Tort Law 1 + 2

BLAW 2910: Commercial Law
David Hughes
Tort Law 1 + 2
What is a “tort”?
• Black’s Law Dictionary (5th ed.):
“A private or civil wrong or injury, other than a

breach of contract, for which the court will provide
a remedy in the form of an action for damages”
Intentional v. Unintentional
• Torts can be either intentional (meaning the person
intends to carry out the wrongful act) or
unintentional
• Sometimes people think of unintentional torts as
“accidents” but that is not the way the law views
them
• An unintentional tort still creates liability for the
wrongdoer. Another way of looking at it is that
what makes something wrong, isn’t determined by
whether the person meant for something to happen.
Examples of intentional torts
• Assault
• Battery
• False Imprisonment
• Defamation
• Conversion
• Trespass (sometimes)
• Nuisance (sometimes)
But the distinction does not
matter!
• I have practiced law for over 15 years and in
practice, the distinction between intentional and
unintentional torts does not matter.
• Outside of this class, nobody is going to ask you
whether something is an intentional or
unintentional tort (even a judge)
• All that matters is that you understand whether or
not something is tort, not whether it is an
intentional or an unintentional tort.
Pritchard v. Van Nes
Read this case and then answer the questions on the
next slide:
https://www.canlii.org/en/bc/bcsc/doc/2016/2016bcsc
686/2016bcsc686.html?autocompleteStr=pritchard&a
utocompletePos=1
Questions: Pritchard v. Van Nes
1. What were Mr. Pritchard’s two causes of action?
2. What remedies did he seek?
3. How long had the posts been visible?
4. Why did the judge refer to the case of St. Lawrence Cement Inc. v.
Barrette in paragraph 45?
5. Why did the judge refer to the case of Grant v. Torstar in
paragraph 64?
6. Why was Ms. Van Nes liable for the comments made by other
people?
7. What was the final outcome?
Heuser v. Carnovale
Read this case and then answer the questions on the

next slide:
https://www.canlii.org/en/bc/bcsc/doc/2017/2017bcsc
1251/2017bcsc1251.html?autocompleteStr=heuser&a
utocompletePos=1
Questions: Heuser v. Carnovale
1. What were the Plaintiff’s two causes of action?
2. How many trees were cut down?
3. Did the Defendants cut any trees down?
4. Where were the trees located?
5. Were the Defendants liable? Why or why not?
6. What was the “leading case” on punitive damages?
8. Why do I like this case?
Negligence
• The most common tort

• Unintentional (often what are called “accidents” are in fact
examples of negligence)
The 5 Core Elements of
Negligence
1. DUTY. Is a duty of care owed to this person?
2. STANDARD. Did you breach the duty of care by failing to
meet the standard of care - namely what a reasonable person
would do?
3. CAUSATION. Did the breach cause the loss or did
something else cause it?
4. DEFENCES. Are there any defences? Did the defendant
contribute to her own downfall? Did the defendant
voluntarily accept the risk? Did the defendant sign a waiver?
5. DAMAGES. Are there any monetary damages?
Duty of Care
1. To whom do you owe a duty?

Example
• Big-Time Lemonade Ltd. is a lemonade

bottling company. It has a contract to supply
lemonade to a leading restaurant in Kamloops.
One day a tourist from Ougadougou discovers
a partially decomposed slug in her bottle of
lemonade. She becomes very sick and misses
her flight home.
• Did Big-Time Lemonade Ltd. owe her a duty
of care?
See: Donaghue v. Stevenson
http://en.wikipedia.org/wiki/Ouagadougou
http://en.wikipedia.org/wiki/Donoghue_v_Stevenson
Standard / Breach
• Did the person accused of negligence act as
carefully as a reasonable person would act under
similar circumstances?
• Who is the reasonable person?

Question
You are looking after your neighbours’

10 year old daughter. You decide to take her to the park. You do not b
elieve that seatbelts save lives – in fact you believe that if you are in an
accident, not having a seatbelt on actually helps you escape faster. Yo
ur brother was once trapped in a car after an accident and had to be cut
out. Also, you have found an article on the internet written by a profes
sor that supports your position. On the drive to the park, you are invol
ved in an accident, and your
neighbours’
daughter is thrown into the seat in front and breaks her arm. Your
neighbour sues you for negligence. Will he succeed? Why? Why not?
http://en.wikipedia.org/wiki/Vaughn_v._Menlove
Objective test
• So – the reasonable person is an “objective” rather

than a “subjective” test.
Causation
• 2 types of cause:
• A. Cause-in-fact (the “but for” test)
• B. Proximate cause (was it reasonably foreseeable?)
(2) Defences
• Contributory Negligence
• Voluntary Assumption of Risk
• Illegality
• Ex turpi causa non oritur actio – “from a dishonourable
cause an action does not arise”
• Generally does not prevent people from succeeding in a
claim for personal injury
Question
You are a world-famous violin player. On a recent visit to Kamloops you decide to visit
your friend Mrs. Yan. Mrs Yan lives in a huge mansion at the top of Aberdeen. While you
are sitting sipping a drink on Mrs. Yan’s balcony a stray golf ball from the nearby golf
course flies onto Mrs. Yan’s balcony and smashes the glass in your hand, severing a
tendon in your finger. The golf course has put up a high protective fence to prevent this
sort of thing happening. In the last 30 years, six golf balls have been hit over the
protective fence. Following surgery on your finger, your surgeon tells you that will never
be able to play violin professionally again. Are you likely to be successful in your
negligence claim against:
A.) The golf club; B.) The golfer who hit the ball; C.) Mrs. Yan; D.) Some combination of
A/B/C (please specify); or E.) None of the above
Damages
Damages - a sum of money that puts the person back in
the same position that she was in before the loss.
1. Pecuniary damages - documented losses for specific things like

medical bills, lost wages etc.
2. Non-pecuniary (general) damages – for intangible losses “pain and
suffering”
3. Punitive damages - “extra” damages - not intended to compensate
the injured party, but to punish the wrongdoer
4. Nominal damages - a small amount to recognize the violation of a
right, but where no monetary loss has occurred
Mineault v. City of Kamloops
Read this case and the answer the questions on the

following slide:
• https://www.canlii.org/en/bc/bcsc/doc/2017/2017bc
sc316/2017bcsc316.html?resultIndex=1
Questions: Mineault v.
Kamloops
1. What were the Plaintiff’s two causes of action?
2. What was the Plaintiff’s loss?
3. Did the Defendants owe the Plaintiff a duty of
care? Which paragraph is most important in this
respect?
4. How did the Defendants breach the standard of
care?
How much can a tort cost a
business?
• One negligent act can cripple a business
• Almost all class actions are negligence-based
claims
Class Action Lawsuits
• See:
• Erin Brockovich
• A Civil Action
Canadian examples:
http://www.residentialschoolsettlement.ca/Settlement.pdf

Tort Law 1 + 2

Uploaded by

Copyright:

Available Formats

Tort Law 1 + 2

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Tort Law 1 + 2

Uploaded by

Copyright:

Available Formats

BLAW 2910: Commercial Law

• Black’s Law Dictionary (5th ed.):

“A private or civil wrong or injury, other than a

Read this case and then answer the questions on the

• The most common tort

1. To whom do you owe a duty?

• Big-Time Lemonade Ltd. is a lemonade

• Who is the reasonable person?

You are looking after your neighbours’

• So – the reasonable person is an “objective” rather

1. Pecuniary damages - documented losses for specific things like

Read this case and the answer the questions on the

You might also like