BU231 Study Guide - Midterm Guide: Malicious Prosecution, Intentional Tort, Public Nuisance
BU 231
Chapter 4: The Law of Torts
Tort: a wrongful act causing harm to the person or property of another
Tort Law: determines in which circumstances the person who causes an injury must compensate the
victim
THE SCOPE OF TORT LAW
- The purpose of tort law is to compensate victims for harm caused by the activities of others
- As a general statement, a tort identifies a set of circumstances that creates a right to claim
compensation
Tort law is one way of apportioning loss, along with other approaches such as insurance
and government compensation
DEVELOPMENT OF THE TORT CONCEPT
- Initially, societies had simple rules for imposing liability for injuries conduct this is considered
strict liability: liability that is imposed based upon causation regardless of fault, no inquiry is
made to into the reasons for the injury or whether the conduct of the injurer was intentional or
unintentional
- Today, tort law involves two principles:
The fault of the defendant (that is, whether the behaviour was improper)
The causation of harm (that is, whether the plaintiff’s injury was the result of the
defendant’s conduct)
THE BASIS FOR LIABILITY
Fault
- Unjustifiable injurious conduct that intentionally or carelessly disregards the interests of others
(in the context of tort law)
- One reason for basing liability upon fault is a belief in its deterrent effect: people will be more
inclined to be careful if they must pay for the consequences of their carelessness
- A compensation system based on fault also has its defects:
Accident victims who cannot establish fault on the part of some other person go
uncompensated, and the costs and delays of litigation deter many other claims
Some victims may be over compensated, particularly when the defendant is a large
corporation
Strict liability
- Strict liability remains in only a few areas of modern tort law
Example: one who collects potentially dangerous substances or materials on his land,
which accidently escapes, is liable for any resulting damage even if he is blameless
- Some activities such as transporting high explosives, are inherently dangerous regardless of the
amount of care taken, therefore, it is logical that a person knowingly undertaking an inherently
dangerous activity should be strictly liable for resulting damage, regardless of fault
Public Policy
- Whether liability should be based on fault, on strict liability, or on some other principles is an
important question of public policy
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Public policy: economic, social and political considerations or objectives that are
believed to be beneficial to society as a whole
- Policy objectives change along with our social standards
- The most radical policy proposal would eliminate lawsuits for all personal injuries and
compensate victims through government run compensation schemes
- A step has been taken in this direction with a drastic reduction of fault as the basis for defining
liability in automobile accident claims through a system of compulsory no-fault insurance
No-fault insurance: a system of compulsory insurance that eliminates fault as the basis
for claims
- Another alternative to the tort approach is found in the scheme governing workers’ compensation
in Canada, in which industrial accidents are seen as the inevitable part of doing business, and
workers are compensated for on the job injuries through a fund set up by their employer
Worker’s compensation: a scheme in which employers contribute to a fund used to
compensate workers injured in industrial accidents regardless of how the accident was
caused
Vicarious Liability
- Employers w/ fault may also be liable for harm caused by the acts of an employee when those
acts arose in the course of employment,
- An employer may even be found liable when he has given strict instructions to take proper care or
not do the particular act that causes the damage; this principle is called vicarious liability
Vicarious liability: the liability of an employer to compensate for torts committed by an
employee during the course of his/her employment
- There are two public policy reasons for taking this approach:
1. Although an employee is personally liable for the torts he commits while acting for himself or
his employer, employees often have limited assets available to pay compensation for the
potential harm they cause
2. It seems only fair that the person who makes the profit from an activity should also be liable
for any loss
INTENTIONAL TORTS
- Torts are divided into two types: intentional and unintentional
Intentional are those where the activity or conduct is done deliberately, not by accident
Unintentional torts are those where the behaviour itself is accidental and not done
deliberately
- Harm may be unexpected (in both cases) and intention related only to the behaviour, not the
resulting damage
- Harm/damage must occur for any tort to be actionable
Example: one of the oldest intentional torts is trespassing: there would be no point in
suing unless the landowner could establish some loss- a damaged garden or fence etc.
• Trespass: unlawful entering, or remaining, on the land of another w/o
permission
Assault and Battery
- The present day torts dealing with trespass to the person are assault (the threat of violence) and
battery (the actual physical contact)
- Battery cases are common in the medical and sport contexts
A surgeon who operates on a patient w/o consent may commit a battery
When a player exceeds the “accepted” level of contact in the specific sport, a battery has
occurred
- The defense most presented to a battery is consent, either express or implied
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Nuisance
- There are two nuisance torts:
1. Public nuisance: interference with the lawful use of public amenities
Examples: blocking public roads or emitting dangerous substances in public places
Actions against the wrongdoer may ordinarily be brought by a government agency on
behalf of the public as a whole; however, an individual may occasionally show a special
injury that is substantially greater than suffered by other members of the general public
and may bring action for compensation against the wrongdoer
2. Private nuisance: interference with an occupier’s use and enjoyment of her land
Covers things like noxious fumes, excessive noise, or contaminating liquids poured into
rivers or seeping through the soil
The term “occupier” includes not only the owner but tenants as well
Private nuisance can take two forms:
a. Nuisance causes actual physical damage to the property or its occupiers (established
with mere proof that damage was caused)
b. So called amenities nuisance, where the nuisance interferes with the use of amenities
on the property (requires proof that the interference is substantial)
- The courts must weigh competing interests and balance two main issues: the degree of
interference with the occupier’s use and enjoyment of the land, and the economic importance of
the offending activity
False Imprisonment and Malicious Prosecution
- False Imprisonment: intentionally restraining a person, without lawful justification, either by
causing his confinement or by preventing him/her from leaving his location
Tort that has significant importance to shoplifting in the retail business environment
- There is real risk of liability in confronting a member of the public without strong evidence that a
crime has actually been committed
- False arrest: causing a person to be arrested without reasonable cause
- False complaints can attract liability for malicious prosecution if there is no honest belief that a
crime was committed
Malicious prosecution: causing a person to be prosecuted for a crime without an honest
belief that the crime was committed
- The elements of malicious prosecution are:
1. Unsuccessful charges against the plaintiff
2. Initiated by the defendant
3. Without reasonable and probable grounds
4. With malice or other improper purpose
Defamation
- The torts of defamation are better known in their specific forms libel (written defamation) and
slander (spoken defamation)
Defamation: making an untrue statement that causes injury to the reputation of another
person
- In defamation cases, the courts will not award damages unless the plaintiff can demonstrate that
the defendant’s remarks, taken as whole, would discredit the plaintiff’s reputation in the mind of
an ordinary person
Over exaggerations, generalizations or unbelievable remarks will be less likely to cause
injury as an ordinary person would not be influenced by them
- Defamation torts require publication- communication of the offending (written/oral)
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