TORTS FINAL EXAM OUTLINE

TORT LAW: BACKGROUND AND THEORIES

TRESPASS TORTS

Assault

False Imprisonment

Battery

Sexual Battery

Wrongful Infliction of Mental Suffering

VICARIOUS LIABILITY

Hospital Liability

Parental Liability

DUTY OF CARE

Origins of the Duty of Care

Doctor’s Duty to Warn

Manufacturer’s Duty to Warn

Duty to Rescuers

STANDARD OF CARE

CAUSATION

REMOTENESS

Psychiatric Harm and Remoteness

Pure Economic Loss

Negligent Misrepresentations

Concurrent Liability in Contract and Tort

Negligent Provision of a Service

Negligent Supply of Dangerous Products

New Duties Relating to Economic Loss?

The Tort Liability of Government

The Immunity of Expectant Mothers

DEFENSES

JOINT TORTFEASORS

Strict Liability

Nuisance

TORT LAW: BACKGROUND AND THEORIES

Crim vs. Tort

In criminal law, guilt is proven beyond a reasonable doubt, there is a focus on punishment rather than monetary compensation, crimes are viewed as being against the state, and therefore the state needs to prosecute, fines go to the state, motivating factor is punishment or deterrence, punishment is related to the degree of the fault

In tort, liability is proven on a BoP, remedies can be monetary,there is a focus on compensation for the fault

Section 11 of the Criminal Code: No tort proceeding is affected based on whether something is being done in the criminal court. The criminal conviction can be brought in as evidence in a tort proceeding, but not the other way around because of the burden of proof. The finding of guilt is different than the finding of liability.

Advantages of a civil action: Lower standard of proof, victim gets to be more involved, opportunity for compensation, deterrent effect, psychological function. Disadvantages: defendant may be judgment-proof, action may be costly

Contract vs. Tort

Contract involves a pre-existing agreement or relationship. Only parties of the contract can sue, whereas an action in tort can be pursued regardless of a preexisting relationship. In tort, the obligations are imposed by the law, not by an agreement.

Equity vs. Tort: Tort doesn’t cover the civil wrongs that fall under equity, such as a breach of a trust or breach of fiduciary duty. Tort falls under the common law.

**BC Limitation Act**

  • P usually has 2 years from the date of discovery to bring a tort action. 6 years for anything not named (i.e. fiduciary duty). Discoverability principle applies to sexual assault (M(K) v M(H)
  • Discoverability rule:“a cause of action arises for the purpose of a limitation period when the material facts on which it is based have been discovered or ought to have been discovered by P by the exercise of reasonable diligence” (Rafuse)
  • The onus is on D to raise the defense of the limitation period. The court will not impose this defense unilaterally.
  • Rationale: Prior to when you realize, you wouldn’t have any damages, so you wouldn’t be able to bring an action.
  • Actions must still be brought within the ultimate limitation period of 30 years (s.8(1)).
  • The ultimate limitation period does not applyto the offenses listed in s.3(4) such as sexual battery
  • Unlawful sterilization is considered sexual battery, so no ultimate limitation period (DE v. BC)
  • Rationale for limitation periods: certainty, diligence, and evidentiary.

TRESPASS TORTS

Fault requirement

Can be intentional or negligent*

  • Constructive/imputed intent: when it is substantially certain that the defendant would injure someone (even though it is not directed at any specific person)
  • Transferred intent: if A intends to shoot B but misses and shoots C by accident
  • *Sexual battery is always intentional (Scalera)and so is false imprisonment
  • Intent is subjective and requires that the defendant actually desires or be substantially certain the elements of the tort will occur. Consequently, if D does not have capacity, they may not possess the requisite intent.
  • Negligence is where the tort is reasonably certain to result

Forcible

Direct (if it’s indirect – you’d have to sue in negligence)

Liability withoutdamages

Partialreverseonus:

  • Plaintiff just has to prove that the interference happened, then the onus of proof shifts to the defendant to prove: A) that they didn’t act with intention and B) that they didn’t act negligently (Cook v Lewis)

