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Introduction to Tort Law, Alternative Dispute

Reosolution, and Civil Litigation

Alvin Wang

What is Tort Law/Civil Litigation?

When a person has legal liability for another person(s),

Tort Law accompases the idea of preventing negligence,
or a wrong that is committed onto the latter, their
property, and their reputation; This is to prevent suffering
(in the form of loss or harm).
Civil law is non-criminal law. Civil Litigation deals with
contract disputes, civil wrongs, and negligence.
Comparative to Criminal law, which is to find retribution to
the crime (and not justice for the victim, but for society),
Civil Law is used for restitution (compensation) and is to
seek justice for the victim.

History behind Tort Law

The Modern concept of Tort Law and Negligence began
in 1932, Scotland with the case Donoghue v. Stevenson.

In Canada, a similar case was in 2005, Mustapha v.
Culligan was heard. The appelant (Mustapha)
claimed he suffered severe psychological harm
from the incident. The Supreme Court dismissed
the appeal for the purpose of Remoteness.

Principals of Tort/Civil Litigation

Duty of Care
Even if a person acted carelessly, they will not always be
liable in negligence. A defendant is only liable for an
injury to a plantiff if they have a duty towards them.

Standard of Care
The standard of care is the level of care expected of the
defendant. The purpose of Standard of Care is to look if
the person took the care that would have been given by
the average person in the profession.

Principals of Tort/Civil Litigation

Limitation Period
If a plantiff wishes to commence an action, he/she must
do so within two years of the time he/she knew or ought
to have known the facts giving rise to the claim.
Level of Proof: Balance of Probabilities
The elements of a negligence claim must be established
on a balance of probabilities ("more probable than not",
as opposed to the criminal justice system's concept of
"beyond a reasonable doubt"/Mens Rea, Actus Reus)

Principals of Tort/Civil Litigation

Causation asks the question "but for the negligent
action(s) of the defendant, would the plantiff have
suffered the injuries complained of?".
The CMPA (Only for Medical Malpractice)
If there is a Medical Malpractice lawsuit in Canada,
the Canadian Medical Protection Association will
work on behalf of the defendant. Because of their
vast resources, many chose to settle early and not
go to trial.

Examples of the Reasonable Person


Who is a reasonable driver, and who's driving falls below

the objective standard?
What do we know what a "reasonable driver" is?

Negligence: Standard of Care

Negligence is a breach of the objective standard of care.
What is an objective standard?
Legal Question:
Did the party act as a person of ordinary prudence would
preasonably have done in cimilar circumstances?

Vaughan V. Menlove, 1837

Negligence: Standard of Care

Once the Obejective Standard has been determined, it brings

the question:
Did the Defendant breach this standard of care?
Was risk so small a reasonable person justified in taking no
steps to eliminate it? What was the severity and probability of

Refer to Bolton v. Stone

Duty Asks "Should I have been looking out for you?"

Part 1: You must take reasonable care to avoid acts or omissions
which you can reasonably foresee would be likely to injure your
neighbor. (Neighbor Principle, Donoghue v. Stevenson)
Act or Omission?: A Doctor forgets to wash his/her hands before
Act of Omission?: You forget to lock the foor at work, and cash is

Duty Asks "Should I have been looking

out for you?"

Part 2: To be liable for injury, it must have been

reasonably foreseeable.
Palsgraf v. Long Island Railway

"Is the Plantiff's injury of the very nature for which we ask the
Defendant to take care?"
Wagon Mound 1: In cases involving property damage, reasonable
foreseeability of consequences makes you culpable and what
defines the extent of you liability.
Wagon Mound 2: In cases involving property damage, does the
magnitude of the potential accident overtake the seriousness of
the risk.

To dertermine if the Defendant's act caused the
Plantiff's injury, use the "but for" test.
"But for the defendants negligence, would the
Plantiff have suffered this injury?"

The Civil Court System/Trial Procedures

Small Claims Court

The lowest of the Civil System, where lawyers are
not nessesarily needed for representation, and
instead the defendant and plantiff can defend
themselves. This court only deals with claims that
are up to $10 000. In Ontario the maximnm reward
for compensation is $25 000.

Comparing Criminal and Civil Law

Case Factors

Criminal/Public Law

Civil/Private Law

Parties involved

Crown Attorney vs. Accused

Plaintiff vs. Defendant


To determine innocence or
guilt of the accused

To resolve a dispute

Purpose of Action

To punish offender

To compensate for harm

Onus of proof

On Crown Attorney


Burden of proof

Beyond a reasonable doubt

Balance of probabilities

Result of action

Accused is guilty or not


Defendant is liable or not

liable for damages

Action taken if defendant is

guilty or liable

Accused sentenced

Plaintiff awarded some

compensation or remedy

Comparing Criminal and Civil Law

If a person

It may be a crime of....

And also the tort of...

hits another person



breaks into someone's


break and enter

trespass to land

takes someone's


trespass to goods

Defences to Torts
Voluntary Assumption of Risk
Essentially, the Defendant must prove the Plantiff appreciated the risk involed
and willingly took it.
Contributory Negligence
Where the Plantiff had contibuted to the incident and the Defendant should not
be completely liable.
Inevitable Accident
The defence of inevitable accident requires the defendant to prove that
conditions beyond personal control occurred, and that an accident could not
have been avoided, even with great skill and care.
Informed Consent
Where the person is told of all risks to the activity they are doing, and agree to
go forward.

FYI: Class Action Lawsuits

A lawsuit brought by one or more plantiffs on behalf

of a large group of others who have a common legal
More difficult to bring to trial than a single action.
Ex. Erin Brockovich

OK,You have a Tort. Now What?

Congratulations, the case has some merit :) (or not :l
Now, if the case is ruled in the plantiff's favour, they
can proceed to the resolution.
Which is almost always montetary compensation.

Types of Damages

A plantiff can claim the following:

a) Nominal Damages

b) Compesatory Damages

c) Punitive Damages

Alternative Dispute Resolution

Civil Litigation tends to take a great deal of time and money to resolve.
Because of this expense, more and more people are now relying on
Alternative Dispute Resolutions (ADR). And now is mandatory in many
civil litigation cases due to the backlog and rationality of lawsuits.

Advantages of Alternative Dispute Resolution

It is less expensive than tradition litigation
It is much faster than traditional litigation
It is less distressing than traditional litigation
It may produce a better or fairer result than traditional litigation
It is often results in a win-win situation that benefits both parties.

Types of ADR

Parties communicate with each other and make their own
decisions. They will sign the deal as a contract and it is binding.
Where a neutral third party is chosen to help make a decision.
The mediation is not binding, but if a resolution is found and
signed, than that agreement is binding.
Where the two parties find a neutral third party to hear both
arguments and make a final and binding decision.