- •Introduction
- •1) Criminal Law and Tort Law Contrasted
- •B. The origins of canadian tort law
- •1) The Nature of the Defendant's Conduct
- •2) The Nature of the Plaintiff's Loss
- •D. The objectives of tort law
- •2) The Instrumentalist View
- •I) Specific Deterrence
- •II) General Deterrence
- •III) Market Deterrence
- •E. Personal injury, tort law, and other compensatory vehicles
- •1) Governmental Initiatives
- •2) Private Sector First-Party Insurance
- •F. The organization of tort law
- •A. Introduction
- •1) Application of the Standard of Care
- •I) Judicial Policy
- •2) Special Standards of Care
- •3) Proof of Negligence: Direct and Circumstantial Evidence
- •1) Cause-in-Fact
- •4) Market Share Liability
- •5) Loss of a Chance
- •6) Multiple Tortfeasors Causing Indivisible Damage
- •D. Damage
- •E. The duty of care
- •1) The Foreseeable Plaintiff (The First Branch of the Anns Test)
- •2) Policy Considerations (The Second Branch of the Anns Test)
- •The Supreme Court decision in Galaske V. O'Donnell [Note 123:
- •In its recent decision in Ryan V. Victoria (City) [Note 126:
- •F. Remoteness of damage
- •1) The Foreseeability Rule
- •G. Defences
- •1) Contributory Negligence
- •2) Voluntary Assumption of Risk (Volenti Non Fit Injuria)
- •3) Illegality (Ex Turpi Causa Non Oritur Actio)
- •4) Inevitable Accident
- •H. Remedies
- •1) Personal Injury
- •I) The Impact of the Trilogy
- •2) Death
- •3) Property Damage
- •A. Introduction
- •B. Products liability
- •1) Manufacturing Defects
- •2) The Duty to Warn
- •3) Reasonable Care in Design
- •1) The Duty of Care
- •2) The Standard of Care
- •D. Human reproduction
- •1) Prenatal Injuries
- •2) Wrongful Birth
- •3) Wrongful Life
- •4) Wrongful Pregnancy
- •E. Occupiers' liability
- •1) The Classical Common Law of Occupiers' Liability
- •2) The Modern Common Law of Occupiers' Liability
- •3) Legislative Reform
- •F. Breach of statutory duty
- •G. Pure economic loss
- •I) Foreseeable Reliance/Reasonable Reliance : The Prima Facie Duty of Care
- •II) Policy Concerns: The Issue of Indeterminacy
- •2) Negligent Performance of a Service
- •3) Relational Economic Loss
- •I) Contractual Relational Economic Loss
- •4) Product Quality Claims
- •H. Governmental liability
- •2) Negligence
- •In Rondel the House of Lords provided a number of reasons for the immunity. They included:
- •Intentional torts
- •A. Introduction
- •B. The meaning of intention
- •C. Intentional interference with the person
- •1) Battery
- •3) False Imprisonment
- •5) False Imprisonment and Malicious Prosecution
- •6) Malicious Procurement and Execution of a Search Warrant
- •7) Abuse of Process
- •9) Privacy
- •10) Discrimination
- •12) Harassment
- •13) Defences to the Intentional Interference with the Person
- •III) Defence of a Third Person
- •V) Discipline
- •VI) Necessity
- •VII) Legal Authority
- •VIII) Illegality: Ex Turpi Causa Non Oritur Actio
- •II) Contributory Negligence
- •1) Elements of Liability
- •2) Defences to the Intentional Interference with Land
- •3) Remedies
- •4) Trespass to Land and Shopping Malls
- •5) Trespass to Airspace
- •E. Intentional interference with chattels
- •1) Trespass to Chattels
- •3) Conversion
- •4) The Action on the Case to Protect the Owner's Reversionary Interest
- •5) An Illustrative Case: Penfold's Wines Pty. Ltd. V. Elliott
- •6) The Recovery of Chattels
- •F. Intentional interference with economic interests
- •1) Deceptive Practices
- •II) Conspiracy to Injure by Unlawful Means
- •I) Direct Inducement to Breach a Contract
- •II) Indirect Inducement to Breach a Contract
- •Intentional Interference with the Person
- •Barry j. Reiter Melanie a. Shishler
- •1) Elements of Liability
- •2) Defences
- •Barry j. Reiter Melanie a. Shishler
- •1) The Elements of Liability
- •3) Dogs
- •4) The Scienter Action and Negligence
- •Barry j. Reiter Melanie a. Shishler
- •1) Elements of Liability
- •2) Defences
- •Barry j. Reiter Melanie a. Shishler
- •2) Principal and Agent
- •3) Statutory Vicarious Liability
- •4) Independent Contractors
- •In Lewis (Guardian ad litem of) V. British Columbia, [Note 50:
- •5) Liability of the Employee or the Agent
- •Barry j. Reiter Melanie a. Shishler
- •Chap.6 Contents
- •1) Physical Damage to Land
- •2) Interference with Enjoyment and Comfort of Land
- •7) Defences
- •8) Remedies
- •1) The Definition of a Public Nuisance
- •A. Introduction
- •2) Reference to the Plaintiff
- •3) Publication
- •E. Defences
- •2) Privilege
- •3) Fair Comment on a Matter of Public Interest
- •F. Remedies
- •H. The next challenge: political speech
- •A. Introduction
- •1) Contract Law and Tort Law
- •2) Fiduciary Law and Tort Law
- •3) Restitution and Tort Law
- •C. Public law
- •1) The Charter of Rights and Freedoms and Tort Law
- •A. The centrality of the tort of negligence
- •B. The dynamism of the tort of negligence
- •C. Generalization and integration
- •D. Reform and modernization
- •E. The triumph of compensation and loss distribution policies
- •Ison, t.G., The Forensic Lottery: a Critique on Tort Liability as a System of Personal Injury Compensation (London: Staples Press, 1967)
- •Intentional conduct of a public official in abuse of her power, or knowingly beyond the scope of her jurisdiction, causing damage to the plaintiff.