If you are liable, you are liable for all of the direct consequences that flow from the action

Assault

  • See the above “Trespass Torts” requirements.
  • “The reasonable apprehension of an imminent battery by a direct threat.” (Osborne)
  • Intentional assault: refers to the desire on the part of the defendant to create this reasonable apprehension, or the reasonable apprehension was substantiallycertain to result
  • Negligentassault: it was reasonablycertain that the act would create the reasonable apprehension.
  • P must be aware of the assault and must believe that D has the ability to carry out the threat.
  • Protects the right to be free from intimidation and harassment.
  • Note the connection between assault and self-defense

False Imprisonment

  • See the above “Trespass Torts” requirements. D’s conduct must be intentional and it must cause the imprisonment.
  • “Where one person, without lawful authority, intentionally constricts another within fixed boundaries.” (Osborne)
  • “Ifa person reasonably feels totally restrained, however that result is obtained, it amounts to an imprisonment and is actionable where justifiable.” (Jeeves)
  • Physical barriers are not required. The confinement or restraint can be psychological in nature (Jeeves)
  • Psychological confinement can result from explicit or implied threats of violence, a show of authority, or even from a threat of embarrassment, or control over the detainee's valuable property (Jeeves)
  • Protects freedom of movement and liberty.
  • Legalauthority to imprison is a complete defense.The onus is on the defendant to prove that the imprisonment was lawful.
  • Must be a complete restriction of P's physical liberty (Bird). If there is an alternative that is too inconvenient or dangerous, the imprisonment will be seen to be a complete restriction of P’s physical liberty (Bird).
  • Awareness of the confinement is not necessary (although Jeeves said it was, daughter too young).
  • It does not matter that you entered the place voluntarily if you believed you did not have a choice.

Battery

  • See the above “Trespass Torts” requirements.
  • “A directphysicalinterference with the person of another that is either harmful or offensive to a reasonable person.”(Osborne)
  • Offensive refers to a lack of consent. The contact must go beyond the everyday normal contact that is a part of life.
  • “Unwanted” is not enough to reach this level, too subjective; must meet the objectivereasonableperson test
  • Protects bodily integrity, dignity, personal autonomy.
  • Snatching something out of someone’s hand can be a battery (note: backpack)
  • P doesn’t have to be aware of the contact at the time it occurs (i.e. they may be asleep)
  • D just needs to intend the contact, not necessarily the harm.
  • If there is an intervening independent actor, no directness. Butthis actor has to act with volition, i.e. if D pushes P1who falls on P2, P1 has a battery claim against D and P2 has a negligent battery claim against D.
  • Medical battery: Same requirements; when a person who is able to give consent withholds it and a there is a direct physical contact by a doctor (Malette).
  • An intentionalbattery exists where Ddesired the direct, offensive and physical contact with the P or where it was substantiallycertain to result from D’s conduct
  • A negligentbattery arises where the D, through their negligent conduct, causes a direct, offensive and physical contact with the person of the P (Cook v. Lewis). Negligence consists of unreasonablydisregarding a foreseeablerisk of contact with the P even though the D neither desired contact nor was it substantially certain to occur.
  • Errant bullet (Dahlberg v. Nadiuk)

Sexual Battery

The test for consent to sexual battery in power dependency relationships: (Norberg)

  1. Is there inequality between the parties? Yes.
  2. Is there proof of exploitation? Yes.

Once you establish both of these, consent is not a defence.

T.H.O. v. J.H.O: Minors are required to understand the nature or quality of the sexual conduct they initiated, although they do not have to appreciate the harm that it could cause the plaintiff.

ScaleraSexual battery is an intentional tort – upholds partial reverse onus for all trespass torts

Facts: D is being sued for sexual assault in battery. D has insurance that says that the insurer has to defend him and pay any damages, but there is an exemption in the insurance agreement for an intentional act.

