FUNDAMENTALS OF TORTS

Assignment 1
MODULE ONE: FUNDAMENTALS OF TORTS
Question One
Distinguish between libel, slander, defamation, trade slander and deceit, indicating in what
situations each would apply and the significance of the distinction.
Question Two
Imprisonment can take the form of confinement, arrest, or submission to authority. Explain the
differences and determine what is necessary to sue for false imprisonment.
Question Three
Distinguish between assault and battery. Discuss the right of self-defence with regards to assault
and battery. Discuss how doctors avoid liability when they operate on or otherwise treat
patients.
Question Four
“‘— What are the necessary elements that must be present for a person to be classified as a
trespasser? Consider the context of a homeowner with unruly guests, or a business with unruly
patrons. Apply the Trespass to Property Act in your answer.
Question Five
Explain, with reference to decided cases, what a person must do to establish negligence. Expand
on the tests which may be applied and discuss what remedies and defences are available. How
does negligence relate to professional liability?
MODULE Two: FORMATION OF CONTRACTS
Question Six
List and explain the elements that are required for an agreement to be a contract. In your answer,
consider void and voidable contracts, formal and parol contracts, unenforceable and illegal
contracts, implied terms, unilateral contracts, gratuitous promise, seals, offer, acceptance, and
consideration.
COMM 4716EL 10 Assignment File PageS
Question Seven
Explain the circumstances in which a minor, mental incompetent, or drunk person may escape
liability for a contract and the circumstances in which they or their guardian may be bound or
become bound by the contract.
Question Eight
Discuss in detail the requirement of writing, including reference to decided cases, statutes and
the common law.
Question Nine
Discuss the concept of ‘intention to be bound’, in the nature of commercial and non-commercial
contracts, having regard to the necessity of writing, how the courts view agreements and the tests
used to determine intention.
MODULE THREE: INTERPRETATION OF CONTRACTS
Question Ten
Explain the types of mistake and the types of misrepresentation which can give rise to a court
“-/ being required to interpret a contract. What remedies are appropriate to each type?
Question Eleven
Distinguish among duress, undue influence, and unconscionability and give two examples of
each. Describe the remedies available for each type.
Question Twelve
Describe the types of assignments which may occur. Give two examples of each. Consider what
requirements are necessary to make an enforceable assignment.
Case One
Campbell, an antique store owner, had an 1867 ornate Victorian desk purported to have been
owned by Sir John A. Macdonald. Campbell put the following ad in the newspaper: “1867 ornate
Victorian desk purported to have been owned by Sir John A. Macdonald in very good shape,
$25,000,” along with his store address and phone number. Gibson, a regular customer of
. Campbell, saw the ad and went to Campbell’s store to see the desk. The desk was not on the
regular sale floor but being held in the back room. After some discussion Gibson said that he
would pay $20,000 for it, but Campbell said it was not enough. Campbell said that he would sell
it for $24,000 but not anything less. He would allow Gibson time to arrange financing since this
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was such an expensive desk. Gibson said that he would have to think about it. Accordingly,
Campbell wrote on a sheet of paper as follows: “I, R. Campbell, agree to sell to M. Gibson my
1867 Sir John A. Macdonald Victorian desk for $24,000, usual financing terms apply. In
exchange for Mr. Gibson’s promise to give this offer due consideration, I agree to hold the offer
open until Friday noon, September 24.” (signed) R. Campbell (dated) Monday, July 1st.
Gibson took this document home with him. On Tuesday morning Campbell was offered $25,000
for the desk by McKay, which he accepted. He immediately wrote Gibson a letter revoking the
offer. In the meantime, Gibson had already decided to accept the offer and sent Campbell a letter
to that effect on Monday evening. This letter was addressed to Campbell and stated, “After due
consideration of your offer to sell me your 1867 Sir John A.Macdonald Victorian desk, I hereby
accept, delivery to be at my home Friday, July 5th at 5:00 pm:” (signed) J. Gibson, (dated)
July Ist. Gibson received the letter of revocation on Wednesday morning. Campbell received the
letter ofacceptance on Thursday afternoon.
McKay was an undischarged bankrupt. Campbell found out about this on Thursday morning.
What this meant was that McKay could not enter a transaction without the okay of his Trustee in
Bankruptcy’s consent which was not forthcoming. Campbell phoned Gibson and told him to
ignore the letter of revocation. Gibson responded that while he had already sent his letter of
acceptance, he had changed his mind. He had lost his job after he had sent the letter of
acceptance and could no longer afford to purchase the desk. He had not even tried to find
financing as he doubted his bank would provide it given his new circumstances. Campbell
insisted that Gibson go through with the deal and hung up. Campbell received Gibson’s letter of
acceptance about three hours after this telephone call.
Campbell then put the desk in his delivery vehicle so that the next morning, Friday, he could
deliver it to Gibson, but during the night someone stole his delivery van. The van was discovered
early on the Friday morning by the police completely destroyed by fire, including the contents. In
the meantime, Gibson had discovered that he could resell the desk to the Canadian Museum of
Civilization for $30,000 and was now anticipating the delivery, since he had already agreed to
sell the desk to the museum. When the desk was not delivered, he sued Campbell for breach of
contract.
Gibson comes to you, his lawyer, asking you to explain the legal positions of all the parties. How
would you respond?
