- •Introduction
- •1) Criminal Law and Tort Law Contrasted
- •B. The origins of canadian tort law
- •1) The Nature of the Defendant's Conduct
- •2) The Nature of the Plaintiff's Loss
- •D. The objectives of tort law
- •2) The Instrumentalist View
- •I) Specific Deterrence
- •II) General Deterrence
- •III) Market Deterrence
- •E. Personal injury, tort law, and other compensatory vehicles
- •1) Governmental Initiatives
- •2) Private Sector First-Party Insurance
- •F. The organization of tort law
- •A. Introduction
- •1) Application of the Standard of Care
- •I) Judicial Policy
- •2) Special Standards of Care
- •3) Proof of Negligence: Direct and Circumstantial Evidence
- •1) Cause-in-Fact
- •4) Market Share Liability
- •5) Loss of a Chance
- •6) Multiple Tortfeasors Causing Indivisible Damage
- •D. Damage
- •E. The duty of care
- •1) The Foreseeable Plaintiff (The First Branch of the Anns Test)
- •2) Policy Considerations (The Second Branch of the Anns Test)
- •The Supreme Court decision in Galaske V. O'Donnell [Note 123:
- •In its recent decision in Ryan V. Victoria (City) [Note 126:
- •F. Remoteness of damage
- •1) The Foreseeability Rule
- •G. Defences
- •1) Contributory Negligence
- •2) Voluntary Assumption of Risk (Volenti Non Fit Injuria)
- •3) Illegality (Ex Turpi Causa Non Oritur Actio)
- •4) Inevitable Accident
- •H. Remedies
- •1) Personal Injury
- •I) The Impact of the Trilogy
- •2) Death
- •3) Property Damage
- •A. Introduction
- •B. Products liability
- •1) Manufacturing Defects
- •2) The Duty to Warn
- •3) Reasonable Care in Design
- •1) The Duty of Care
- •2) The Standard of Care
- •D. Human reproduction
- •1) Prenatal Injuries
- •2) Wrongful Birth
- •3) Wrongful Life
- •4) Wrongful Pregnancy
- •E. Occupiers' liability
- •1) The Classical Common Law of Occupiers' Liability
- •2) The Modern Common Law of Occupiers' Liability
- •3) Legislative Reform
- •F. Breach of statutory duty
- •G. Pure economic loss
- •I) Foreseeable Reliance/Reasonable Reliance : The Prima Facie Duty of Care
- •II) Policy Concerns: The Issue of Indeterminacy
- •2) Negligent Performance of a Service
- •3) Relational Economic Loss
- •I) Contractual Relational Economic Loss
- •4) Product Quality Claims
- •H. Governmental liability
- •2) Negligence
- •In Rondel the House of Lords provided a number of reasons for the immunity. They included:
- •Intentional torts
- •A. Introduction
- •B. The meaning of intention
- •C. Intentional interference with the person
- •1) Battery
- •3) False Imprisonment
- •5) False Imprisonment and Malicious Prosecution
- •6) Malicious Procurement and Execution of a Search Warrant
- •7) Abuse of Process
- •9) Privacy
- •10) Discrimination
- •12) Harassment
- •13) Defences to the Intentional Interference with the Person
- •III) Defence of a Third Person
- •V) Discipline
- •VI) Necessity
- •VII) Legal Authority
- •VIII) Illegality: Ex Turpi Causa Non Oritur Actio
- •II) Contributory Negligence
- •1) Elements of Liability
- •2) Defences to the Intentional Interference with Land
- •3) Remedies
- •4) Trespass to Land and Shopping Malls
- •5) Trespass to Airspace
- •E. Intentional interference with chattels
- •1) Trespass to Chattels
- •3) Conversion
- •4) The Action on the Case to Protect the Owner's Reversionary Interest
- •5) An Illustrative Case: Penfold's Wines Pty. Ltd. V. Elliott
- •6) The Recovery of Chattels
- •F. Intentional interference with economic interests
- •1) Deceptive Practices
- •II) Conspiracy to Injure by Unlawful Means
- •I) Direct Inducement to Breach a Contract
- •II) Indirect Inducement to Breach a Contract
- •Intentional Interference with the Person
- •Barry j. Reiter Melanie a. Shishler
- •1) Elements of Liability
- •2) Defences
- •Barry j. Reiter Melanie a. Shishler
- •1) The Elements of Liability
- •3) Dogs
- •4) The Scienter Action and Negligence
- •Barry j. Reiter Melanie a. Shishler
- •1) Elements of Liability
- •2) Defences
- •Barry j. Reiter Melanie a. Shishler
- •2) Principal and Agent
- •3) Statutory Vicarious Liability
- •4) Independent Contractors
- •In Lewis (Guardian ad litem of) V. British Columbia, [Note 50:
- •5) Liability of the Employee or the Agent
- •Barry j. Reiter Melanie a. Shishler
- •Chap.6 Contents
- •1) Physical Damage to Land
- •2) Interference with Enjoyment and Comfort of Land
- •7) Defences
- •8) Remedies
- •1) The Definition of a Public Nuisance
- •A. Introduction
- •2) Reference to the Plaintiff
- •3) Publication
- •E. Defences
- •2) Privilege
- •3) Fair Comment on a Matter of Public Interest
- •F. Remedies
- •H. The next challenge: political speech
- •A. Introduction
- •1) Contract Law and Tort Law
- •2) Fiduciary Law and Tort Law
- •3) Restitution and Tort Law
- •C. Public law
- •1) The Charter of Rights and Freedoms and Tort Law
- •A. The centrality of the tort of negligence
- •B. The dynamism of the tort of negligence
- •C. Generalization and integration
- •D. Reform and modernization
- •E. The triumph of compensation and loss distribution policies
- •Ison, t.G., The Forensic Lottery: a Critique on Tort Liability as a System of Personal Injury Compensation (London: Staples Press, 1967)
- •Intentional conduct of a public official in abuse of her power, or knowingly beyond the scope of her jurisdiction, causing damage to the plaintiff.
