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Case Study Assignment - Winter 2019 - CRN 43278_APRIL_08_2019

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15-Foot Python Escapes Pet Store, Strangles Sleeping Boys:

This video portraits a tort done by a Reptile Ocean pet store owner, wrongful act and negligence that caused harm to two little children.

The duty of care:  unsafe reptile kept in the store with no proper enclosure
Standard of care: safety procedure and rules for  storing dangerous species.
Causation: two innocent children were killed due to wrongful act and negligence.
Remoteness of damages: death of young children due to strangling of snake which was in the store.
References:https://youtu.be/OTK9hXMgSKI

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15-Foot Python Escapes Pet Store, Strangles Sleeping Boys

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Strange Peculiar Case: A couple who were given the wrong baby by a hospital a year ago, have finally been allowed to travel home with the correct child.
What coiuld be the cause of this? This another wrongful act and negligence of a hospital staff and causation harming the mothers feeling and trust.

Reference: https://youtu.be/TaliInOFKIA

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Baby accidentally given to wrong couple reunited with real parents - BBC News

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Danielle, the Little Girl Found Living Like a "Wild Animal"

Tort can be this too caused by a mother to a child, giving no care and neccesities. Here the wrongful act and harm was caused due to mothers careless behaviour.
References: https://www.youtube.com/watch?v=1ol9x10azL0

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Danielle, the Little Girl Found Living Like a "Wild Animal" | The Oprah Winfrey Show | OWN

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form of Torts : Wrongful act
Unintentional Tort : Injury inadvertently caused to a plaintiff by a defendant; Negligence: Product liability, Occupiers liability, professional negligence.
Strict liability Torts: Rule in Rylands V Fletcher and animals
Intentional Tort: injury caused wantedly to a plaintiff by a defendant: Torts involving verbal and physical aggresssions: Assault and battery, False imprisonment, Defamation
Business Torts: Passing off, inducing breach of contract, and unlawful means.
References:https://www.thecanadianencyclopedia.ca/en/article/torts

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What is a Tort?

The word tort comes from the Latin tortum, meaning "wrong, injustice." The purpose of tort law is not to punish wrongdoers; it is to provide damages to victims as compensation for their losses. It affects nearly every walk of life, from manufacturers and property owners to pet owners, drivers, doctors and bartenders, all of whom have a duty of care.

Although most tort law is judge-made, some originates in statutes that vary from province to province. Unlike criminal law, which involves the state, tort law is used by individuals to claim compensation. It also differs from contract law, where parties have agreed to certain terms or conditions.

Intentional Torts

Intentional torts are the most serious. They are deliberate acts intended to injure others; or to interfere with another person's rights. A common one is battery. This can involve violence with the intent to injure. It also includes acts that are not intended to injure, but still interfere with a person's autonomy and the right to security and dignity. For example, every medical treatment performed without the consent of the patient is considered battery, regardless of the doctor's intent to provide the best care possible. The law respects the absolute right of all competent persons to decide what medical treatment they will accept or refuse.

Other intentional torts include assault and false imprisonment. ( See Wrongful Convictions.) A person can also sue for acts intended to cause emotional distress. Sexual or workplace harassment can fall under this tort; in these cases, a court may award extra or punitive damages to punish the wrongdoer.

When a person is injured by a criminal act, the offender may be prosecuted under the Criminal Code; as well as sued through civil court for damages. Tort law is increasingly used by victims of sexual assaults, as some may find it helpful to seek damages whether or not there is a criminal prosecution. Often, criminals do not have the funds to pay tort judgments. Most provinces and territories make the recovery of damages available through victim compensation funds.

People who commit an intentional tort may plead that they had a valid defence, such as the victim's consent; self-defence; defence of property; necessity; or lawful authority. For example, the defence of consent can protect athletes from being sued for physical contact, as long as the contact is an ordinary part of the game. As well, numerous statutes such as the Criminal Code allow the police to detain and imprison people; or to seize their property. If any of these defences are accepted by the court, the action under tort law will be dismissed.

