The word tort comes from the Latin tortum, meaning "wrong, injustice." Tort law is an important cornerstone of the Canadian legal system and provides compensation for people who have been injured by the wrongdoing of others.
The word tort comes from the Latin tortum, meaning "wrong, injustice." Tort law is an important cornerstone of the Canadian legal system and provides compensation for people who have been injured by the wrongdoing of others. It affects nearly every walk of life, from manufacturers and employers to pet owners, drivers, doctors and bartenders, all of whom have a duty of care. Tort law is a vast area of private law that has evolved over the years to keep up with technology and social issues. It has been used by a growing number of victims of crime to help them seek justice against their perpetrators, and has been at the centre of recent high profile Canadian cases involving birth control pills and breast implants.
Tort Law and Intentional Torts
The purpose of tort law is not to punish wrongdoers but to provide damages to victims as compensation for their losses. Although most tort law is judge-made (see Judiciary), some originates in statutes, which vary from province to province. Unlike CRIMINAL LAW, which involves the state, tort law is used by individuals to claim compensation. It also differs from contractual law, where parties have agreed to certain terms or conditions. In tort law, financial settlements are used whenever possible to help victims.
Intentional torts are the most serious. They are deliberate acts intended to injure others, or to interfere with another person’s rights. A common one is battery, which can involve violence with the intent to injure, but may also be a well-meaning act which, although intended to benefit a person, interferes with their right to security and dignity. Every medical treatment, for example, performed without the consent of the patient is considered battery, regardless of the doctor’s intent to provide the best care possible. The law respects the absolute right of all competent persons to decide what medical treatment they will accept or refuse.
Other intentional torts include assault and false imprisonment. A person can also sue for acts intended to cause emotional distress. Sexual or workplace harassment can fall under this tort and, in these cases, a court may award extra or punitive damages to punish the wrongdoer, although this rarely happens.
When a person is injured by a criminal act, the offender may be prosecuted, as well as sued through civil court for damages. Tort law is increasingly used by victims of sexual assaults as they find it is therapeutic to seek damages even when there is a criminal prosecution.
Often criminals do not have the funds to pay tort judgements, so recovery of damages is available through victim compensation funds in most provinces and territories.
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 can protect athletes from being sued for physical contact, as long as the contact is an ordinary part of the game. As well, numerous statutes such as the Criminal Code, allow the police to detain and imprison people, or to seize their property. If any of these defences are accepted by the court, the action under tort law will be dismissed.
Torts can involve property as well as people. Trespassing falls under intentional torts, as does conversion, which is interfering with another person’s goods, and detinue, which is refusing to return something belonging to another person.
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 people cause or contribute to their own injuries, they will be held at least partly responsible for their damages under the contributory negligence defence. Negligence expanded significantly in the 20th century and now covers a wide range of accidents. Bars, for example, can be held liable if they fail to ensure that their intoxicated customers take reasonable care when going home. Drivers 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 awards 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, such as funeral expenses.
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.
Land and Product Liability
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.
Employment and Economic Torts
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 tortious 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 with "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.
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. 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 also 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.
Philip Osborne, The Law of Torts, 5th ed. (2015); Jamie Cassels & Craig Jones, The Law of Large-Scale Claims: Product Liability, Mass Torts, and Complex Litigation in Canada (2005).