General Principles Of Tort Law
Several general principles or concepts apply throughout tort law: burden of proof, liability, defences, and remedies. Therefore, these concepts will be discussed before exploring specific torts.
Burden of Proof
Since torts are civil actions rather than criminal actions, the plaintiff must prove his or her case on a balance of probabilities. In numerical terms, this means that there is a better than 50% chance that the plaintiff was harmed by the defendant. In certain circumstances, because it can be difficult for a plaintiff to know all of the particulars about a tort committed against him or her, the plaintiff may initially meet this burden of proof using circumstantial evidence. The burden of proof then shifts to the defendant to prove—also on a balance of probabilities—that he or she was not at fault.
Liability
Tort law recognizes both primary liability, which arises from one’s own personal wrongdoing, and vicarious liability, which arises because of a relationship with the person who actually committed a wrong. It also recognizes that more than one person may be responsible for a tort (joint tortfeasors) and that the defendant may be at least partially to blame for the harm that has happened (contributory negligence). Finally, it also recognizes the role of insurance in managing risks associated with torts.
Vicarious Liability
Under the doctrine of vicarious liability, an employer is liable for a tort that was committed by an employee provided that the tort was committed during the course of the employee’s employment. An employer is not liable for torts committed by independent contractors. The courts are inclined to view a person as an employee rather than an independent contractor, regardless of what the person is called by the employer, if:
1. The employer generally controls what is done, how it is done, when it is done, and where it is done.
2. The worker uses the employer’s equipment and premises.
3. The worker is paid a regular wage or salary instead of a lump sum at the end of each project.
4. The worker is integrated into the employer’s business and is not in his or her own business.
Under the doctrine of vicarious liability, tort victims may sue both the employer and the employee and may recover all or some of their damages from either defendant. If the employer pays, it can claim that amount from the employee. This is seldom done due to the employee’s inability to pay and the poor impact it would have on productivity if employees were fearful of being held liable for actions done in the course of their jobs.
Vicarious liability serves tort law’s compensatory function by allowing collection from an employer who is more likely to be able to pay or to have insurance. It serves as a deterrent since it encourages employers to avoid very hazardous activities and to hire qualified people and engage in training. It is also viewed as fair to require a business to bear responsibility for the losses its activities create, even if those losses were due to the misdeeds of employees.
Liability and Joint Tortfeasors
When two or more people are held to be jointly responsible for the victim’s loss, the plaintiff “can sue any or all of them, with recovery apportioned between the joint tortfeasors according to their level of responsibility.” Nevertheless, the plaintiff can actually recover 100% of the judgment from any one of those defendants, thus making it possible for the plaintiff to collect from those in the best position to pay the damages.49
Contributory Negligence
The plaintiff may be held by the court to be partially responsible for the harm or loss that was incurred. If the defendant’s defence of contributory negligence is successful, the amount of damages awarded to the plaintiff will be reduced by the proportion for which the plaintiff is responsible. For example, if damages are $25,000, and the plaintiff is held to be 20% responsible, the damages paid would actually be $20,000.
Liability Insurance
In keeping with good risk management by businesses, it is considered prudent to purchase liability insurance. This is a “contract in which an insurance company agrees, in exchange for a price, to pay damages on behalf of a person who incurs liability.”50 Liability insurance also includes a duty to defend, whereby the insurance company pays the expenses related to lawsuits against the insured party.
While liability insurance contributes to the compensatory function of torts, which aims to fully compensate those who are wrongfully injured, it can also undermine the deterrence function when people know that their insurance companies will pick up the tab if something goes wrong. However, there may still be a deterrent since excessive claims will translate into higher insurance premiums or difficulty obtaining insurance. Insurance contracts may also contain exclusions that shift some liability to the insurer.
Defences
More will be said about specific defences when individual torts are discussed since the defence varies depending on the tort. However, there are a few common defences:
· Contributory negligence – This was discussed earlier.
· Consent – The defendant either consented to the action or voluntarily assumed the risk inherent in the event that gave rise to the loss.
Limits to Damages in Torts
In tort law, there are various legal limits to compensation for losses suffered as not every conceivable loss of a plaintiff can be compensated. These include:
· Lack of causation – The defendant’s action did not cause the plaintiff’s damages.
· Too remote – The relationship between the defendant’s action and the plaintiff’s loss is too remote, i.e., the defendant could not have reasonably foreseen the type of damage that occurred.
· Failure to mitigate – Where the plaintiff fails to take reasonable steps to minimize losses, the damages awarded will be capped at what the court deems they would have been had the plaintiff mitigated his or her damages.
Remedies under Tort Law
Figure identifies the various categories of remedies available under tort law and their purposes.
Figure : Tort Law Remedies and their Purposes
Compensatory Damages
Compensatory damages require the defendant to pay for the losses the plaintiff suffered as a result of the tort. As noted earlier when comparing torts and contracts, the goal is to put the plaintiff back to the position the plaintiff enjoyed before the tort occurred. There are two types: special and general.
Special damages compensate the victim for out-of-pocket expenses that are fairly easy to quantify, e.g., medical bills, the cost of repairing a car, or actual lost wages. General damages include more speculative items like future loss of earnings due to disability and non-pecuniary (non-monetary) losses such as awards for pain and suffering, loss of enjoyment of life, and loss of life expectancy.
Compensation will be awarded only if the defendant’s wrongdoing caused the plaintiff to suffer a loss and if the connection between the tort and that loss is not too remote. A loss is too remote if a reasonable person in the position of the wrongdoer could not have reasonably anticipated the harm that flowed from the act. As well, it is in the plaintiff’s best interest to take reasonable steps to mitigate the loss because the plaintiff will only be compensated for those losses that could not reasonably be avoided.
Punitive Damages
Punitive damages are rare. They are awarded to punish a defendant who has acted in a “harsh, vindictive, reprehensible and malicious” manner. The Supreme Court also requires that punitive damages be proportional to the tort and “no more than necessary to punish the defendant, deter wrongdoers, or convey denunciation of the defendant’s conduct.”
Nominal Damages
Nominal damages are nominal monetary amounts awarded to recognize that a tort was committed but that no damages occurred. They are restricted to intentional torts and strict liability torts.
Injunctions
Injunctions are court orders that require the offending party to do something or to refrain from doing something. They are used when compensatory damages are inadequate to replace what the plaintiff has lost. For instance, an injunction may restrain the defendant from trespassing on the plaintiff’s property; or in the case of conversion of property (wrongful exercise of control over another’s property), the court may order restitution, the restoring of the property to its rightful owner.