Torts can involve damage to property as well as injuries to people. Trespassing falls under intentional torts; as does conversion, which is interfering with another person's goods, and detinue, which is refusing to return something belonging to another person.

Another important tort action is defamation. This protects a person's reputation from false and defamatory material - either spoken, published or broadcast.

Torts of Negligence

People are more frequently injured because of the carelessness rather than the deliberate acts of others. This is the tort of negligence. It is the most important of the modern torts. The famous English case of Donoghue v. Stevenson, in which a manufacturer of a soft drink carelessly allowed a snail to crawl into a bottle (it decomposed and caused the plaintiff to become ill), established the principle that everyone is under a legal obligation to take reasonable care to ensure that others will not be injured because of careless conduct, save for a few exceptional situations.

Everyone must live up to the standards of the "reasonable person." This is an important concept of the negligence tort. Based on objective guidelines and built on precedents, the standard allows the court to adapt to the changing circumstances of what might be considered "reasonable." Similarly, if people through their own negligence cause or contribute to their own injuries, they will be held at least partly responsible for their damages under the contributory negligence defence.

Negligence expanded significantly in the 20th century. It now covers a wide range of accidents. Bar owners, for example, can be held liable if they fail to ensure that their intoxicated customers take reasonable care when going home. Drivers can be held responsible if they do not ensure that the occupants of their cars are wearing seat belts; or if they allow incompetent persons to drive their cars. Courts are reluctant, however, to hold public authorities liable for their negligent decisions, as opposed to their negligent acts. It is felt that decisions which raise core policy issues involving the exercise of political discretion be left to elected officials, and not be second-guessed by the courts.

Compensation

If found liable, wrongdoers must compensate victims in full for losses. Compensation will not only include medical bills not covered by health insurance, lost past and future income and the costs of future care; it will also include awards for pain and suffering and the loss of the enjoyment of life. If a tort causes death, the estate and dependants are entitled to seek compensation from the tortfeasor (the person guilty of tort) for their financial losses. Dependants are entitled to be compensated for the loss of support that they would have obtained from the person who was killed. Some provinces, such as Alberta, allow the recovery of damages for the sorrow and grief of survivors. Estates are limited to recovering only monetary losses caused by the death, such as funeral expenses.

Strict Liability

Certain activities are so fraught with risk that compensation to those injured is awarded without the need to establish the defendant's fault. These are strict liability torts. According to the English case of Rylands v. Fletcher, anyone who brings something onto his land which is not naturally there is strictly liable if the thing escapes and injures someone. People are strictly liable for injuries caused by wild animals they keep; or even by domestic pets if they are known to be dangerous; or by fires they have started. However, in view of the expansion of negligence law, these strict liability actions are relatively rare.

One important example of strict liability is vicarious liability. This is where an employer is liable for the torts committed by its employees during their employment. Since employers usually have liability insurance and more resources to pay judgments than their employees, vicarious liability is frequently pleaded.

Land and Product Liability

There are other important torts. A person who unreasonably interferes with another's use and enjoyment of land will be liable for a private nuisance. Under the law of occupier's liability, everyone who occupies a building owes a duty of care to those who visit and who are injured on the premises.

Manufacturers are responsible under the law of products' liability to those who are injured by products that are negligently designed, manufactured or marketed. Under the law, manufacturers are obligated to advise consumers of risks associated with the use of the product. In recent years, this law has resulted in manufacturers being held liable for failing to inform women of the side effects of birth control pills; and of the risk that breast implants can rupture, causing serious problems for the patients using them.

Economic Torts

By virtue of the economic or business torts, people will be held liable if they wrongfully interfere with the economic interests of others. There are a number of these torts, such as inducing breach of contract; intimidation; and conspiracy. Using unlawful means to prevent a third party from economically benefitting a specific person can also lead to a successful claim by the person who was harmed.

Fault-Finding

Of course, many injuries result from pure accident. If the victim cannot prove that the person who caused the accident acted wrongfully, they will not be entitled to any compensation, despite their own innocence, unless this falls under one of the strict liability torts. This has been strongly condemned by critics of negligence law. Some consider it unfair that persons who cannot prove that their injuries resulted from someone else's negligence are left to bear their losses on their own.

