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So Sue Me!: Civil Disputes and Tort Law

  • You slip on your neighbour's icy steps and injure yourself.
     
  • A neighbour often burns garbage and the smell and smoke drift over to your property making it very unpleasant for you to sit outside.
     
  • You are at a public meeting and someone calls you a liar.

The purpose of this pamphlet is to provide the public with general legal information in the area of tort law. It does not contain a complete statement of the law in the area, and changes in the law may occur from time to time. Anyone who needs specific legal advice should contact his or her lawyer.

This pamphlet will look at the common types of torts known as negligence, nuisance, and defamation and outline possible courses of action. It will not deal with other torts such as those of assault and battery, false imprisonment, and trespass.

What is a tort?

A tort is a civil "wrong".

What Is Tort Law?

In our day-to-day relations we must be careful that our behaviour does not cause injury to other people or their property. Tort law sets standards for our behaviour and provides remedies if we do not meet those standards. It imposes on each member of society the duty to take reasonable care to avoid causing harm to others. It provides legal recourse to those who suffer harm as a result of the breach of this duty.

A person who has suffered such harm may have the right to obtain compensation for the injury in a civil action. A civil action is a legal proceeding in court that resolves disputes between people. To get compensation, a person who has suffered harm must show that he or she was owed a duty of care, that the duty of care was breached, and that harm or injury occurred as a result of that breach.

Is a tort a crime?

A tort and a crime are not the same thing. However, some torts that can lead to a civil action also may result in charges being laid. For example, when someone deliberately injures another person, as in the case of assault and battery, criminal charges may be laid under the Criminal Code of Canada. The injured person also may seek monetary compensation in a private civil action. The intent of the criminal action is to punish the wrongdoer while the intent of the civil action is to compensate the injured person.

What Kinds of Situations Does Tort Law Deal With?

Tort law deals with the many situations in which people suffer harm or injury to themselves or their property because of the actions or negligence of another person. The purpose of tort law is to decide if anyone is at fault, determine the extent of the injury and provide a remedy such as ordering the wrongdoer to pay a monetary compensation to the injured person.

For example, a person's actions may cause injury to others through negligence, the committing of a nuisance, or the damaging of another's reputation by libel or slander. This pamphlet considers each of these as types of torts.

What Is The Tort Of Negligence?

The law of negligence requires that we act reasonably toward other people and their property. The standard that we must meet is that of the reasonable person in the same circumstances. This means that we must take reasonable care to avoid causing injury to people or their property.

For example, the law of negligence requires that a homeowner take reasonable care to make sure that persons visiting her or his home are not injured. If a visitor slips on icy steps and is injured, the homeowner may be liable in negligence. Although the visitor may have suffered a tort the homeowner has not committed an offence. If a court finds the homeowner negligent, then he or she may be ordered to compensate the injured visitor.

To be entitled to compensation the injured person must show that the homeowner did not meet the standard of care owed to the visitor and that the injury resulted from that failure.

What Is The Tort Of Nuisance?

The tort of nuisance happens when someone unreasonably interferes with or disrupts the use and enjoyment of your property.

For example, such things as loud noise, smoke, odours, or water coming from a neighbour's yard may be a nuisance if it disturbs the use and enjoyment of your property. The nuisance must, however, be serious or continuing. The minor problems that often occur between neighbours are usually not nuisances for which legal remedies are provided.

The common remedies for nuisance are monetary compensation and/or a court order to stop the nuisance from happening again (injunction).

What Is The Tort Of Defamation?

The tort of defamation happens when someone deliberately or negligently makes a false statement about you in public which lowers or injures your reputation in the community. There are two types of defamation. "Libel" includes printed, written, filmed or recorded statements. "Slander" happens when the defamatory statement is spoken.

Defamation is a tort because someone's good name and status in the community are injured. For example, if someone calls you a liar in public or accuses you of committing a crime, then you may be able to sue that person for defamation. The statement, however, must be false.

A statement may be defamatory if it falsely suggests that you are guilty of any crime, dishonesty, or dishonourable conduct. Insults or belittling statements are not defamatory.

If the court finds that someone has made a defamatory statement about you, then that person may have to pay monetary compensation to you.

What Can I Do If Any Of These Things Happen To Me?

If any of these things happen to you, there are a number of things that you can do. Remember that there are various limitation periods attached to different kinds of tort actions. If you start an action after the deadline has passed you may be too late to seek a remedy. It is important to get legal advice about your rights, limitation periods, possible remedies, and courses of action. You may find that several courses of action are open to you.

Do nothing. You may decide that the injury suffered is not serious enough to bother about, or that there are other reasons for not doing anything about it.

Settle out of court. Many tort actions are settled out of court by the people involved in the matter who agree on the amount of compensation. This can save time and money. Courts should be used only after other attempts to settle a matter have failed.

Small Claims. If the amount of compensation you are claiming is $12,500.00 or less, or you give up that part of your claim over $12,500, then you can begin a small claims action. A small claims action is a quick and inexpensive way of resolving some disputes. (See the PLEIS-NB booklet entitled Small Claims.)

If you are claiming more than $12,500.00 and you cannot settle out of court, then you can start a civil action.

Note: Where a claim involves a matter to which your insurance would apply, you should contact your insurer immediately. Also, in order to avoid personal liability for amounts necessary to reimburse Medicare, you must include them on your claim.

Who Can Start A Civil Action?

Generally, any adult can start a civil action. If you are under 19, you can ask an adult to start the action for you.

The person who starts a civil action is the plaintiff. The person being sued is the defendant.

What Is A Civil Action?

