Download LS101-Week 6 Textbook Notes

CHAPTER 3: THE ORGANIZATION OF LAW (pp.80-88)
CIVIL PROCEEDINGS
Crimes versus Torts
 Crime: a public wrong, and offence that has been committed against the public interest.
 Specific Deterrence: deter a specific offender from committing further crimes
 General Deterrence: deter members of the general public from committing offences by
“making an example” of the specific deterrence
 The court must determine that the person responsible for the crime is beyond a reasonable
doubt
o The accused must have an evil intent (mens rea) when the evil act (actus rea) was
committed
 Tort: is a wrong committed against the private interest of an individual, corporation, or
government. May be intentional, or due to negligence.
 It is up to the wronged (the plaintiff) to file an action in court so the wrongdoer can be
punished
 A lower standard of who is probably responsible is used to determine who is at fault
 It is enough to show that the defendant’s actions (whether intended or not) caused harm
History of Tort Law
 There are no specific ways for the law of torts to be administered. The society continue to
develop and add to the common law of torts
 Sometimes the threat of publicity from a tort action is enough to make corporations or
governments address the problems
The Functions of Tort Law
1. Compensation: serves to compensate injured parties. Money is rewarded for their loss.
a. Special damages: when the losses are easily calculated. (e.g. loss of wages)
b. General damages: when the cost cannot be precisely calculated. (E.g. the cost of
pain from an injury)
c. Occasionally, also punitive damages to punish the wrongdoers
2. Deterrence: prevent intentional or negligent acts in the future.
3. Education: teaches about appropriate standards of conduct in society. (E.g. whether a
person need to salt their driveway)
4. Psychological function: satisfying the thirst for revenge by those who have been wronged
5. Market deterrence: by making activities that are accident prone more expensive, tort law
deters individuals from engaging in these activities, decreasing the likelihood of injuries.
(E.g. lesser pools with diving boards in USA)
6. Ombudsman: can put pressure upon those in power to address individual and collective
wrongs. (e.g. implant companies now has to get a safer breast implant for an injured
customer)
Intentional Torts versus Negligence
 Intentional torts are actions taken by an individual or organization that are deliberately
meant to cause harm
 Negligence are actions that cause an unintentional harm because a person or organization
has failed to take reasonable precautions to ensure that their actions do not endanger others
Intentional Torts
 Wrongdoer intended for some harm to occur
o E.g. assault, battery, intentional infliction of mental suffering, false imprisonment,
trespass, nuisance, defamation, and an invasion of privacy
o Assault is something that makes the victim fear imminent physical contact
o Battery is an successful assault in some form of physical contact
o Trespass is when a person intentionally goes on to another person’s land without
justification or right
o False Imprisonment is when a person is being held against their will for a period of
time
 Defences typically used to counter claims for damages in intentional torts include: consent,
self-defence, defence of property, necessity, and legal authority
o Defence of necessity is when it is necessary to perform certain actions for some
reason
o Defence of self-defence is when a person act in self-defence to some action
o Defence of consent is when the wronged or injured party consented to be part of an
activity that they knew could result in an injury
o Defence of property is when the owner of a property is allowed to take reasonable
measures to deter others from entering the property without permission
o Defence of legal authority is based on the rights of police officers and other law
enforcement officials to detain persons, make arrests, or use force against a person
Negligence
 For negligence claim to hold, the plaintiff need to prove each of the 5 core elements:
o Negligent act: when the defendant did not do the steps a reasonable person would
do in such situation or did not foreseen the harm of their action.
o Causation: the “but for” test is passed. Could the plaintiff’s damage have occurred
“but for” the defendant’s negligent act?
o Damage: the plaintiff must have suffered recognizable damage and prove them in
court. The court will award the plaintiff to restore them to the condition before the
harmful act
o Duty of care: we owe a duty to those who live around us and to make sure we do
not cause them harm.
o Remoteness of damage: is the extent to which the negligent act can reasonably be
linked to the damages claimed.
 “Thin skull rule” is when there has been a proven negligent act, then the defendant is liable
for all the injuries to follow
 Defence to negligence claims include accident, voluntary assumption of risk, illegality, and
contributory negligence
o Contributory negligence is when the act contributed to the injury but there are other
major causes for the injury
o Accident is when the injury is not caused by something that’s unforeseeable
o Illegality is when the injury is a result of their involvement in an illegal activity.
o Voluntary assumption of risk is when a person knew of the risk of an activity and
still participated in it and got injured
CHAPTER 6: LAW AND DISPUTE RESOLUTION (pp.195-200)
DISPUTES BETWEEN INDIVIDUALS
 Court decision do not solve the underlying conditions for the conflict

Two types of individual disputes
o Economic disputes: e.g. claims associated with wills, trusts, landlord-tenant
 Directly involve a conflict over the control of economic resources
o Non-economic disputes: slander and libel, custody cases
 May involve money but that’s not the source of conflict
 Courts often encourage disputants to settle by agreement so it’s less costly
 People who want to maintain an ongoing relationship do not go to court
 Although, disputes do not stem only from people wishing to end an relationship
 Reasons for litigations vary. (e.g. divorce, argue of property rights, inheritance)
 Judges need to be impartial in deciding a case and give both parties the same opportunity.
The judge must remain neutral with regard to both the issues of the case and its result
o So we need to examine the outcomes of similar situations to see if there are equally
favorable results
o But court outcomes may be influenced by the law itself favoring one type of litigant
o The type of lawyer may also influence court decisions
o We can use these factors to predict the outcomes of individual disputes
DISPUTES BETWEEN INDIVIDUALS AND ORGANIZATIONS
Four general categories of disputes (not mutually exclusive):
1. Disputes over property and money (economic disputes)
a. Plantiff: Organizations
2. Claims for damages and restitution
a. Defendant: Organizations
3. Issues of civil rights
a. Defendant: Organizations
4. Disputes concerning organizational actions, procedures, and policy
a. Defendant: Organizations
 Usually, organizations would win more against individuals than organization against
organizations
 Individuals vs individual wins more than individual vs organization
 The likelihood of a lawsuit by a group against an individual increases with its organization.
The likelihood of a lawsuit by an individual against a group decreases with the organization
of the group