Ison, t.G., The Forensic Lottery: a Critique on Tort Liability as a System of Personal Injury Compensation (London: Staples Press, 1967)

Little, J.W., "Up with Torts" (1987) 24 San Diego L. Rev. 861

Stapleton, J., "Tort, Insurance and Ideology" (1995) 58 Mod. L. Rev. 820

Sugarman, S.D., "Doing Away with Tort Law" (1985) 73 Cal. L. Rev. 558

Sugarman, S.D., "Serious Tort Law Reform" (1987) 24 San Diego L. Rev. 795

ABOUT THE AUTHOR

Phil Osborne is a professor of law at the University of Manitoba where he teaches the law of torts and the law of contracts. He is a co-author of Canadian Medical Law: An Introduction for Physicians, Nurses and Other Health Care Professionals, 2d ed. (with J.C. Irvine and B. Sneiderman).

GLOSSARY

Abatement

A self-help remedy to remove a nuisance from which the abator suffers.

Abuse of process

The use of civil process in furtherance of an improper motive.

Accident

An unexpected or untoward event that causes injury to another, or conduct that no reasonable person would foresee as creating a risk of injury to others.

Act of God

An extraordinary natural phenomenon that is beyond the foresight of a reasonable person and could not therefore be guarded against.

Actio per quod consortium amisit

;A Latin expression for a common law action originally available only to a husband (now extended to wives) for the loss of personal and domestic services arising from an injury caused by the tortfeasor to a spouse.

Actio per quod servitium amisit

;A Latin expression for a common law action brought by an employer for the loss of services of an employee injured by a tortfeasor.

Action

See cause of action.

Action on the case

A cause of action originating from the writ of trespass on the case. A feature of the writ was that the circumstances of the case were set out in it. Trespass on the case evolved into a number of nominate and innominate torts that are characterized by the need to prove fault and damage.

Actionable per se

An expression indicating that a tort is complete without proof of damage. It is applicable to the torts of trespass.

Assault

An intentional act causing another reasonably to anticipate immediate harmful or offensive bodily contact. Also used loosely to refer to the intentional injury of a person.

Bailment

A delivery of goods by one person (the bailor) to another (the bailee) for some purpose after which the goods are to be returned to the bailor.

Balance of probabilities

A standard of proof satisfying a judge or jury that the facts at issue probably occurred as alleged. Sometimes referred to as a preponderance of the evidence or a 51 percent likelihood of occurrence.

Battery

The

intentional and direct interference with the body of another that is either harmful or offensive.

Burden of proof

The

obligation to produce evidence to prove facts necessary to establish a cause of action or a defence. It normally rests on the person who asserts a particular matter.

Cause of action

A factual situation, the existence of which entitles a person to bring legal proceedings against another person and secure a remedy.

Cause-in-fact

The

factual link between one person's actions and another person's damage.

Charterparty

A contract under which an owner leases a ship to another (the charterer) for the carriage of goods.

Chattels

All movable property; goods.

Conspiracy

An agreement by two or more persons to carry out legal acts, the predominant purpose of which is to injure the plaintiff, or an agreement by two or more persons to injure another by illegal acts.

Continuing trespass

A trespass to land by wrongfully leaving or placing a chattel on the land of another. It gives rise to daily actions in trespass to land until the chattel is removed.

Contribution

A principle applicable where two or more defendants are jointly and severally liable. When the judgment is paid by one of the defendants, reimbursement (contribution) may be sought from the other defendant(s) in an amount proportionate to his (their) responsibility.

Contributory negligence

The

failure of a plaintiff to take care for her own safety which contributes to her loss.

Conversion

The

intentional interference with the right of another to a chattel which is of sufficient seriousness to require the interferer to pay for the chattel.

Damages

Compensatory: A monetary remedy designed to restore the plaintiff to the position he would have been in but for the tortfeasor's conduct.

Aggravated: A monetary remedy designed to compensate for the humiliation, distress, or embarrassment resulting from the tortfeasor's vicious, malicious, or shocking conduct.

Punitive (exemplary): A monetary remedy in addition to compensatory damages designed to punish the tortfeasor for his malicious, high- handed, or outrageous conduct.

Contemptuous (derisory): A monetary remedy in the smallest denomination to indicate that a tort has been technically committed but, in the opinion of the judge, the action should not have been brought because the plaintiff has suffered no real loss. It is usually applicable only in defamation actions.

Nominal: A small monetary remedy designed to indicate that, although the plaintiff has suffered no harm, a tort has been committed and the rights of the plaintiff have been infringed. Only applicable in torts that are actionable per se.