Civil actions are legal proceedings, such as tort actions, that deal with disputes between two or more persons. A civil action does not seek to punish a wrongdoer but to establish legal liability and determine compensation. Civil actions are heard in The Court of Queen's Bench of New Brunswick.

The technical aspects of tort actions usually make legal advice and representation necessary. Small claims actions, however, are often presented by the plaintiff without legal representation.

The purpose of a civil action is to allow both the plaintiff and defendant to present evidence to the judge. The judge will apply the rules of law and decide whether there is any liability and the amount of compensation.

Before the case is heard, the plaintiff and defendant may go through a process called "discovery". This involves taking evidence under oath from the witnesses so both sides can find out what evidence will be presented at the trial and look at any documents involved in the case. After hearing the evidence at the discovery the plaintiff and defendant may agree to settle out of court.

If the case goes to trial, the judge may require the person who is found liable to pay some of the costs (court costs and lawyer's fees) of the other person. Such costs will not cover all of the legal costs incurred. They will, however, be given in addition to any monetary compensation or other remedy that the court may award.

What If A Civil Action Is Started Against Me?

If someone starts a civil action against you, you should get legal advice. You can then decide if you want to settle out of court or defend the action at trial. You must file your defense within the time limitation permitted, so you should act quickly. If you are trying to settle out of court with the plaintiff you should get a written agreement allowing you not to file a defense. If you do nothing at all, the plaintiff may get a judgment against you by default. Be sure to check if you have any insurance available to cover the claim and let your insurers know immediately.

What Types Of Defences Are Available?

The types of defences available depend on the type of civil action that is started.

What If I Am Being Sued For Negligence?

You may have a defence if you are sued for negligence. For example, if your neighbour is suing you after slipping and being injured on your steps, you may not be liable. You may argue that your neighbour's actions were negligent and contributed to the injury ("contributory negligence"). Or you may argue that your neighbour accepted the risks of your conduct ("voluntary assumption of risk"). You may also argue that the injury was the result of an unavoidable accident. It is also a defence to show that the injury was a "freak" and not reasonably foreseeable.

What If I Am Being Sued For Nuisance?

You may have a defence if you are sued for nuisance. If you can prove that the nuisance has been in existence for 20 years or more, then it is possible to avoid liability. Another defence might be that a law allows a nuisance to exist. For example, the law may prevent a nuisance action from being taken against certain agricultural and industrial operations.

What If I Am Being Sued For Defamation?

You may have a defence if you are sued for defamation. For example, a statement is not defamatory if it is true. As well, a fair comment or criticism about the government, the arts, sports, or any other subject of public interest will not be defamatory. The comment must however be fair and not intended to injure the person. For example, if you don't like a stage play, then you may say so. Also, there are situations where a person can speak without fear of a defamation action. For example, members of Parliament and the legislatures, and officers of the court and witnesses at a trial, cannot be sued for what they say in those places.

If The Plaintiff Is Awarded Compensation, How Is The Amount Decided?

The court will award damages when a tort action is successful. The person at fault will have to compensate the injured person. When general damages are awarded, the amount of compensation is calculated according to what has been awarded in previous similar cases. The court can consider such factors as hospital costs, transportation costs, and lost wages, among others. The successful person also may be entitled to interest at a legal rate. General damages may be awarded for pain and suffering and mental or emotional distress.

Can Decisions Be appealed?

Decisions of the Court of Queen's Bench may be appealed by either side to The Court of Appeal of New Brunswick. A decision must be appealed within the time permitted and may be appealed only if it contains an error of law.

Can I be held Responsible For My Children's Actions?

Parents are responsible for supervising their young children. A parent must take reasonable care that his or her child does not cause harm or damage to others. If you do not take reasonable care and your child does something to harm another person, then you or the person supervising your child, could be held liable.

Generally, young people over 6 years of age are responsible in law for any negligent and deliberate damage they cause. A civil action could be brought against them. However, people under 19 years need to have an adult represent them in court, sign legal documents and hire a lawyer. They can appear in court to give evidence on their own behalf. When deciding whether a young person is liable, the court asks whether that person acted properly for his or her age, maturity and experience. If the child did not act according to that standard, then he or she could be found liable.

How Can I Protect Against A Civil Action?

Many people buy insurance to protect themselves in case they are liable to pay damages in a tort action. For example, car drivers must carry liability insurance, homeowners carry household or property insurance, and doctors and lawyers carry professional liability insurance. These types of insurance provide financial protection in tort actions.
 

Public Legal Education and Information Service of New Brunswick is a non-profit organization. Its goal is to provide New Brunswickers with information about the law. PLEIS-NB receives funding and in-kind support from the Department of Justice Canada, the New Brunswick Law Foundation, and the Department of Justice of New Brunswick.

This pamphlet is intended for general information only. It does not contain a complete statement of the law in the area and laws change from time to time. Anyone requiring advice about his or her specific legal situation should contact a lawyer. We gratefully acknowledge the in-put and assistance of the the Legal Services Branch, Department of Justice of New Brunswick; the University of New Brunswick Law School; and, members of the Law Society of New Brunswick.

Published by:
PLEIS-NB
P.O. Box 6000
Fredericton, N.B. E3B 5H1
CANADA
Tel: (506) 453-5369
Fax: (506) 462-5193
Email:
pleisnb@web.ca
May 2004
ISBN 1-55048-978-X

 

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Disclaimer: Please note that our website contains general information about the law. This is not a complete statement of the law on particular topics. We try to update our publications often, but laws change frequently so it is important for you to check to make sure the information is up to date.  The information in our publications is not a substitute for legal advice. To receive legal advice about your specific situation, you need to speak to a lawyer.