Tort Law Notes- PHI2080

Notes For Tort Law UWO
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  Philosophy of Law Notes What is Law? A set of rules, which are enforceable by agents of the state. These agents of the state are empowered by the state, and we recognized that we will be governed by these rules. In this course we will be talking about the common law. Our common law system started in England in 1066. William the Conquer established a system by which you can have the king’s justice and this would make law consistent throughout the realm. He promised people justice if they came to the court (the court was where the king was). People willingly took this on. The King appointed judges and they dispensed rules, which became the common law. They started to write down the decisions that they made and they kept the records of these decisions in 1 place in the 13 th  C. they used past rulings from other judges to help make current decisions to remain consistent. We call this ‘judge - made’ law. The fantasy around judges is that they ar en’t making up the answer, they are figuring out the right answer. This system of ‘stare decisis’, which means ‘the decision stands’. When you get a decision with a legal principle in it, we say that the decision stands. It is not the entire case which is binding, just the reason for the decision. ‘Ratio decendendi’ (the reason for the decision) is the binding element in a past case. ‘Obiter dicta’ (things said by the way) are the elements that help us in the exercise of truing to determine what is binding and what is not. It is not always obvious to determine what is the ratio and what is binding in the case. This means that cases could be decided wrongly. This is a flaw in the common law system. The system is slow, laborious and sometimes unreliable which are all weaknesses in the common law system. It is a complicated system, which takes considerable expertise to maneuver. In Quebec, they have a civil code, so they just have to use 1 document, which has been complied. Statute laws are enactments created by elected officials. Statutes are often written to clarify or correct problems, which the common law cannot deal with. Common law affords a defense and statute law often takes defenses away. Statute law is out there to create a legal regime that protects or governs what would otherwise be a common law contractual relation. When the courts make a decision and interpret a statute, that decision can become binding on other courts, it becomes part of the body of common law. We have a hierarchical law structure (with upper and lower courts). We have small claims court, which was created by regulations that put them in effect (very small courts). Trial courts are also called the court of srcinal jurisdiction. The plaintiff is the person who is suing, the person who has to prove his case. The plaintiff sues witnesses to prove their case. The judge or jury (depending on the case) is the ‘trier of facts’. People with no particular expertise are expected to be able to act on a jury and be able to determine whether a person giving evidence is lying or telling the truth. The decision at trial court is not binding on any other court. Above the trial court, there is the Ontario Court of Appeal (when you want to appeal a decision). Questions of fact or credibility are not appealable; you can only appeal a ruling based on a mistake or error of the law. An appellant court only reviews documents; they don’t get to see the witnesses. You can only go to the court of appeal on a question of law. There can be 3-5 judges in the Ontario Court of Appeal. The decision at the Ontario Court of  Appeal binds the courts below. If one judge doesn’t agree, then he is said to have a dissenting   opinion . The dissenting opinion is kept on record because it might come to a point where the case is revisited and the dissenting opinion is found to be more accurate or just as accurate than the majority opinion. There are also cases where a judge agrees with another judge in the outcome but for different reasons (called concurring opinions ). The Supreme Court of Canada is above the Ontario Court of Appeal. The SCC binds every court below in every province in Canada. Tort Law The law of tort is the law of actionable wrongs. By actionable we mean that it is something that you can sue for. Action in law means a lawsuit. In tort law, we ask if there is any lawsuit recognizable in the common law. Tort law is the private law of lawsuits. Public law is when there is an offence against the state, where the state prosecutes and determines what to prosecute for. Private law is where private citizens are the litigants (people involved in the court action). There can be concurrent liability in both criminal and tort law (the same set of circumstances can generate a criminal case and a tort case). Some words, which mean the same, have different names in criminal law (assault in criminal law is battery in tort law, theft in criminal law is called conversion in tort law). In a criminal trial, the state has an onus of proving its case; the