Issue: Should the Canadian traditional onus of proof remain the same? (i.e. the plaintiff only has to show that the battery happened, then it is up to the defendant to prove that he had no intent and was not negligent)

McLachlin (majority): No reason to change the onus of proof. Battery applies to unwanted sexual contact. P should not have to prove that she did not consent, because this would deny her the protection of the law that has traditionally upheld the inviolability of the body. There is no such thing as a negligent sexual battery. They are always intentional (therefore the insurance company does not have to pay)

Rationale for the reverse onus:

  1. In trespass actions that result in injury, there is a directness between the defendants actions and the plaintiff’s injuries (unlike negligence where there are consequential sequences of events)
  2. Because injuries are direct, the defendant may have more information or evidence that is unavailable to the plaintiff. “The traditional approach to trespass is also practical, since, if the defendant is in a position to say what happened, it is both sensible and just to give him an incentive to do so by putting the burden of explanation on him.”
  3. Concern that shifting the onus onto P (so that P has to show that it happened and that they didn’t consent) would have high demoralization costs. “In addition, the close causal relationship between the defendant’s conduct and the violation of the plaintiff’s bodily integrity, the identification of the loss with the plaintiff’s personality and freedom, the infliction of the loss in isolated (as opposed to systemic) circumstances, and the perception of the defendant’s conduct as anti-social all support the legal position that once the direct interference with the plaintiff’s person is shown, the defendant may fairly be called upon to explain his behaviour if indeed it was innocent.”

Why the defendant should have to prove the existence of consent (rather than the plaintiff having to prove a lack of consent): “When it is accepted that the foundation of the tort of battery is a violation of personal autonomy, all contact outside the exceptional category of contact that is generally accepted or expected in the course of ordinary life is prima facie offensive. Since sexual contact is not generally accepted or expected in the course of ordinary activities, the plaintiff may establish an action for sexual battery without negativing actual or constructive consent. Nothing special about sexual battery justifies requiring the plaintiff to prove that she did not consent or that the defendant either knew or ought to have known that she did not consent.”

Iacobucci (concurring): Proposes a new tort of sexual battery where P has to prove lack of consent in order for the contact to be offensive. The onus would be on P to prove the sexual contact and the lack of consent. Reason: sexual activity is not inherently harmful.

Impact: Survivors of sexual assault have less chance of recovery because the exclusion clause in the insurance contract applies.

NB: Other trespass torts can be committed negligently and without intention. They had an option here to change the standard to say that all trespass torts had to be intentional, but they didn’t – only sexual battery has to be intentional.

Norberg v. WynribTest for valid consent for sexual battery and fiduciary duty

Facts: The plaintiff was addicted to painkillers. Doctor gave her the pills in exchange for sexual favors. She was accused of double doctoring. Doctor told her to “just quit” – never provided her with any medical treatment. Brought an action for sexual battery, negligence, breach of fiduciary duty, and breach of contract.

Ratio: Coerced consent is not genuine consent. No genuine consent when there is an unequal power relationship and exploitation of the weaker party.

Policy: Deterrence – want to send a message to doctors and other professionals that this is not ok.

Analysis: (La Forest – analyzes battery) See test for valid consent above.

Note: it’s not just the addiction that negated her consent. It’s a combination of the addiction and the doctor’s behavior. La Forest also finds that ex turpi causa (if you do something illegal you can’t sue) doesn’t apply because there was no causation between the double doctoring and the injuries she suffered.

Dissent (Mclachlin): Analyzes fiduciary duty. Says that she did consent, but she can still be compensated because the doctor breached his fiduciary duty.

Fiduciary duty requirements:

  1. Fiduciary has scope for power, can exercise the power
  2. They can do so in a way that affects the interests of the beneficiary
  3. The beneficiary is at the mercy of the fiduciary.

The fiduciary duties include loyalty, good faith, and act in a manner that avoids a conflict of interest.

