Cassidy Thomson Torts Fall Outline Kodar

Cassidy Thomson•Torts•Fall•Outline•Kodar

Table of Contents

WRONGDOING AND RESPONSIBILITY 3

Joint Tortfeasors 3

Osborne: Joint Tortfeasors 3

Cook v. Lewis 3

Vicarious Liability 3

Osborne: Vicarious Liability 3

671122 Ontario Ltd. v. Sagaz Industries Canada Inc 3

Salmond Test 3

E.B. v. Order of the Oblates of Mary Immaculate 4

Osborne: Principal/Agent 4

Note on Hospitals and Doctors 4

Note on Parental Liability 4

Joint and Several Liability 5

Osborne: Joint and Several History 5

Negligence Act 5

Victim Contribution (Contributory Negligence) 5

Osborne: Contributory Negligence 5

Negligence Act 5

ACTIONABLE HARM: 6

Protecting Property Interests 6

Private Nuisance 6

Rylands v. Fletcher 7

Trespass 7

Public Nuisance 8

Protecting Physical Security and Integrity 9

Assault, Battery & Negligence 9

Medical Treatment 10

Malette v. Shulman, CPI 66-74 10

Battery, Negligence & Fiduciary Duties 12

Protecting Mental and Emotional Security and Integrity 13

Intentional Infliction of Mental Suffering 13

Negligence & Psychiatric Injury 13

Protecting Liberty Interests 14

False Imprisonment 14

Other Protected Interests 15

Economic Interests 15

WRONGDOING AND RESPONSIBILITY

Joint Tortfeasors

Osborne: Joint Tortfeasors, p. 61

Proof of single tort enough to make all member of group liable

Must meet requisite relationship:

1)  An instigator or encourager of the tortfeasor will be found a joint tortfeasor

2)  Employer/employee are joint tortfeasors when the tort is committed within the scope of employment

3)  Principal/Agent are joint tortfeasors when the act is committed within the agent’s actual or apparent authority

4)  Guilt by participation: when the tort is committed to further a group goal or aim. This does not apply if the acts are considered independent parallel acts

Cook v. Lewis, CPI 1-3

Key Facts: group of hunters, shoot Ptf accidentally, not clear which hunter actually shot the Ptf

Issue: are they joint tortfeasors?

Held: no

Rsns: can’t say guilt by participation, b/c then anytime anybody did anything in a group they would be responsible for the other. Unworkable, floodgates.

Ratio: Acts that are considered independent yet parallel negates the requisite relationship for joint tortfeasors.

Vicarious Liability

Osborne: Vicarious Liability, pp. 361-69

·  Strict liability- not necessary to prove fault

·  Must be requisite relationship (often employer/employee or principal/agent)

·  To provide just remedy and for future deterrence (employer will implement policies to reduce their risk)

1.  Requisite relationship

2.  Prove ‘in course’ of employment

671122 Ontario Ltd. v. Sagaz Industries Canada Inc, CPI 4-12

1)  Determine Requisite Relationship- employee or independent contractor?

a)  who controls how the work is done

b)  the opportunity for profit or risk

c)  the relative autonomy between the parties

d)  the ownership of tools.

e)  *non exhaustive list* depends on situation

Salmond Test

2)  Determine if ‘in course’ of employment

a)  employee acts authorized by the employer

b)  unauthorized acts so connected with authorized acts that they may be regarded as modes (albeit improper modes) of doing an authorized act.”

E.B. v. Order of the Oblates of Mary Immaculate CPI 13-27

2) Determine if ‘in course’ of employment for SEXUAL ASSAULT

Bazley Test

1)  is there clear precedent? If not, consider following factors ‘strong connection test’

a)  the opportunity that the enterprise afforded the employee to abuse his or her power

b)  the extent to which the wrongful act may have furthered the employer’s aims

c)  the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise

d)  the extent of power conferred on the employee in relation to the victim

e)  the vulnerability of potential victims to wrongful exercise of the employee’s power.

2)  Should liability be imposed for policy reasons?

E.B. Oblates applies Bazley test and NARROWS it:

à focused on tasks assigned to defendant, not the context

·  Allows findings of question 1 to outweigh/negate question2

·  Claimed trial judge did not make ‘findings of fact’ b/c language not clear enough (criticism of the dissent)

Osborne: Principal/Agent, pp. 369-75

The principal can be held vicariously liable for the acts of the agent if the acts occur within the scope of actual or apparent authority.

Note on Hospitals and Doctors, CPI 28-29

The hospital is liable for employees but not those with ‘hospital privileges’, but this question is still open for discussion.

