02: Tort law and professional liability

Question	Answer
A tort is a	civil wrong for which no contractual obligations are required
The word tort is the French word for	wrong. A tort is a civil or social wrong — an action that causes injury to another, whether physically, psychologically, or economically. Tort law is the branch of law by which persons who have suffered some harm as a result of the wrongful conduct of others may seek compensation, called damages.
An accused in a criminal matter may be found guilty or not guilty, whereas the defendant in a civil matter is found	liable, partially liable, or not liable for harm caused either intentionally or carelessly.
A tort is considered a private matter, where a	victim seeks compensation from the person responsible for the injury or damage by bringing a civil action against that party or parties. In some instances, punitive or punishing damages may be awarded, although the role of tort law is generally to compensate the victim (unlike that of criminal law, which involves punishment). In tort law, injunctions to stop the wrongful behaviour may also be ordered.
The first theory is that of strict liability, where a person is	liable for harm caused regardless of whether they were at fault. Liability is based on causation — that is, a person is liable because he or she caused the loss.
Liability may extend to an employer as a result of	vicarious liability , since an employer can be liable for the actions of employees committed during the scope of their employment.
There are two major categories of torts:	intentional (or deliberate) acts and unintentional (or careless) negligent acts.
Intentional torts are wrongs committed deliberately or voluntarily, rather than inadvertently. With intentional torts, the victim does not need to prove a	loss in order to obtain compensation. A deliberate action, even where there is no loss suffered, may be an actionable tort. Motive and mistake are irrelevant; however, there are defences that can be pleaded when an action is brought forward for damages.
While it is appropriate to look at the various torts by dividing them into two broad categories	— torts common to persons and property, and those unique to business
for the tort of assault, the victim must prove the following:	o first, that there was a deliberate threat, creating a fear of imminent harm o second, that there was no consent
A battery occurs where there is no consent, but it requires deliberate physical contact.	(To differentiate between assault and battery, remember that a comes before b alphabetically, just as assault occurs before battery. If the victim experiences only fear, the offence is assault, not battery.)
Where a trespass to land has occurred, ignorance or mistake is not a defence, but	where the intruder has had no control over their own actions, this may be a defence. For example, a person thrown over a fence by a gang of thugs would not personally be liable for trespass.
alse imprisonment and false arrest may be of concern in a business environment and may occur when a person is deliberately and totally restrained or held against his or her will, such as	in the case of a shoplifter
Malicious Prosecution – Where charges are unjustifiably laid	Ingredients: 1 the proceedings must have been commenced by the defendant 2 the criminal proceedings must have been terminated in favour of the plaintiff 3 There must have been an absence of reasonable and probable cause 4 there must be malice (or a primary purpose other than that of carrying the law into effect)
private nuisance,	if the use of its property interferes with neighbours’ use and enjoyment of their property in an ongoing and continuous way, and if the consequences of this use could be considered reasonably foreseeable to the business
Defamation is a	tort harming a person or his or her reputation, when a false statement is made to a third party. In common law, libel is written defamation, while slander is spoken defamation.
General damages	include items such as an amount for pain and suffering, and a calculation for future wages and future care if required.
Special damages	are more quantifiable, as they include sums spent to repair any damaged property, wages lost to date, and medical bills paid. While the general purpose of tort law is not to punish, in some circumstances the courts will award punitive or exemplary damages, particularly where the defendant’s conduct has been malicious or vexatious.
Injunctions	can also be awarded, where the courts order that a defendant must refrain from the behaviour that has caused the loss of the plaintiff.
Inducing breach of contract	occurs where a person or business is persuaded to breach a contract with a competitor or where an employee is persuaded, usually for a financial incentive, to leave his or her current employer and work for a new business, bringing trade secrets, special training, or clients.
Intentional infliction of mental suffering	which can occur when a person is harassed to repay money owing. Calling someone repeatedly at work or threatening any form of physical violence are examples of behaviour that is torturous.
Deceit	or fraudulent misrepresentation, involves fraudulently or intentionally misleading someone. In cases where deceit, or lying, is involved, the courts may award punitive damages to punish the tortfeasor.
passing-off occurs when	the public is misled as to the identity of a business or product wrongful disclosure of confidential information. Employees must not disclose confidential information given to them under the scope of their employment if disclosure would cause harm to the business.
Where a person wrongly attacks a product or business, the tort of	injurious falsehood, trade slander, or product defamation can occur.
Invasion of privacy	is not a tort at common law, but through statutes, both federal and provincial, it may be a statutory tort to interfere with a person’s privacy. There are two significant pieces of legislation concerning privacy: the federal Privacy Act and the Personal Information Protection and Electronic Documents Act (PIPEDA). Surveillance can offend both privacy legislation and human rights legislation. A recent case considered invasion of privacy an actionable tort, regardless of any applicable legislation.
Negligence is the	careless causing of injury to another. the following elements are required for proving a claim in negligence: o the plaintiff was owed a duty of care by the defendant o the defendant breached the duty of care owed (breach of the standard of care) o the defendant’s breach caused the loss (this is known as causation)
nonfeasance	a failure to do something required by a person by virtue of his or her relationship with the plaintiff, such as in the case of a swimmer and a lifeguard.
For the defendant to be held liable, the plaintiff must prove both of the following:	o that a reasonable person would have foreseen the type of injury that occurred o that the injury was reasonably foreseeable as a consequence of the defendant’s conduct
contributory negligence	the courts will then apportion liability between the parties, including any number of defendants.
A professional who is hired to perform a task for a client has a	contractual duty to that client. Due to a relationship of trust, the professional also has a fiduciary duty to the client. And, due to the expansion of liability for negligence, the professional may face liability in tort.
privity of contract.	Only the parties to the contract can sue in contract;
The fiduciary duty	Most professionals have a fiduciary duty toward their clients. This relationship requires complete loyalty and trust; conflict of interest or breach of confidentiality must be avoided.
The tort most commonly committed by professionals is	misrepresentation , either negligent or fraudulent. A misrepresentation is a false statement of a material fact that induces a party to enter into a contract, while the fact itself is not made a term of the contract. (If this fact was made part of the contract, the transgression would then be a breach of contract.) Fraudulent misrepresentation is the tort of deceit, where the maker of the statement is either aware that the statement is false, or wilfully disregards the possibility that it might be. Negligent misrepresentation involves a false statement given carelessly, which breaches the standard of care required of a professional.
The professionals duty of care in tort In order to limit the exposure of professionals to liability that occurs if the reasonably foreseeable test is used, the courts have developed a two-step test:	1. Is the person who suffered the loss in a special relationship with the professional? That is, is he or she someone (or someone belonging to a class of people) whom the professional knew or should have known would be relying on the information? In other words, was he or she foreseen as a user of the information? 2. Was the advice used for the purpose it was prepared for (from the Hercules case as outlined in Case Summary 5.6 on page 145)? Liability only extends for the purpose for which the information was prepared.

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02: Tort law and professional liability

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