Charles Mwewa
Tort law
A Tort is generally defined as a wrong that occurs between or among parties. The person or corporation (as a legal entity) that allegedly commits a tort against another person or corporation is called a Tortfeasor.
A tort is not a crime, because it is not a public wrong and is not committed against the State or the Crown. A tort is a private, civil wrong.
A tort is not a contractual wrong, because it is not based on a contractual agreement. A tort is, therefore, a civil wrong other than a breach of contract for which one can seek relief in the court of law.
Negligence and the concept of “duty of care” in circumstances where there is not a contract first appeared in Donoghue v Stevenson, [1932], AC 562 (HL). Is the most common tort; a mistake which may be ensured.
Tort law – individuals’ responsibility for pursuing remedies for wrongs between them
Concerned with compensation
Unintentional wrongs (example, negligence) and intentional wrongs
Civil liability
Plaintiff decides whether to sue or settle
Contract and tort law is rooted in the common law
Tort Principles in Statute Law
Tort principles may be codified into statutes where:
Government chooses to regulate an activity
Example: driving on public roads
The common law rules that regulate an area of the tort law require systematic updates or reconciliation
Example: law relating to the liability of the occupiers of property
Tort: a wrong that occurs between two or more parties
Tortfeasor: the person, persons or company alleged to have committed a wrong against another person, persons, or company
General Elements (components of a tort)
Duty
In order to have a tort action, the person who committed a “wrong” must owe another party a duty. A duty of care is the obligation to use reasonable care to avoid hard. The standard required to do so is that of a reasonable person.
Breach of Standard of Care (breach of duty):
The failure to use reasonable care. A tortfeasor breaches his or her duty owed to another when his or her actions fall short of a standard of care.
Causation of Harm:
Two types, in-fact (but for test) and in-law, the latter is called proximate cause, which is the legal responsibility to bring a tortuous case. The breach of duty must be the “cause” of the harm suffered.
Harm Suffered
Generally, though not always, the plaintiff must prove compensable harm. The actual hard or loss that results from failure to use reasonable care.
Tortfeasor’s Intent
Covers a range of levels of intent, including:
Willful blindness
Recklessness
Carelessness
Accident
What determines the type of tort is the intention involved in the ensuing damage or wrong. There is no wrong until there is harm or loss. The intention that leads to a tort could be wilful blindness (knowledge, deliberately) or transferred and this will be intentional tort; could be reckless, carelessness or a mistake or statutory and this will lead to negligence and the special liability torts)
The Major Categories
Intentional Torts (harm with intent or knowing act would result in certain injuries to a party but choose to engage in it anyway or wilful blindness)
Transferred Intent
Negligence
Vicarious, Strict, and Absolute Liability [LIABILITY TORTS] – Special torts (occupiers’ liability; professional malpractice; product liability; not social liability, see Childs v Desormeaux, 2006 SCC 18). Strict liability = engaging in inherently dangerous activities, no need to prove intent or negligence e.g. in product liability;
Torts of transferred intent occur where the defendant’s intentional act was directed at one party but harmed a different party.
Where defendant intended to commit an act, it does not matter that the victim was the specific party the defendant intended to harm.
Negligence is a tort based on careless conduct that creates a reasonably foreseeable risk of harm when a duty of care is owed to another and reasonable care is not used, resulting in damage or injury to another. The injury was reasonably foreseeable.
The heart of tort law; most personal injury and property damage cases
Vicarious liability: liability of a principal for the negligent or tortious acts of the principal’s agent done within the scope of the agent’s authority or employment
Strict liability: liability that is imposed even though no negligence or intentional tort occurred
Absolute liability: liability that is imposed automatically (usually under a statute) when certain conditions are met, without reference to negligence or intent
Settlement Conference:
Trial Process:
Structure of a Trial/Hearing:
o Direct Examination/Examination-in-Chief o Cross Examination
o Re-Examination/Reply
STEPS IN LITIGATION OF ADMINISTRATIVE TRIBUNAL
LANDLORD AND TENANT BOARD HEARING
o Direct Examination
o Cross Examination
o (Re-examination)
o Direct Examination
o Cross Examination
o (Re-examination)
STEPS IN LITIGATION OF ONTARIO PROVINCIAL OFFENCES COURT
o Direct Examination
o Cross Examination
o Re-examination
o Direct Examination
o Cross Examination
o Re-examination
Both Direct-Examination and Cross-Examination are important and should be given equal weight
Direct-Examination can be just as dramatic as Cross-Examination – depends on the nature of the case, the personality of counsel/agent and the result desired
Make a strong impression on the judge/adjudicator through both the Direct- and the Cross-
Know that judges/adjudicators form their own impression of whether a witness is lying earlier in the case; so aim to elicit the truth through your witness
The general rule in Direct is that you are not supposed to lead your witness. “Leading a witness is suggesting the answer to the witness.”
The adversarial system does not permit for leading Leading gives your evidence little weight
Exception, you may lead on: non-contentious matters such as a person’s age, background, education, family, work history, and etc.
In Direct, the court needs to hear your client explain or expand the case
Professor Wigmore called Cross-Examination, “The greatest legal engine for the discovery of truth.”
Note that most witnesses want to tell the truth in court but they may be hampered by memory, viewpoints, and etc.
Use Cross to elicit testimony that is favourable to your client’s case
While you may not know what questions will be asked in Direct, be prepared and anticipate what may be asked – be versatile and able to deal with every different situation that may arise during a trial
Testimony’s will be compared, so ensure that your witnesses’ testimonies are consistent
coming soon
coming soon
coming soon
Contract Law, I - An Introduction
Canada is a bijural nation, meaning that two legal systems exist in Canada side by side: the English Common-Law and the French Civil Law (mostly in Quebec). Criminal law applies to all the provinces and territories in Canada.
Charles Mwewa
Copyright © 2012 - 2022 Charles Mwewa - All Rights
We use cookies to analyze website traffic and optimize your website experience. By accepting our use of cookies, your data will be aggregated with all other user data.