Note on Parental Liability, CPI 30

At common-law, parents are not held vicariously liable for the actions of their children. However, in BC legislation now overrides the common-law and requires parents to be liable up to $10,000 for intentional damage caused by their children. Under this legislation, parents are presumed liable unless they can prove that they exercised reasonable supervision and made a reasonable effort to prevent the damage. Interestingly, a parent has yet to be held liable under this legislation.

Joint and Several Liability

Osborne: Joint and Several History, pp. 61, 64-65

Historically, if multiple independent tortfeasors contributed to a victim’s harm, the court would apportion a percentage of fault to each defendant and the plaintiff would be required to collect the apportioned amount from each defendant individually. This would often prevent a plaintiff from receiving full damages because one or more defendant may be judgment proof, that is unable to pay damages due to insolvency or lack of assets etc.

Negligence Act, RSBC 1996, c 333, s 4, CPI 31

Thus the government developed legislation to remedy this problem in the Negligence Act of BC. The Negligence Act in section four sets out the terms of joint and several liability, in which a plaintiff can collect the whole amount of damages from one defendant regardless of the amount apportioned to that defendant. It then becomes the defendant’s job to recover for themselves the amounts apportioned to the other tortfeasors. While fault still needs to be established for each individual tortfeasor, it is in the plaintiff’s best interest to sue all potential tortfeasors to maximize their chance of the judgment being paid. A plaintiff cannot ‘double recover’ meaning that once the full amount of damages has been paid, they cannot recover more from the next tortfeasor. However a plaintiff can bring action against potential tortfeasors not included in the original action, although the amount of damages cannot be increased in this second action.

Victim Contribution (Contributory Negligence)

Osborne: Contributory Negligence pp. 108-112

Contributory negligence occurs when the victim of a tort has failed to take reasonable care and contributed to their own harm.

1)  if the negligence of the plaintiff caused the accident.

2)  if the plaintiff entered into a situation despite foreseeable harm from the defendant’s negligence.

3)  if the plaintiff failed to take safety precautions despite foreseeable harm i.e. wearing a seatbelt.

à An objective standard is used to measure the plaintiff’s actions including the foreseeability of harm, the likelihood of damage, the cost of precautions, the exigencies of emergency situations and the utility of conduct.

àHistorically contributory negligence was a complete defence, but recognizing the unjust nature of that when the plaintiff’s contribution was relatively minor, the common-law developed the ‘last clear chance’ test. This test required that the person who was deemed to have the last clear chance of avoiding the accident to be held 100% liable.

Negligence Act, RSBC 1996, c 333, ss 1, 2, 8, CPI 32

·  S.8 last clear chance rule no longer applies

·  S.4(2)(a) If CN is found, there can be no joint and several liability

·  S.1(1) requires the court to apportion fault and reduce damages by the percentage the victim is said to have contributed.

·  S.1(2) if it is not possible to apportion fault, it is split 50/50.

ACTIONABLE HARM:

Protecting Property Interests

Smith v. Inco – Facts, CPI 33-38

Cassidy Thomson Fall 2012

·  Nickel Levels in the Soil

·  Presence of Inco plant

·  Dates of operation

·  Complied with regulations

·  Industrial neighbourhood

·  Public perception of health

·  No damage to property or heath, just reputation

·  Indirect

·  Property value post 2000 down in comparison to other cities

Cassidy Thomson Fall 2012

Private Nuisance

Osborne pp. 377-97

Interference with use, enjoyment or comfort in land, must be ‘unreasonable’: need to prove damage, relies on nature/extent of interference NOT intention

1)  Physical

a)  Almost always considered unreasonable interference

b)  Doesn’t have to be continual

c)  Proof of physical damage not conclusive

d)  No liability arises from unique or sensitive needs of Ptf, unless Def knows about it

2)  Indirect, intangible physical interference and direct interference that is not physical

·  Noise, odor, fumes, dust, smoke

To determine if “unreasonable”:

i)  Character of neighbourhood

ii)  Intensity of interference

iii)  Duration

iv)  Time (of day or week)

v)  Zoning (compliance with zoning not a defence, but illegal activity likely to favour Ptf)

vi)  Utility of Def. conduct (things society needs less likely to be interference)

vii) Sensitivity of Ptf (no liability if abnormally sensitive)

viii)  NO liability for blocking view/sunlight, aesthetics

Remedies

a)  Injunction- most popular

b)  Damages- when nuisance has terminated or in lieu of injunction then future/past losses covered

c)  Abatement- self-help remedy, not popular

Smith v. Inco, CPI 39-47

KEY FACTS: ptf’s claimed physical damage

ISSUE: Did Inco cause physical damage to Ptf’s land

HELD: No

RSNS: B/c physical damage don’t have to consider any factors, just need to prove that the damage was

Physical Damage- TEST

1.  Material- more than trivial

2.  Actual- has occurred, not just may occur

3.  Ascertainable- can be observed and measured

Ptf’s here failed to show damage was material. Change in soil doesn’t constitute damage b/c there is no harm. Change in soil didn’t cause the harm, public opinion/rumour did.

