments have regulated certain
activities for the benefit of the community as a
whole
 What areas can you identify for government
regulation?
Essentials of Canadian Business Law, 1st Canadian Edition
Slide 2-14
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2.8
Negligence
Most common tort
Negligence - summary
 Duty – owed to another not to cause harm
 Breach – duty is not met
 Damages – injury caused by breach
Essentials of Canadian Business Law, 1st Canadian Edition
Slide 2-15
© 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.
2.8
Negligence
Duty
 Standard of care owed not to injure another
 “Reasonable person” test
 Careful and cautious in his or her conduct
 Determined by courts in each situation and varies with
 Activity or action
 Risk
 Skill or expertise
Essentials of Canadian Business Law, 1st Canadian Edition
Slide 2-16
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2.8
Negligence – Breach of Duty
After plaintiff proves duty owed then must
prove:
 Breach of duty – defendant did not meet the
standard of care for the situation
To whom do you owe a duty of care when you
drive?
What is the standard you owe?
What situations would be a breach of this duty?
Essentials of Canadian Business Law, 1st Canadian Edition
Slide 2-17
© 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.
2.8
Negligence – Damages
Causation
 Proximate cause: plaintiff’s negligence is the
direct and only cause of the injury, if not plaintiff’s
liability will be limited
 Remoteness or Foreseeability Test: reasonable
person would have foreseen the damage or injury
occurring from the action taken
Essentials of Canadian Business Law, 1st Canadian Edition
Slide 2-18
© 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.
2.8
Negligence (Cont’d)
Contributory Negligence
 Plaintiff is also responsible (partly or entirely) for
his or her injuries
 Court will apportion the damages based on the
extent of responsibility
Voluntary Assumption of Risk
 Person voluntarily participates in an activity which
carries a chance of risk
Essentials of Canadian Business Law, 1st Canadian Edition
Slide 2-19
© 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.
2.9
Other Unintentional Torts – Occupiers’ Liability
Duty of care owed by an occupier, person in possession
of land, to others on the land
Common Law:
 Trespasser (no permission) – no duty of care, but cannot
deliberately injure
 Licensee (permission for licensee’s benefit) – duty to warn of
hidden dangers
 Invitee (permission for occupier’s benefit) – highest duty to
warn of unusual dangers that exist that a reasonable and
careful person should know; duty met if sufficient warnings
are given
Statute Law:
 Many provinces have legislation imposing a standard of care
owed to trespassers and visitors
Essentials of Canadian Business Law, 1st Canadian Edition
Slide 2-20
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Figure 2-2
Defamation
Essentials of Canadian Business Law, 1st Canadian Edition
Slide 1-21
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2.9
Other Unintentional Torts – Vicarious Liability
Liability for the actions of another
 Employment: Employer is liable for torts
committed by an employee while carrying out
duties assigned, as the employer exercises control
and supervision over the employee
 Partnership: Partnership is liable for torts
committed by the partner if the actions are in the
course of partnership business
Essentials of Canadian Business Law, 1st Canadian Edition
Slide 2-22
© 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.
2.9
Other Unintentional Torts – Strict Liability
 Activities are so dangerous that they result in
liability regardless of care taken or duty of care
met
 Governments by laws use strict liability for
environmental damage
Essentials of Canadian Business Law, 1st Canadian Edition
Slide 2-23
© 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.
2.10
Commercial Negligence
Professional Negligence
 Duty owed is that of a reasonable person who is a
fully qualified member of that profession with
standards established by a governing body or
association
 Very high standards of care
 Protection by insurance
Essentials of Canadian Business Law, 1st Canadian Edition
Slide 2-24
© 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.
2.10
Commercial Negligence (Cont’d)
Negligent Statements
 Reports or advice by professionals must meet the
standard set by the profession
 Liability to others who rely on the statements and
suffer a loss
 S.C.C. test @ page 47
 Liable to foreseeable users of information
 Determination of appropriate limitation on group using
the information, therefore not liable to the world at
large
 What professions are impacted by this tort?
Essentials of Canadian Business Law, 1st Canadian Edition
Slide 2-25
© 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.
2.10
Commercial Negligence (Cont’d
Manufacturers’ Negligence
 High duty of care is owed to the consumer that
they will not be injured by the product
 Donoghue v. Stevenson “snail in the bottle” case is
the leading case establishing liability to the
consumer
Essentials of Canadian Business Law, 1st Canadian Edition
Slide 2-26
© 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.
2.10
Commercial Negligence (Cont’d)
Manufacturers’ Negligence
 Standard of care is required to ensure products
will not damage or injure the user or consumer
 Adequate testing is essential to avoid liability
 If a product is dangerous then adequate warnings
and proper instructions are also essential to avoid
liability
Essentials of Canadian Business Law, 1st Canadian Edition
Slide 2-27
© 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.
2.11
Defences to Claims of Negligence
Act of God
 No liability for loss caused by an unanticipated
event beyond the control of plaintiff
Waiver
 Express or implied promise not to sue
 Usually in writing
 Must be brought to the attention of person waiving the
right
 Must refer to the type of injury contemplated at the
time
Essentials of Canadian Business Law, 1st Canadian Edition
Slide 2-28
© 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.
2.11
Defences to Claims of Negligence (Cont’d)
Release
 Promise to discharge a person from liability and
not to sue
 Usually written release for compensation for loss or
damage suffered
Statute of Limitations
 Legal action must begin within a reasonable time,
most provinces have statutory limits
 If action is not commenced within the set time
period the right to sue is lost
Essentials of Canadian Business Law, 1st Canadian Edition
Slide 2-29
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2.11
Defences to Negligence
Lawful Right
 Person is granted the right to action under a duty
to protect the public at large, then will not be liable
When would these defences apply?
Essentials of Canadian Business Law, 1st Canadian Edition
Slide 2-30
© 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.
2.12
Tort Remedies
Monetary (money) Damages to place person back in
same position
1. Special Damages
 Established by specific receipts or records
2. General Damages
 Estimated usually based on expert testimony
3. Punitive or Exemplary Damages
 Punishment for particularly reckless actions, usually
intentional torts not ordinary negligence
4. Nominal Damages
 Small amount of money to recognize violation, but
court costs may also be given adding to the cost
Essentials of Canadian Business Law, 1st Canadian Edition
Slide 2-31
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2.13
Special Remedies
Special Remedies
 Injunction – court order requiring stoppage of
certain action
Essentials of Canadian Business Law, 1st Canadian Edition
Slide 2-32
© 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.
2.14
Business-Related Torts
Slander of Goods
 Untrue statement as to the nature of goods
Slander of Title
 Untrue statement with respect to ownership of goods
Fraudulent Misrepresentation
 Intentional false statement to deceive another into entering a
contract
 Allows rescission of the contract and damages
Fraudulent Conversion of goods
 False pretenses to acquire goods
Essentials of Canadian Business Law, 1st Canadian Edition
Slide 2-33
© 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.
CH 2
SUMMARY
Torts are civil wrongs causing injury to
another
 Intentional – often criminal association
 Assault and battery, false imprisonment, defamation,
trespass, nuisance
 Unintentional – negligence, most common type of
tort, with many aspects
 Liability by professionals, manufacturers, occupiers,
vicarious and strict liability
 Defences are available for tort actions
 Remedies are used to compensate for losses
caused by tort actions
Essentials of Canadian Business Law, 1st Canadian Edition
Slide 2-34
© 2005 McGraw-Hill Ryerson Ltd., All Rights Reserved.