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Definition and Purpose of Tort Law A tort is a civil wrong other than abreach of contract Tort law defines what constitutes a legalinjury and establishes the circumstancesunder which one person may be heldresponsible (i.e., liable) for another’sinjury
Categories of Torts Intentional torts – torts against the person (assault,battery, false imprisonment, intentional infliction ofmental suffering, malicious prosecution, libel andslander, and fraud) and property torts (trespass toproperty, trespass to chattels and conversion) Negligence – covers the full scope of humanactivity (e.g., product liability, “slip and fall”,negligent misrepresentation, professionalnegligence, etc.) Strict liability torts – nuisance
The Evolution of Tort Law Tort law has evolved over time based oncase law Additional torts have also been created bystatutes (e.g., occupiers liability,competition law) Perceived failures of the common law toaddress the needs of society through tortlaw have led to additional statutory reforms(e.g., workers’ compensation andnegligence legislation)
Elements of a Negligence Claim Duty of care owed by defendant to the plaintiffaccording to the proximity (i.e., “neighbour”)principle Breach of the duty of care by a failure to meet therequired standard of care, which is that of thereasonable person in the circumstances Causal link between the defendant’s act oromission and the plaintiff’s loss (i.e., damages) Damages were reasonably foreseeable at the timeof the breach
The Duty and Standard of Care Owedby ProfessionalsProfessionals have a duty to exercise theskill, care and diligence that mayreasonably be expected of a person (i.e.,a professional person in a particulardiscipline) of ordinary competence,measured by the professional standardsof the time
Negligence and Economic Harm Negligence can involve compensableharm that is purely economic in nature This is often, though not exclusively, thesituation in cases involving negligentmisrepresentation
Defences to Negligence Claims No duty of care owed – the duty of care can onlyarise in circumstances involving reasonablyforeseeable harm and proximity sufficient toestablish a duty of care and where there are nopolicy reasons that would negate theestablishment of the duty of care No breach of the standard of care No damages were caused by a breach of thestandard of care Damages were not reasonably foreseeable Limitation period has expired
Elements of NegligentMisrepresentation Duty of care exists based on a special relationship (e.g.,professional person and lay person who may reasonably relyon the professional person’s professional expertise) Professional person makes representation that is untrue,inaccurate or misleading The representation is made negligently Person receiving the representation relies on it in areasonable manner The reliance is detrimental and damages result
Defences to Claims for NegligentMisrepresentation No duty of care is owed – (e.g., plaintiff is not amember of the class of individuals that professionalknew would rely on the misrepresentation) Plaintiff’s reliance is not reasonable (e.g., therepresentation was part of a discussion and not aformal opinion or the professional limited liabilitythrough a disclaimer clause) Professional’s negligent misrepresentation did notcause damages Limitation period has expired
Objective of Damages forCommission of TortTo restore the plaintiff to the position heor she would have been in if the tort hadnot been committed
Damage Awards forCommission of Tort General damages – compensation for non-monetary loss orharm suffered as a result of the commission of the tort thatwas foreseeable when the tort was committed (e.g., pain andsuffering, mental distress or damage to reputation) Special damages – compensation for the quantifiablemonetary losses suffered by the plaintiff that include directlosses (such as amounts the plaintiff had to spend to try tomitigate problems), consequential or economic losses (suchas lost profits in a business), and punitive damages, whereapplicable Punitive damages – awarded to punish certain types ofbehaviour (e.g., fraud or bad faith) Plaintiffs have a duty to mitigate their damages
Vicarious Liability In certain cases, one person can beliable for the harm cause by another One example relevant to professionalliability is an employer’s liability for theactions or omissions of its employees