Torts

Torts [Me Latin tortum, "wrong, injustice"], is a large area of private law concerned with compensating those who have been injured by the wrongdoing of others. Unlike criminal law, which involves the State, tort law involves private parties who institute legal actions against each other for damages. Unlike contract law, where 2 parties agree to their respective rights and obligations, in tort law it is the society, through its judicial and legislative systems, that imposes obligations on everyone to act in consideration of the rights of others.

The law of torts is mainly judge-made law; courts over the centuries have defined people's rights and obligations with respect to their fellows. These are constantly in flux and change to meet new technological and social concerns. Some tort law, however, originates in statutes, which vary from province to province.

Purpose
The purpose of tort law is not to punish wrongdoers but to provide damages to victims as compensation for their losses. For example, monetary settlements are used as best as possible to restore the lives of accident victims to their condition before the accident. Intentional torts are the most serious, as they involve acts undertaken with the deliberate intention of injuring others, or of interfering with their rights. A battery is the intentional application of force to another. This can take the form of a violent act intended to injure, but also may involve a well-meaning act which, although intended to benefit a person, does interfere with their right to security and dignity. For example, every medical treatment performed without the consent of the patient is a battery, even if for the good health of the patient. The law respects the absolute right of all competent persons to decide what medical treatment they will accept or refuse.

An assault is to place another in fear for his safety; a false imprisonment is to prevent unjustifiably another from going where he pleases. One can also sue for acts which are intended to cause another person emotional distress. Sexual or workplace harassment can lead to a successful cause of action under this tort. For these torts, not only may compensatory damages be awarded but a court may award extra or punitive damages to punish the wrongdoer, although this rarely happens.

Where a person is injured by a criminal act, the offender may be prosecuted criminally, as well as being sued civilly for damages. The tort action for battery is more frequently being used, for example, by victims of sexual assaults committed against them. It has been found that persons who can bring tort actions against those who have sexually abused them, either as children or adults, have found a therapeutic value in the action, which is not provided to them by criminal prosecutions alone. Due to the fact, however, that criminals often do not have assets to pay tort judgements, recovery of damages can be obtained through victim compensation funds established by statute in 8 provinces and territories and maintained under cost-sharing agreements with the federal government.

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 will protect athletes from being sued by physical contacts which occur in sports, as long as these contacts were an ordinary part of the game as usually played. As well, numerous statutes, such as the Criminal Code, allow the police and others to detain and imprison persons, or to seize their property. If any of these defences are accepted by the court, the action will be dismissed.

International torts may also occur against property. To enter a person's house or land without permission is to commit a trespass; to interfere with another's goods is a conversion; to refuse to return something which belongs to another is a detinue.

Torts of Negligence
People are usually injured because of the carelessness rather than the deliberate acts of others. This is the tort of negligence, 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 of drink, where 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.

Everyone must live up to the standards of the "reasonable person," 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 persons by their own fault cause or contribute to their own injuries, they will be held at least partly responsible for their damages under the contributory negligence defence. Negligence has expanded significantly in the 20th century and covers a wide range of accidents. For example, those who sell alcoholic beverages can be held liable if they fail to ensure that their intoxicated customers take reasonable care when going home. People who own cars 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.

If found liable, wrongdoers must compensate victims in full for losses. Compensation will not only include medical bills, lost income and the costs of future care, but also an award 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 (person guilty of tort) for their losses. Dependants are entitled to be compensated for the loss of support which they would have obtained from the person who was killed. Some provinces, such as Alberta, allow recovery for the sorrow and grief of survivors. Estates are limited to recovering only monetary losses caused by the death; funeral expenses, for example.

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.

There are other, less familiar, torts. A person who unreasonably interferes with another's use and enjoyment of his 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 defective products. This liability of manufacturers extends not only to the way a product is manufactured, but to the design of the product itself. The law also imposes upon manufacturers the obligation 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.

Under the rules of vicarious liability, employers are responsible for the torts committed by their employees in the course of their employment. By virtue of the economic torts, persons will be held liable if they wrongfully prevent others from earning a living or making expected profits. It is tortious to encourage someone to break a contract which the latter has entered into with someone else. It is also wrongful to intimidate someone by threats of unlawful acts to force him to do something which is to his economic disadvantage.

Of course, many injuries result from pure accident, and if the victim cannot prove that the person who caused the accident acted wrongfully, he will not be entitled to any compensation, despite his own innocence. This has been strongly condemned by critics of negligence law, who 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. Because of their frequency and tort law's inability to compensate adequately all those injured at work, every province has WORKERS' COMPENSATION legislation, allowing workers to receive compensation without the need to establish fault.

Many Canadian provinces have enacted similar legislation for highway traffic accidents and have replaced tort law by "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, although it is not yet an established cause of action. Older torts, such as negligence, are applied increasingly to professional groups such as doctors and lawyers to force them to live up to higher standards of competence when serving the public. As well, negligence law has allowed bystanders who suffer nervous shock as a result of 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 held accountable not only for their negligent acts but for misleading advice which may cause loss to others. This interesting 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, arguing that the civil remedy in tort has been and can continue to be valuable to citizens fighting against more powerful elements of our society.

Author LEWIS N. KLAR

Suggested Reading
Philip Osborne, The Law of Torts, 4th ed. (2011); Jamie Cassels & Craig Jones, The Law of Large-Scale Claims: Product Liability, Mass Torts, and Complex Litigation in Canada (2005).

Links to Other Sites
You and the law - Community Legal Information on the Web
An extensive listing of websites providing general legal information that may be of interest to Canadians. From University of Toronto’s Bora Laskin Law Library.

Canadian Online Legal Dictionary
The website for Irwin Law's Canadian Online Legal Dictionary.