Non-pecuniary: A monetary remedy designed to compensate an injured person's pain, suffering, permanent loss of mental or physical capacity, and loss of expectation of life.

Pecuniary: A monetary amount designed to compensate the cost of future care of an incapacitated plaintiff and the loss of earning capacity.

Defamation

A communication that leads an ordinary person to think less of another person.

De minimis

;A Latin expression meaning that the law does not concern itself with trifles.

Detinue

A tort arising from the refusal to return a chattel after a demand has been made for it by a person with a right to the immediate possession of it.

Distress damage feasant

A self-help remedy that permits a possessor of land to impound a chattel which is wrongfully on his land as security for the payment of compensation for damage caused by it.

Duress

Coercion or compulsion to force another person to do some act.

Duty of care

The

legal obligation to exercise care in favour of the plaintiff and her interests.

Easement

A right enjoyed by a person over his neighbour's property, such as a right of way.

Enterprise liability

The

general concept of allocating all losses generated by a business, activity, or institution to that entity by means of strict liability.

Estate

The

property and rights of any kind enjoyed by a deceased at the time of his death.

Ex turpi causa non oritur actio

;A Latin phrase loosely translated as "no cause of action can arise from a base cause," which indicates that no action in tort is permitted if it would undermine the integrity of the legal system. It is a defence in rare cases such as where an award of damages would enable a plaintiff to avoid a criminal sanction or profit from wrongdoing.

False imprisonment

A direct and intentional confinement of a person within tangible or intangible boundaries.

Fiduciary

A person occupying a position of trust vis-à-vis another person.

First party insurance

A contract of insurance under which the insurer, in exchange for the insured's promise to pay premiums, promises to pay the insured compensation for loss arising from the happening of a given event.

Fraud

An untrue statement of fact that the speaker either knows to be untrue or is consciously indifferent as to whether it be true or false. A statement made without an honest belief in its truth.

Gross negligence

Conduct that carries a high degree of risk.

Harassment [as used in this book]

Conduct that is seriously annoying, distressing, and disturbing to another person but does not cause that person to fear for her own safety.

Indivisible damage

Damage caused by two or more persons no distinct part of which can be assigned to the conduct of any one person.

Inducement to breach a contract

Persuasion, encouragement, or coercion of a contracting party intended to secure a breach of her contract with a third party.

Injunction

A discretionary court order to do or not to do something. An injunction may be mandatory (requiring a positive course of action), prohibitory (requiring the cessation of some activity), interlocutory (an interim injunction before trial), and quia timet (issued before any damage has been suffered).

Injurious falsehood

An untrue and malicious statement made to a third party disparaging another person's business or property.

Intention

Conduct that produces consequences which are desired by the actor or are substantially certain to occur.

Inter alia

;A Latin phrase meaning among other things.

Inter vivos

;A Latin phrase meaning from one living person to another.

Invitee

A visitor in whom an occupier of land has an economic interest.

Joint and several liability

All

tortfeasors are collectively and individually liable for the plaintiff's loss. The plaintiff may choose which tortfeasor against whom to execute his judgment.

Jus tertii

A Latin phrase for "a right in a third person."A normally unsuccessful plea made by a tortfeasor in respect of an action for trespass to land or chattels indicating that the plaintiff's possession was wrongful vis-à-vis a third person.

Liability insurance

A contract under which the insurer, in exchange for premiums paid by the insured, undertakes to protect the insured from legal liability of a kind and to an extent set out in the policy.

Libel

Originally, a defamatory statement in written form. The term now extends to defamatory statements in visible and permanent form.

Licence

Permission to be on the land of another.

Limitation of action

The

time period in which a plaintiff must commence a tort action. The various time periods are set out in provincial Limitation of Actions legislation and other statutes.

Malice

To act with a bad or improper motive.

Malicious prosecution

A baseless, improper, and unsuccessful prosecution of the plaintiff which causes actual damage to him.

Market deterrence

The

general concept of allocating accident costs to the producers of those accidents so that the costs of accidents are internalized in the price of a product or activity. It is anticipated that the high cost of dangerous products and services will lead consumers to purchase cheaper (safer) products and services, thereby creating incentives to reduce accidents.

Mesne profits

Damages for the loss of use of land, damage to land, and the cost of recovering land awarded to an owner of land who recovers possession from a trespasser.

Misappropriation of personality

The

unauthorized use of the name or likeness of a person in order to sell one's goods or services.

Misfeasance

An act or the failure to act which creates a risk of harm to another person.

Misfeasance in public office