1. Theories of Tort Law

2. Outline
Nature of the defendant’s conduct – potential bases of liability.
Theories and functions of tort law.
Remedies.

3. Potential Bases of Liability
“No-Fault”
“Fault”
 Fault not required
 Causal link required
 Fault required
 Causal link required
Strict Liability
Absolute Liability
Negligence
Intentional
Wrongdoing
 Liability flows from
causal link alone
 No defences
Causal link + other
elements required
 Defences may lie
Causal link + lack
of reasonable care
 Defences may lie
Causal link + intent
required
 Defences may lie
Not generally applied in Canada
Few torts in Canada follow this theory
Tort law in Canada generally falls at this end of the spectrum

4. Fact Scenario Affordable car – OAC “Access”
1,000 sold when defect is discovered.
Defect could cause an explosion.
Chance of explosion: 1 in 100,000.
Cost to recall and remedy: $5,000 per car.
OAC decides not to recall the cars.
Mr. B and daughter in their Access – it explodes.
Mr. B killed and daughter severely burned.

5. Theories of Justice (after Aristotle, Nicomachean Ethics, Book V)
Distributive Justice
Corrective Justice
 Assumes pre-existing distribution of benefits in society
Seeks to annul “wrongful” changes in distribution by restoring parties to original positions
 Governs distribution of benefits among members of society
Distribution is “just” if it reflects the relative “worth” of members of society

6. Remedies Judicial Extra-judicial damages injunctions declarations
specific restitution
Extra-judicial
lawful
unlawful

7. Contemptuous Damages Claim is technically valid.
Court disapproves of the claim and awards a very small amount of damages.
In the alternative, the court may use the cost award to demonstrate its disapproval.

8. Classification of Damages
Nominal
Compensatory
Punitive
 non-pecuniary
redress for violation
of right
generally only for torts
actionable per se
pecuniary & non-
pecuniary
redress for actual
damage
 non-pecuniary
 punish/deter/denounce
egregious conduct
 only in exceptional cases
Special
General
pecuniary
precisely calculable pre-trial losses
e.g. past loss of income, past costs
of care, out of pocket expenses, etc
pecuniary & non-pecuniary
 not precisely calculable at trial
Pecuniary
Non-pecuniary
e.g. future loss of
income
e.g. cost of future
care
e.g. pain, suffering
aggravated damages

9. Principles of Punitive Damages
Purpose – punish, deter, denounce, strip of profits.
Awarded with restraint and only if compensatory award is insufficient to achieve purpose.
Lowest award necessary to achieve purpose.

10. Disgorgement
Relief is measured by the defendant’s gain, not the plaintiff’s loss.