Wrongful Infliction of Mental Suffering

Requires: (Wilkinson)

a)Outrageous or extreme conduct coupled with an actual or constructive intent to cause a severe impact on P’s wellbeing,

b)Proof of nervous shock, and

c)That P not be particularly susceptible to shock (but if D knew or ought to have known that P was particularly susceptible to mental suffering, then they will be liable)

“The conduct must exceed all bounds usually tolerated by decent society and must be of such a nature that it is calculated to cause and does cause mental distress of a serious kind.” (Nolan) Medical proof is not required.

Wilkinson v. Downton (1897)Wrongful infliction of mental distress – first case

Facts: Woman lies to other woman, telling her that her husband died. P had tried to argue fraud, but court didn’t want to extend the meaning of fraud (in fraud, compensation is based upon the plaintiff acting upon the information and then suffering damages). Here she didn’t act upon the information.

Nolan v. Toronto (Metropolitan) Police Force

Facts: Aboriginal man was arrested on outstanding warrants even though the warrants did not refer to him. He was held overnight. Police made derogatory remarks regarding his race. He sued for false imprisonment and wrongful infliction of mental suffering.

Analysis: Court infers the intent element. Look at harm suffered by plaintiff (drinking, depression) **The court here does not require separate medical evidence.

VICARIOUS LIABILITY

  • Describes the liability that one person has for the torts of another because of the relationship between them
  • Type of strict liability (no defense)
  • Policy: Compensation: the employee is judgment-proof. Loss-spreading: Employers are in a better position to spread the loss. Deterrence: May encourage employers to adopt safety measures
  • If a business is getting the benefit of someone’s work, they should be exposed to the associated risks. (Sagaz)
  • Note: To find an employer liable for the torts of an employee, you must show:
  • That they are an employee and
  • That the act was committed during the course of employment

SagazEmployee vs. Independent Contractor? Key question: CONTROL

Issue: Company hires a contractor to secure them a deal with Canadian Tire. Contractor attempts to bribe. Is the Company liable for the acts of the contractor?

Factors to consider in determiningemployee vs. independent contractor:

level of control the employer has over the worker’s activities

whether the worker provides his or her own equipment

whether the worker hires his or her own helpers

degree of financial risk taken by the work

degree of responsibility for investment and management held by the worker

worker’s opportunity for profit (profit-sharing)

  • Just because the K says “independent contractor” does not mean the courts won’t analyze the relationship

Held: No, the company is not liable for the bribery acts of the independent contractor.

Analysis: “Vicarious liability is fair in principle because the hazards of the business should be borne by the business itself; thus, it does not make sense to anchor liability on an employer for acts of an independent contractor, someone who was in business on his or her own account.”

SalmondTest for whether a tort was committed during the scope of employment:

  1. Was the act authorized by the employer?
  2. Was the unauthorized act “connected” to an authorized act that it could be regarded as a mode of doing the authorized act?

Bazley v. CurrySCC creates the Enterprise Risk Test

Facts: P had been sexually assaulted and abused by the employee of the defendant non-profit organization which operated a residential care facility for troubled children. D's employees were expected to act as parental figures in the supervision they provided, and their responsibilities included physical contact such as bathing the children and tucking them in at night.

Held: The Salmond test is of little use for sexual battery (it would never be authorized by the employer)

Enterprise Risk Test for Vicarious Liability:

  1. Do policy factors (fair compensation, deterrence) indicate that vicarious liability should be imposed? (eliminated in Oblates)
  2. Precedents? If no, is the wrongful act sufficiently connected to the employment to justify vicarious liability?
  3. Consider
  4. Opportunity for the employee to abuse their power
  5. Extent to which the wrongful acts further the employer’s goals
  6. Extent to which the wrongful acts related to friction, confrontation, intimacy
  7. How closely does the employee have to deal with the category of plaintiffs?
  8. Extent of the employee power
  9. Vulnerability of victims (stemming from the power that the organization gave to the employee)

“The fundamental question is whether the wrongful act is sufficiently related to conduct authorized by the employer to justify the imposition of vicarious liability. Vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employer’s desires.” Did the “employer’s enterprise and empowerment of the employee materially increase the risk?”