Glossary

Author:Philip H. Osborne
Profession:Faculty of Law. The University of Manitoba
Pages:459-467
 
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Page 459

Abatement: A self-help remedy to remove a nuisance from which the abator suffers.

Abuse of process: The use of civil process in furtherance of an improper motive.

Accident: An unexpected or untoward event that causes injury to another, or conduct that no reasonable person would foresee as creating a risk of injury to others.

Act of God: An extraordinary natural phenomenon that is beyond the foresight of a reasonable person and could not therefore be guarded against.

Actio per quod consortium amisit: A Latin expression for a common law action originally available only to a husband (now extended to wives) for the loss of personal and domestic services arising from an injury caused by the tortfeasor to a spouse.

Actio per quod servitium amisit: A Latin expression for a common law action brought by an employer for the loss of services of an employee injured by a tortfeasor.

Action: See cause of action.

Action on the case: A cause of action originating from the writ of trespass on the case. A feature of the writ was that the circumstances of the case were set out in it. Trespass on the case evolved into a number

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of nominate and innominate torts that are characterized by the need to prove fault and damage.

Actionable per se : An expression indicating that a tort is complete without proof of damage. It is applicable to the torts of trespass.

Assault: An intentional act causing another reasonably to anticipate immediate harmful or offensive bodily contact. Also used loosely to refer to the intentional injury of a person.

Bailment: A delivery of goods by one person (the bailor) to another (the bailee) for some purpose after which the goods are to be returned to the bailor.

Balance of probabilities: A standard of proof satisfying a judge or jury that the facts at issue probably occurred as alleged. Sometimes referred to as a preponderance of the evidence or a 51 percent likelihood of occurrence.

Battery: The intentional and direct interference with the body of another that is either harmful or offensive.

Burden of proof: The obligation to produce evidence to prove facts necessary to establish a cause of action or a defence. It normally rests on the person who asserts a particular matter.

Cause of action: A factual situation, the existence of which entitles a person to bring legal proceedings against another person and secure a remedy.

Cause-in-fact: The factual link between one person’s actions and another person’s damage.

Charterparty: A contract under which an owner leases a ship to another (the charterer) for the carriage of goods.

Chattels: All movable property; goods.

Class action: An action brought by one person as a representative of many persons with similar claims.

Confidentiality: An obligation to keep information secret.

Conspiracy: An agreement by two or more persons to carry out legal acts, the predominant purpose of which is to injure the plaintiff, or an agreement by two or more persons to injure another by illegal acts.

Continuing trespass: A trespass to land by wrongfully leaving or placing a chattel on the land of another. It gives rise to daily actions in trespass to land until the chattel is removed.

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Contribution: A principle applicable where two or more defendants are jointly and severally liable. When the judgment is paid by one of the defendants, reimbursement (contribution) may be sought from the other defendant(s) in an amount proportionate to his (their) responsibility.

Contributory negligence: The failure of a plaintiff to take care for her own safety which contributes to her loss.

Conversion: The intentional interference with the right of another to a chattel which is of sufficient seriousness to require the interferer to pay for the chattel.

Damages

· Compensatory: A monetary remedy designed to restore the plaintiff to the position he would have been in but for the tortfeasor’s conduct.

· Aggravated: A monetary remedy designed to compensate for the humiliation, distress, or embarrassment resulting from the tortfeasor’s vicious, malicious, or shocking conduct.

· Punitive (exemplary): A monetary remedy in addition to compensatory damages designed to punish the tortfeasor for his malicious, high- handed, or outrageous conduct.

· Contemptuous (derisory): A monetary remedy in the smallest denomination to indicate that a tort has been technically committed but, in the...

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