standard of proof is beyond a reasonable doubt. The standard of proof in a civil case is ‘a balance of probabilities’ (this is a lower standard of proof than in criminal court). There are 2 categories of torts: the intentional tort and the unintentional tort. Intentional torts are the oldest and they are actionable per se. These include trespassing, unlawful imprisonment and many others. Harm/injury is not a necessary element of intentional torts. We need to find blameworthy conduct to attach civil liability to a person. The primary unintentional tort is negligence. For an unintentional act, the law still has to find blameworthy conduct to attach liability. We need to find blame to say that you did something wrong, even in the case of negligence. In negligence, if your behaviour falls below a reasonable standard of care, then you are negligent. There are 5 elements to a negligence case/ action that a plaintiff needs to prove. 1.   Duty of care 2.   Standard of care 3.   Breach of standard 4.   Causation 5.   Damages If you cannot prove that damages occurred, then you will lose your case. You must prove harm/injury and that that injury was caused by a person that had a duty to be careful. There is a different way of looking at tort law in the United States. In the US there is a loss spreading mentality, when a company loses a case, they just spread the costs over their product so that in the end, everyone loses. In Canada (and the UK), there is a loss fixing mentality. By this, the courts try finding out whose fault it is and they identify the cause and whether or not there is a liability. Weinrib (author of the article) is a proponent of loss fixing, not loss spreading. He says that loss  spreading takes away the emphasis of figuring out whose fault an action is (the traditional system). WEINRIB:   Two conceptions of Tort Law (Negligence Law)   U.S.  –  Loss spreading   U.K. – Loss fixing   Loss spreading : U.S . Traynor J. in Escola v Coca Cola Bottling Co. , - cost of injury etc. overwhelming to π, therefore the law should simply make manufacturer an insurer for consumer  , - cost of injury spread among the public as a cost of doing business Loss Fixing: U.K. : Stephen J. : task of courts remains that of loss fixing and not loss spreading  1. insurance should have no impact or relevance in this determination 2. let the legislators do this specifically, tort law is to find whether liability exists on principle - loss fixing means finding out whose fault it is  –  fixing the blame Liability insurance: comes after liability  –  if no blameworthy conduct on part of tort feasor or defendant, therefore no liability Damages or loss only comes after Q of liability -- if the availability of insurance proceedings is a factor in determining liability, this is backwards, i.e. can’t decide π is at fault because there is money availab le to pay Emphasis on loss spreading takes away traditional emphasis on loss fixing , and distorts principled basis of negligence law Liability is a judgment on interaction, not a tax on activity   II of essay:   Features of tort law : 1. doing and suffering are correlative , make sense only in terms of each other - doing is only significant in terms of suffering and vice versa (this is only accurate for unintentional torts)  2.  justifications for tort law must also be correlative , deterrence is not a factor, because it effects only the doer; compensation alone leaves out the doer 3.  justifications yield a normative “structure ” based on above, - normative structure (underlying justifications) must be reciprocal  4. duty violated is also a right owed to π  5. the π enforces a private right only , not a public interest 6. π only entitled to remedy that def is obliged to provide , does not include blending of policy considerations or other outside factors, - quantifies the harm done by that act to that particular π  7. keeps the courts to their proper function, a resolution of a particular dispute, not a   utilitarian    justification  The central point from the preceding observations: private tort law is defined by the relationship between plaintiff and defendant, and an insurance company is not involved in this relationship, at the stage of determining liability. Part III: p 1 - 9   - insurance drains relationship of its immediacy - jurisprudence takes on instrumental, social policy aspect (this is a bad thing) - insurance avai lability becomes a measure of validity of π’s claim  - loss spreading, deep pockets, etc. Legislation is different from adjudication   Leg  - public policy objectives, specific, spelled out, debated, an expression of the political will - responds to and creates new situations Adj  - resolution of particular dispute - decides cases on existing, previously known, legal principle In Canada  –  we keep tort law essentially private Part IV Legal Realists  - they say that  judges do what they want to further policy  objectives and pay lip service to principle  by looking for cases and interpretations to rationalize a predetermined outcome.
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