Many accidents occur either at work or on the road. ( See also Traffic Law in Canada.) Because of their frequency and tort law's inability to compensate adequately all those injured at work, every province has workers' compensation legislation. It allows workers to receive compensation without the need to establish fault. Those who are covered by workers' compensation are not entitled to sue in tort.

Many Canadian provinces have enacted similar legislation for highway traffic accidents and have replaced tort law with "no fault" compensation schemes. There is a lively debate about the extent to which these schemes ought to be enlarged at the expense of the traditional tort-law process.

New Torts

Recently, new torts have emerged. Invasion of privacy has gained in importance. It has been recognized as a new tort action by some courts. Older torts, such as negligence, are applied increasingly to professional groups such as lawyers, architects and engineers to force them to live up to higher standards of competence; even with regard to people who are not their clients but who can be affected by their negligence. As well, negligence law has allowed bystanders who suffer nervous shock from witnessing terrible accidents involving relatives to sue for their damages caused by the traumatic experience. Rescuers who are injured in attempting to help those in perilous situations can sue the negligent person who created the emergency. The law of negligence has even begun to relax its traditional reluctance against requiring people to assist others; or to prevent harm from being caused to them. There is a growing list of exceptions to the rule that one need not assist others in peril.

People are also held accountable not only for their negligent acts but for misleading advice that may cause loss to others. This development relates to the expanding use of tort law to deal with negligence occurring within commercial or contractual relationships.

Even government officials and agencies are being held liable in tort for damages they cause the public in carrying out their functions. Those who support tort law have applauded these developments. They argue that the civil remedy in tort has been and can continue to be valuable to citizens fighting against more powerful elements of our society.

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Tort law is a cornerstone of the Canadian legal system. It provides compensation for people who have been injured; or whose property has been damaged by the w...

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Supreme Court of Canada

Child v. Vancouver General Hospital et al., [1970] S.C.R. 477

Tort - Negligence: Hospital patient quiet after suffering several irrational spells—Doctor’s opinion that patient much improved and would continue to do well—Nurse leaving for coffee break—Patient escaping through window and sustaining injuries as result of fall—Whether jury’s verdict in favour of nurse perverse—Whether misdirection of jury.

References: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/5055/index.do

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Child v. Vancouver General Hospital et al. - SCC Cases (Lexum)

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Importance of Tort Law for Business People:
Since, Tort can be happening in any context, it is not unique to the businesses and its sectors. However, it is important for the businesses to be alert about consequences and risk factors involved in tort based statute.
-Tort Judgements are costly
-Tort judgements are public relations nightmare

Coffee burn case sees courts flip-flop on vicarious liability

One of the important principle in tort law and should be strictly must keep in mind by businesses: Vicarious liability
"A liability imposed on one party (often an employer) for the harmful actions or omissions of another (often an employer)
“The question of whether a duty of care arises will depend on the circumstances of each particular case, not on pre‑determined categories and blanket rules as to who is, and who is not, under a duty to exercise reasonable care.  There may well be cases where, having regard to the particular circumstances involved, an employee will not owe a duty of care to his or her employer’s customer.”
References:https://www.canadianunderwriter.ca/insurance/coffee-burn-case-sees-courts-flip-flop-vicarious-liability-1004126382/

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A recent Ontario court ruling against a coffee shop serves as a warning to defendants that individual employees can be named personally in personal injury lawsuits against corporations.

"There is no general rule in Canada that an employee acting in the course of her employment cannot be sued personally for breaching a duty of care owed to a customer," the Court of Appeal for Ontario wrote in Sataur v. Starbucks Coffee Canada Inc.

The ruling in Sataur arose when a customer alleged her hands were scalded by hot water in a coffee shop. The allegations have yet to be proven in court.

But the Court of Appeal for Ontario did find "that the concept of vicarious liability" does not stop a customer from naming, in addition to the corporation, both the coffee house manager and server personally, lawyer Andrew Monkhouse wrote last week.

