Definition and Purpose of Tort Law

A tort is a civil wrong other than a breach of contract

Tort law defines what constitutes a legal injury and establishes the circumstances under which one person may be held responsible (i.e., liable) for another’s injury

Categories of Torts Intentional torts – torts against the person (assault,

battery, false imprisonment, intentional infliction of mental suffering, malicious prosecution, libel and slander, and fraud) and property torts (trespass to property, trespass to chattels and conversion)

Negligence – covers the full scope of human activity (e.g., product liability, “slip and fall”, negligent misrepresentation, professional negligence, etc.)

Strict liability torts – nuisance

The Evolution of Tort Law Tort law has evolved over time based on

case law

Additional torts have also been created by statutes (e.g., occupiers liability, competition law)

Perceived failures of the common law to address the needs of society through tort law have led to additional statutory reforms (e.g., workers’ compensation and negligence legislation)

Elements of a Negligence Claim Duty of care owed by defendant to the plaintiff

according to the proximity (i.e., “neighbour”) principle

Breach of the duty of care by a failure to meet the required standard of care, which is that of the reasonable person in the circumstances

Causal link between the defendant’s act or omission and the plaintiff’s loss (i.e., damages)

Damages were reasonably foreseeable at the time of the breach

The Duty and Standard of Care Owed by Professionals

Professionals have a duty to exercise the skill, care and diligence that may reasonably be expected of a person (i.e., a professional person in a particular discipline) of ordinary competence, measured by the professional standards of the time

Negligence and Economic Harm

Negligence can involve compensable harm that is purely economic in nature

This is often, though not exclusively, the situation in cases involving negligent misrepresentation

Defences to Negligence Claims No duty of care owed – the duty of care can only

arise in circumstances involving reasonably foreseeable harm and proximity sufficient to establish a duty of care and where there are no policy reasons that would negate the establishment of the duty of care

No breach of the standard of care

No damages were caused by a breach of the standard of care

Damages were not reasonably foreseeable

Limitation period has expired

Elements of Negligent Misrepresentation

Duty of care exists based on a special relationship (e.g., professional person and lay person who may reasonably rely on the professional person’s professional expertise)

Professional person makes representation that is untrue, inaccurate or misleading

The representation is made negligently

Person receiving the representation relies on it in a reasonable manner

The reliance is detrimental and damages result

Defences to Claims for Negligent Misrepresentation

No duty of care is owed – (e.g., plaintiff is not a member of the class of individuals that professional knew would rely on the misrepresentation)

Plaintiff’s reliance is not reasonable (e.g., the representation was part of a discussion and not a formal opinion or the professional limited liability through a disclaimer clause)

Professional’s negligent misrepresentation did not cause damages

Limitation period has expired

Objective of Damages for Commission of Tort

To restore the plaintiff to the position he or she would have been in if the tort had not been committed

Damage Awards for Commission of Tort

General damages – compensation for non-monetary loss or harm suffered as a result of the commission of the tort that was foreseeable when the tort was committed (e.g., pain and suffering, mental distress or damage to reputation)

Special damages – compensation for the quantifiable monetary losses suffered by the plaintiff that include direct losses (such as amounts the plaintiff had to spend to try to mitigate problems), consequential or economic losses (such as lost profits in a business), and punitive damages, where applicable

Punitive damages – awarded to punish certain types of behaviour (e.g., fraud or bad faith)

Plaintiffs have a duty to mitigate their damages

Vicarious Liability

In certain cases, one person can be liable for the harm cause by another

One example relevant to professional liability is an employer’s liability for the actions or omissions of its employees

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