Joint Tortfeasors
Cook v. Lewis (1951)
Parties to a common lawful action will not be held liable for the tortious actions of one. Mere presence is not sufficient to confirm joint tortfeasance.
Bains v. Hofs (1992, BCSC)
One who knowingly assists or encourages another to commit a tort, does not dissociate himself from the tort, or who is present as a conspirator in the tort may be held jointly liable.
Sea Shepherd UK v. Fish and Fish Limited (2015, UKSC)
A joint tortfeasor must join in the commission of the tort, and be so involved in the commission as to make the infringing act his own.
Vicarious Liability
Ontario Ltd v. Sagaz Industries (2001) SCC
Contractor/employer relationship does not give rise to a claim for V.L. K to service (employee) v. K for services.
Enterprise risk test used, without vulnerability bit.
Non-Delegable Duties: ultimate responsibility cannot be delegated with the duty.
Danicek v. Alexander HolburnBeaudin & Lang, (2011 BCSC)
V.L. test: 1. Clear employee/employer relationship; 2. Tort committed in course of employment
Bazley v. Curry (1999, SCC)
Salmond test: 1. Act was unauthorized; 2. The unauthorized act is so connected to authorized acts that it may be considered to be a mode of doing the authorized act.
V.L. may arise when the employer creates the risk that gives rise to the employee’s tort. Mere opportunity is not sufficient. A wrong only coincidentally linked to the employer is not sufficient.
Policy considerations: 1. Fair compensation 2. Deterrence
Enterprise risk test is an add-on to the Salmond test:
- Opportunity that the enterprise afforded the employee to abuse their power
- Extent to which the wrongful act may have furthered the employer’s aims (and hence be more likely to have been committed by the employee
- Extent to which the wrongful act was related to confrontation or intimacy
- Extent of power conferred on the employee in relation to the victim
- Vulnerability of potential victims
An organization’s responsibility over its operations does not diminish when it employs volunteers, and children cannot be expected to bear the cost of the harm so that others may benefit from the non-profit, therefore there is no exemption from V.L. for charities.
Oblates (2005, SCC)
No V.L.. Less opportunity, torts had nothing to do with respondent’s aims, no regular contact with students, abuse took place in places off-limits to students, no power conferred on handyman. Dissent: high-level of access, children do not differentiate between adult staff
Hospitals and Doctors
Hospitals may be V.L. for the tortious conduct of their staff. Enterprise risk may not be restricted only to intentional torts.
Yepremian v. Scarborough General Hospital (1980, Ont CA)
No vicarious liability for the torts of doctors with only “hospital privileges”.
John Doe v. Bennett (2004, SCC)
Salmond test and policy considerations may extend a hospital’s liability to practitioners with hospital privileges.
Parental Liability
At common law, parents are not V.L. for the torts of their children. In BC parents are liable for intentional property damage or loss caused by their child to a max of $10,000, based on a presumption of parental fault (Parental Liability Act, 2001). 1. Reasonable supervision and 2. reasonable efforts must be established to prove otherwise. Statute does not impose V.L.
Joint and Several Liability
AGBC v. ICBC (2008, SCC)
P.O. 10% liable, paid by AGBC under Police Act. PO granted immunity, but victim protected by transfer of liability to AGBC. If officer would have been liable but for the statutory immunity, the AGBC will also be liable.
Contributory Negligence
Determined by objective standard of the reasonably prudent person. Percentage calculated on blameworthiness, not causation. Plaintiff can be held liable for a percentage, and defendant only pays their percentage.
Actionable Harm
Smith v. Inco (2011, ONCA)
Private Nuisance
Smith v. Inco (2011, ONCA)
No nuisance arises without substantial material injury that is readily ascertainable. Policy consideration: should plf shoulder burden or too much to reasonably bear w/o $? Physical nuisance — harm to humans.
Sullivan - piggy case. Amenity nuisance — interference with lawful enjoyment of property.