- •Preface
- •Philip h. Osborne
2) Principal and Agent
The relationship of principal and agent is one where the principal empowers the agent to act on her behalf in such a way as to affect her legal relationship with others. The agent is most commonly authorized to make contracts and transfer property on behalf of the principal. The general rule is that the principal is vicariously liable for the torts of her agent committed within the scope of her actual or apparent authority. Most of the cases involve fraudulent misrepresentations in respect of contracts entered into by agents but there are numerous cases dealing with a wide range of torts for which the principal has been held liable. It should be pointed out that many agents are also employees. In those circumstances, plaintiffs often rely on the vicarious liability of the employer since the phrase "course of employment" is normally broader than "scope of authority." When an agent is an independent contractor, reliance must be placed on the agency rules of vicarious liability.
Agency also forms the basis of liability in partnership law. The partnership firm and all other partners are liable for the tortious acts of partners acting in the ordinary course of the firm's business or within the scope of their authority.
3) Statutory Vicarious Liability
The rules of vicarious liability have been modified legislatively in respect of the owners of motor vehicles. The purpose is to extend the common law vicarious liability of the owner of the motor vehicle to cover the torts of employees who are driving the vehicle in the course of employment to members of the owner's family, and in some provinces the rules have been extended to any persons who are driving the motor vehicle with the owner's consent. The Ontario legislation, [Note 49: Highway Traffic Act, R.S.O. 1990, c. H.8, s. 192(1). ] for example, makes the owner liable for all damage caused by the negligent operation of his motor vehicle on a highway unless the motor vehicle was in the possession of some person without the owner's consent. Although the wording of the provincial legislation is not uniform, the general policy is clear. It is to allocate accident losses caused by authorized drivers to the owner of the motor vehicle who has ultimate control over the use of the vehicle and liability insurance.
4) Independent Contractors
An independent contractor is normally a discrete business entity that is independent from the employer who hires it. It is able to take its own risk management and accident prevention measures and arrange for appropriate liability insurance. A person who employs an independent contractor to perform services or undertake tasks on his behalf is not, therefore, ordinarily liable for the torts committed by the contractor carrying out the work.
The employer does, however, have some personal duties in respect of independent contractors, including a duty of care in selecting and hiring the independent contractor and a duty of care to supervise the contractor to the extent that is reasonable, having regard to the technicality of the work. There may also be liability where the contractor is directed by the employer to carry out an illegal task.
a) Non-delegable Duties
There are some truly exceptional circumstances where the employer is subject to statutory and common law duties that are non-delegable. In those circumstances, the work may be delegated to an independent contractor but the employer remains fully responsible for the failure of the contractor to take care in its performance. A non-delegable duty resting on the employer is not merely a duty to take care. It is a duty to ensure that care is taken. The concept of a non-delegable duty is a useful device that allows a court to advance the policies supporting vicarious liability to independent contractors when the circumstances suggest that it is appropriate to do so.
The categories of non-delegable duties are diverse and include duties of care in respect of hazardous activities including fire, strict statutory duties to perform a positive act, the duty of a landowner to provide lateral support, the duty not to create a nuisance, the custodial duty of care of a bailee for reward, and duties of care arising from the exercise of some statutory powers. In the past, courts have been content to list these duties without attempting to clarify an underlying principle that justifies the imposition of a greater responsibility for independent contractors in these situations.