RATIO: A private nuisance claim in physical damage must show that the ‘action’ in question caused the damage and that the damage was material, actual and ascertainable.

Rylands v. Fletcher

Osborne, pp. 341-53

R v. F TEST: Quite narrow rule now.

A.  Non-natural use of land

·  Meaning has changed to mean something: dangerous, extraordinary, special, not good for community

B.  Escape of something likely to cause mischief

·  Rarely requires separate analysis b/c now usually dealing with something dangerous so obvious.

C.  Damage

·  Have to prove, can be to person or property. Perhaps need to show foreseeability.

Defences

A.  Consent of Ptf

·  Mutual benefit (utility of def’s land use, ie. Municipal sewer—can prove consent)

B.  Default of Ptf (CN complete bar to action)

C.  Act of stranger/God- unforeseeability, could not have been guarded against

D.  Statutory Authority- in this case def. must prove damage was inevitable.

Smith v. Inco, CPI 48-57

ISSUE: Is inco liable to Ptf’s under the rule from R v F?

HELD: No

RSNS: Court does not accept that it is a non-natural use of land. R v. F shouldn’t be expanded to include all extra-hazardous activity as this is Parliaments job if they want that policy. “non-natural” is best understood as “not ordinary” and this case fails step one.

FACTORS to consider in STEP ONE of R v. F-

Cassidy Thomson Fall 2012

1.  Character of neighbourhood

2.  Compliance with rules and regulations

Cassidy Thomson Fall 2012

RATIO: R v. F rule only applicable to situations where there is accidental or non-intentional escape= misfortune. Should not be automatically applied to extra-hazardous activities. A “non-natural” use of land in step one is best understood as “not ordinary”

OBITER: Objective foreseeability of damages if escape occurred may be necessary. Can’t impose strict liability for an activity carried out in reasonable manner in accordance with law.

Trespass

Osborne, pp. 294-305

Requirements:

1.  Intentionally or negligently- don’t have to intend harm, just intending to do the action that caused harm.

2.  Actionable without damage- No actual damage needed, fact that trespass happened is enough.

3.  Direct Action- Def’s actions create a risk/danger that materializes in the trespass—if there is an interveneing act, it is indirect and can only be brought in negligence.

Defences:

1.  Def has to prove they didn’t intentionally or negligently interefere—i.e. ptf consented

2.  OR trespass didn’t happen

Smith v. Inco, CPI 58-59

ISSUE: Should trespass action be allowed?

HELD: no

RSNS: trespass requires direct action. Inco did not directly put the nickel in the soil, the wind was an intervener.

RATIO: simply permitting a substance to enter the air which then is deposited on another’s land is not enough to be considered direct action

Public Nuisance

Osborne: Public Nuisance, 397-402

·  Interferes with the public exercise of common rights

Smith v. Inco CPI 60

ISSUE: Is Inco liable for Public Nuisance?

HELD: No

RSNS: whole case is based squarely on individual property rights

RATIO: public nuisance cannot be brought for matters that only effect private property rights.

Protecting Physical Security and Integrity

Assault, Battery & Negligence

·  Assault and Battery are TRESPASS torts

·  Actionable w/o harm, has to be direct and intentional or negligent

·  NOT direct if there is an intervening agent, an intervening agent has AGENCY (change it, do something)

·  Ex. if A pushes B and B falls into C: A has intentionally battered B and negligently battered C

·  Responsible for all the harm that flows from actions- no remoteness or foreseeability

·  Def. has to prove that either it didn’t happen, or that Ptf consented (i.e. wasn’t intentional or negligent) OR could argue that it was necessary for self-defense or defense of others, or for emergency circumstances

Trindade, “Intentional Torts: Some Thoughts on Assault and Battery,” pp 229-37 WEB

Assault:

·  Immediate threat of a battery

·  Ptf must have reasonable apprehension of an imminent or immediate battery

·  Def just has to appear to have ability to carry out battery, not necessary for them to actually be able to

·  Usually only brought up in defense of a battery

Battery:

·  Direct, offensive physical contact (not trivial)

·  Purpose is to protect bodily integrity, autonomy, dignity

·  Negligent battery is unique to Canada