The Appeal Court ruling, released Dec. 22, was on a motion from Starbucks to remove the barista and store manager as individual defendants.

Initially, in a May 2017 ruling, the Ontario Superior Court of Justice found in favour of Starbucks, quashing the lawsuit against the individual defendants, on the grounds that "the general rule remains that employees are not liable for what they do within the scope of their authority and on behalf of their corporation."

The Dec. 22 appellate court court decision overturned the Superior Court decision, citing the Supreme Court of Canada ruling in London Drugs Ltd. v. Kuehne & Nagel International Ltd., released in 1992. That case arose when a transformer purchased by London Drugs was accidentally damaged in 1981 by employees of Kuehne & Nagel who tried to load the transformer on to a truck.

"There is no general rule in Canada to the effect that an employee acting in the course of his or her employment, and performing the 'very essence' of his or her employer's contractual obligations with a customer, does not owe a duty of care, whether one labels it 'independent' or otherwise, to the employer's customer," Justice Frank Iacobucci of the Supreme Canada wrote in London Drugs. "The question of whether a duty of care arises will depend on the circumstances of each particular case, not on pre‑determined categories and blanket rules as to who is, and who is not, under a duty to exercise reasonable care. There may well be cases where, having regard to the particular circumstances involved, an employee will not owe a duty of care to his or her employer's customer."

In Sataur v. Starbucks Coffee Canada Inc., the appellate court rejected Starbucks' argument that naming an employee as a defendant was an abuse of process. "It is not an abuse of process to bring a lawsuit against individual defendants for the purpose of obtaining discovery from them, if the plaintiff has pleaded a proper cause of action against those individual defendants, as we have found that the plaintiff has in this case," the Court of Appeal for Ontario wrote.

For a court to find an employee personally liable, the plaintiff must "prove a tort and damages, which in employment law most often will be a tort of negligence, or 'mistakes' made on the job," Andrew Monkhouse, the owner of Monkhouse Law, wrote in a blog post published Jan. 19 to CanLII Connects.

"This will involve proving the employee owed the victim a duty of care, the injury caused to the victim was done by the specific employee, and that the wrongdoing did not arise out of the employee's position within the employer, but rather it must be personal and direct, with some foreseeability of the harm."

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Coffee burn case sees courts flip-flop on vicarious liability

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A recent Ontario court ruling against a coffee shop serves as a warning to defendants that individual employees can be named personally in personal injury lawsuits against corporations. "There is no general rule in Canada that an employee acting in...

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Tort/Negligence — Premises Liability – Landlord/Tenant – Apartment Complex – No Duty of care

A tort can also be due to the negligence of a landlord and duty of care to provide the agreed faciltities that is mandatory for normal living.

References https://sclawyersweekly.com/news/2019/04/02/tortnegligence-landlordtenant-premises-liability-undertaking-apartment-security/

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The defendant-landlord undertook to provide security for its apartment complex, and the plaintiff-tenant has forecast evidence that she relied on this undertaking. There are genuine issues of fact as to whether the landlord was negligent in failing to provide the promised security or to inform tenants when there were no security officers at the complex ...
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Tort/Negligence - Landlord/Tenant - Premises Liability - Undertaking - Apartment Security

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The defendant-landlord undertook to provide security for its apartment complex, and the plaintiff-tenant has forecast evidence that she relied on this undertaking. There are genuine issues of fact as to whether the landlord was negligent in failing to provide the promised security or to inform tenants when there were no security officers at the complex ...

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Tort attorneys do important work to make society safer. They hold wrongdoers accountable. They provide relief for victims and help them navigate the complex and stressful legal system which can be daunting to someone who isn’t legally trained. They learn to evaluate cases, build evidence, conduct trials and make strategic decisions that are calculated to achieve the best possible outcome in the case. For attorneys who like the satisfaction that comes with hard work, tort law is a viable choice.
Reference and citation: https://legalcareerpath.com/tort-law/