Antrim Truck Centre v. The Queen (2013, SCC)
Must be a substantial and unreasonable interference with the use and enjoyment of land for a claim.
Unreasonable = 1. severity, 2. character of neighbourhood, 3. special circumstances, 4. duration
Public Good case, so policy considerations in the balance are different = was the burden imposed unreasonable to bear without $ in light of the public good?
If temporary interference, no case.
If harm is substantial, the type of harm (physical or interference) is irrelevant. Do a reasonableness analysis.
Mandrake case, subway vibrations. Commercial nature of area, profitability not affected, no material damage, inevitability of noise.
Saik’uz First Nation v. Rio Tinto Alcan Inc. (2015, BCCA)
The right to exclusive possession of the reserve lands is sufficient to bring a claim in private nuisance. It was not “plain and obvious” that the claim could not be brought; no absolute right to bring a claim was declared. Courts have upheld trespass on reserve lands, so reasonable that private nuisance could also be brought. Broader understanding (“occupancy of a substantial nature”) set out in Motherwell, narrower one in Hunter (right of exclusive possession necessary for claim in private nuisance).
Rylands v. Fletcher
Strict Liability if:
1. The defendant made a “non-natural” or “special” use of his land
2. The defendant brought on to the land something that was likely to do mischief if it escaped
3. The substance in question in fact escaped
4. Physical damage was caused to the plaintiff’s property as a result of the escape
Policy: inherently dangerous activities should have strict liability imposed (for legislature to decide, if it’s legislated people will know of the hazard and get insurance)
Trespass
Smith v. Inco (2010, ONSC)
Direct, physical intrusion onto land, by person or by items projected. Actionable without proof of damage. Need not be intentional, but must be voluntary. Inco permitted particles to migrate rather than intentionally putting them there.
Dwyer v. Staunton(1947, Alberta District Court)
Farmer case. Was the burden imposed unreasonable in light of the public good?
The rights of the public are placed higher than the rights of the private individual.
Assault and Battery
Trespass actions used primarily for intentional, direct interferences. Onus on defendant to prove act was unintentional and without negligence.
Battery: intentional infliction of unlawful force on another person (La Forest J. in Norberg v. Wynrib, 1992)
Actual physical contact. A hit can be assault and a battery.
Assault: direct and intentional act that causes a person to apprehend immediate harmful/offensive bodily contact (Freitas)
Non-Marine Underwriters, Lloyd’s of London v. Scalera(2000, SCC)
Onus is on the defendant to prove consent in a sexual battery case.
Directness requirement: interference is direct if it is the immediate consequence of a force set in motion by defendant’s action
Must have Volition, eg. four year old hitting someone: probably doesn’t realize it hurts, so no volition
Complete defences: consent, self-defence, defending a third party, defence of property, discipline, necessity, legal authority (usually by legislation, often for police). Partial defences: provocation (partly self-defence)
Freitas v. Defraga (2006, ONSC) BMW case
Immediate threat of bodily harm constitutes an assault. Direct, intentional act that causes a person to apprehend immediate harmful or offensive bodily contact.
Krawczyk v. Peter Kiewit Sons Co. (2009, BCSC)
Frightening or threatening do not constitute assault unless the event feared is imminent.
Malette v. Shulman (1990, Ont CA)
A patient has a right to consent to or refuse medical treatment regardless of reasons.
Reibl v. Hughes (1980, SCC)
Failure to disclose risks does not call into question the validity of the patient’s consent to trespass of the body. Consent granted without sufficient information/delineation of risks gives rise to a claim in negligence rather than battery.
SJB v. BC (2005, BCSC)
Child protection authorities may intervene to save the life of a child, regardless of the mature minor’s refusal of medical treatment.
Colby v. Schmidt (1986, BCSC)
In sports, the player consents to contact but attempting to cause injury is not within the scope of the consent.
1. Within scope of ordinary standards of the game? 2. Intention to harm?
Consent in sports is not to be judged by “standards suited to polite social intercourse.”