- •Preface
- •Philip h. Osborne
Philip H. Osborne
The Law of Torts (2000) Contents
|
SUMMARY TABLE OF CONTENTS |
|
|
|
|
PREFACE |
|
|
|
|
CHAPTER 1 Introduction |
|
|
|
|
CHAPTER 2 Negligence Basic Principles |
|
|
|
|
CHAPTER 3 Special Topics in Negligence |
|
|
|
|
CHAPTER 4 Intentional Torts |
|
|
|
|
CHAPTER 5 Strict Liability |
|
|
|
|
CHAPTER 6 Nuisance |
|
|
|
|
CHAPTER 7 Defamation |
|
|
|
|
CHAPTER 8 Relationships |
|
|
|
|
CHAPTER 9 |
|
Conclusion The Canadian Law of Torts in the Twenty-first Century |
|
|
|
|
GLOSSARY |
|
|
|
|
TABLE OF CASES |
|
|
|
|
ABOUT THE AUTHOR |
|
Philip H. Osborne
The Law of Torts (2000), Chap.1 Contents
CHAPTER 1
Introduction
|
|
|
A. An Exemplary Torts Case |
|
1) |
|
Criminal Law and Tort Law Contrasted 2) The Tort Litigation |
|
|
|
|
B. The Origins of Canadian Tort Law |
|
|
|
|
C. The Elements of Canadian Tort Law |
|
1) |
|
The Nature of the Defendant's Conduct 2) The Nature of the Plaintiff's Loss |
|
|
|
|
D. The Objectives of Tort Law |
|
|
1) The Moralist View 2) The Instrumentalist View a) Compensation b) Punishment c) Deterrence i) Specific Deterrence ii) General Deterrence iii) Market Deterrence d) Psychological Dimensions e) Education f) The Ombudsman Role |
|
|
|
|
E. Personal Injury, Tort Law, and Other Compensatory Vehicles |
|
1) |
|
Governmental Initiatives 2) Private Sector First-Party Insurance |
|
|
|
|
F. The Organization of Tort Law |
|
|
|
|
Further Readings |
|
CHAPTER 1, INTRODUCTION
Every day in Canada some of its citizens suffer harm as a consequence of personal, social, business, and governmental activities. The harm may be to their person, dignity, property, or wealth. Tort [Note 1: The word is not used colloquially. It comes from the French word meaning "wrong," and its use is restricted to the legal system.] law determines when the person who causes the harm must pay compensation to the person who suffers it. The answer to that question depends upon the nature of the conduct of the person who caused the harm, the nature of the harm suffered by the victim, and the circumstances in which the harm was inflicted.
This chapter addresses six matters. First, a typical torts case is considered to illustrate some of the characteristics of tort law and the nature of the civil litigation process. Second, reference is made to the origins of tort law. Third, consideration is given to the foundation elements of tort law. Fourth, reference is made to the objectives of tort law. Fifth, special attention is given to personal injury and fatality claims and how the remedies provided by the law of torts relate to other compensatory systems. Finally, consideration is given to the organization of tort law for the purposes of this book.
|
A. AN EXEMPLARY TORTS CASE |
|
Evaniuk v. 79846 Manitoba Inc. [Note 2: (1990), 68 Man. R. (2d) 306 (Q.B.).] is not a well-known torts case. It is not referred to in any of the treatises on Canadian tort law. [Note 3: See, for example, G.H.L. Fridman, The Law of Torts in Canada (Agincourt, Ont: Carswell, 1989); L.N. Klar, Tort Law, 2d ed. (Scarborough, Ont.: Carswell, 1996); and A.M. Linden, Canadian Tort Law, 6th ed. (Toronto: Butterworths, 1997).] It does not make any special contribution to the development of the law of torts. It is, however, a good example of the kind of cases that Canadian lawyers deal with routinely and it provides a useful starting point for understanding the torts system.
The Evaniuk litigation arose from an incident in a Winnipeg bar. Ms. Evaniuk was sitting in the bar with her girlfriend. She noticed that her brother, who was sitting at an adjacent table, was kissing Ms. Fuerst, a waitress at the bar. Ms. Evaniuk warned her brother that he had better watch what he was doing because his wife would be arriving in a few minutes. Ms. Fuerst responded by throwing a full glass of liquid over Ms. Evaniuk. A heated exchange took place between the two women until two bouncers, employed by the bar, intervened. They took hold of Ms. Evaniuk, forcibly removed her from the premises, and threw her into the parking lot. She fell heavily and was injured.