Case Two
Francis was operating his snowmobile around a cross-country ski resort area a long way from the
regular snowmobile trails. He had his thirteen-year-old son, Evan, along with him. He got
bogged down in some deep snow, so he had Evan drive the snowmobile while he worked at
freeing the tracks from the deep snow. While Francis was freeing the tracks, the snowmobile
found purchase on some crusted snow and accelerated through the bush about thirty feet from the
marked ski trail and struck George, a skier who was off trail doing a bit of “bush-whacking.”
George was not dressed in the usual colourful ski garb, but was instead wearing an old gray coat
and dark brown pants. He was very hard to see in the fading twilight. (George’s skiing
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companions had already headed back to the lodge.) George suffered a leg and ankle injury in the
collision. As soon as Francis heard the screams, he rushed to the accident area, stopped the
snowmobile, and provided aid to George. It was clear that the leg was broken. As well, by this
time George was suffering from hypothermia, frostbite and shock. Francis took George on the
snowmobile to the resort, where he was immediately taken to the local hospital.
George was admitted and examined by Dr. Foote. The doctor treated George for the broken
ankle. He did not see that the leg had also been injured below the knee where a bone protruded
from the skin. This injury became infected while George was recovering in the hospital from the
hypothermia, frostbite, and shock and it became necessary to amputate the leg. Foote was an
emergency room doctor and not a surgeon so he turned George over to Dr. Cutter, the local
surgeon, with his diagnosis of what was needed. Cutter amputated the wrong leg. When the error
was discovered, Cutter then amputated the correct leg.
George then sued Francis, the owner of the snowmobile, his son, Evan, who was driving at the
time of the accident, Dr. Foote, Dr. Cutter, and the hospital for the injuries he suffered. Explain
what torts have been committed, the arguments that can be used in defence, and the liability
which will likely be imposed on each of the parties.
Case Three
Schuster owned two volumes ofa rare edition of Chaucer’s The Canterbury Tales. One volume
was in excellent condition. The second volume was in poor shape, but nevertheless intact.
~. Schuster sold both volumes to MacPherson, a rare book merchant.
MacPherson loaned the two volumes to a local library for a rare book display. Unknown to
MacPherson only the volume in excellent condition was put on display with a collection of other
rare books. The second copy was placed in a display designed to show how rare books might be
repaired, but the book was placed in such a position that neither its title nor its contents could be
determined.
A week after the books had been returned to their owner, Holt, a collector of rare books,
telephoned MacPherson to determine if he had a copy of The Canterbury Tales for sale.
MacPherson replied that he did, but it was “not in top shape.” Holt then asked if the copy had
been on display at the library, and MacPherson said, “Yes. II
Holt informed MacPherson that she had seen the display of books at the library, and would be
interested in purchasing the volume. A price was agreed upon, and Holt sent a cheque to
MacPherson for the agreed amount.
MacPherson sent the volume that was in poor condition to Holt by courier. On its receipt, Holt
complained that the volume was not the same one on display at the library. MacPherson
. maintained that it was, and refused to return Holt’s money.
Holt brought an action against MacPherson for a return of the money that she had paid
MacPherson.
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COMM 4716EL 10 Assignment File PageS
Indicate the nature of Holt’s claim, an express an opinion as to the outcome of the case..
Case Four
Graham was a well-known and highly regarded architect. Campbell, who had come to Canada
from Scotland and was a country-man of Graham, requested that he design a classic Galloway
cottage (a type of stone building from southwest Scotland) for him to build at his retreat in
Southern Ontario in the area that reminded him of his home. Campbell was going to build it
himself as he was a building contractor and knowledgeable about building. He wanted it to be
fully compliant with all local building codes and by-laws. Graham said that he would discount
his usual rate of $200.00 per hour for the work and estimated that it would take him about one
week to produce the plans. Campbell indicated that it was important to have the plans available
within two weeks when he was returning from his vacation in a remote area of Scotland as the
building season was quite short and that all the time would be needed to finish it.. Campbell then
left on his holidays.
Campbell returned from his holidays and found that the work was complete. He was very happy
with the design and how it would look on his retreat lot. He was completely satisfied with the
work. Graham explained that, since he was away, Graham had had to proceed, knowing the time
constraints despite the difficulties that he had with the local authorities regarding what was
allowed to be built and the local interpretation of the building code, and this had entailed a great
deal of extra work. Graham detailed that he had put in more than 100 hours, working overtime
many nights, to finish the design on time and acceptable to the building authorities. Graham said
~. that he had tried to contact Campbell to discuss the difficulties but could not find him.
The final bill before the discount was $21,000, but Graham had discounted this to $14,000.
Campbell objected to this saying that he could have received a comparable plan from his regular
architect for $5,000, and offered him that sum. He also indicated that because of the lateness of
the season, that if he didn’t get the plan immediately, he would sue for the damages occasioned
by the delay in building.
Graham refused to deliver the plan unless he received payment for the $14,000 immediately and
that he would sue for the full $21,000 if he didn’t get it.
1. Assume that you are the lawyer for Graham. Advise him of his legal position and likely
success.
2. Assume that you are the lawyer for Campbell. Advise him of his legal position and likely
success.
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COMM 4716EL 10 Assignment File Page 9

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