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Introduction to Torts
Defining Torts
Trespass and Case: A Brief Review of the Case Law
Epstein, “Intentional Harms”
Descriptive Account of Aims of Tort Law
1. Compensation
2. Punishment
3. Deterrence
4. Education: Promoting model behaviour for society at large
5. Appeasement and Vindication
Normative Account of Aims of Tort Law
Basic Principles of Liability
Bases for Imposing Liability in Tort
Absolute Liability
Strict Liability
Negligence
Intention
No Liability
Coleman, “Theories of Tort Law”
Trespass to Person
Assault
**Holcombe v. Whitaker 1975
Police v. Greaves [1964] N.Z.L.R. 295 (C.A.)
Battery
**Bettel v. Yim (1978) Ont.
Sexual Battery
False Imprisonment
**Bird v. Jones (1845), 115 E.R. 668 (Q.B.)
**Campbell v. S.S. Kresge Co. (1976), 74 D.L.R. (3d) 717 (N.S.S.C. (T.D.))
Herd v. Weardale Steel, Coal and Coke Co. Ltd. [1915] A.C. 67 (H.L.)
Malicious Prosecution
**Nelles v. Ontario [1989] 2 S.C.R. 170
Intentional Infliction of Nervous Shock
**Wilkinson v. Downton [1897] 2 Q.B. 57
Radovskis v. Tomm (1957), 9 D.L.R. (2d) 751 (Man. Q.B.)
Discrimination
Bhadauria v. Board of Governors of Seneca College of Applied Arts and Technology
Stalking and Harassment
Trespass to Land
Entick v. Carrington (1765)
**Turner v. Thorne (1960) Ont. H.C.
Harrison v. Carswell [1976] 2 S.C.R. 200
Intentional Interference with Chattels
1. Trespass to Chattels
**Fouldes v. Willoughby (1841), 151 ER 1153 (Ex. Ct.)
2. Detinue
**Aitken v. Gardiner (1956), 4 DLR (2d) 119 (Ont. H.C.)
3. Conversion
**Mackenzie v. Scotia Lumber Co. (1913), 11 DLR 729 (NSSC)
4. Action on the case to protect a reversionary interest
373409 Alberta Ltd. (Receiver of) v. Bank of Montreal (2002), SCC
Gen & Finance Facilities Ltd. v. Cooks Cars (Romford) Ltd., [1963] 1 WLR 644 (CA)
Intentional Interference with Economic Interests
1. Deceit (Fraud)
**Derry v. Peek (1889), 14 AC 337 (HL)
2. Passing Off
**Ciba-Geigy Canada Ltd v. Apotex Inc. (1992), 95 DLR (4th) 385 (SCC)
3. Intimidation
Central Can. Potash v Govt. of Sask. (1979), 88 DLR (3d) 609 (SCC)
4. Conspiracy
Posluns v Toronto Stock Exchange (1964), 46 DLR (2d) 210 (Ont. H.C.)
5. Other Business Torts
Reach MD Inc. v Pharmaceutical Manufacturers Assn. of Canada (2003) Ont. C.A.
Defences
Defence of Consent
**Wright v McLean (1956)
**Agar v Canning (1965)
Malette v Shulman (1987), Ont. C.A.
C. v. Wren (1986)
Factors that Eliminate Consent
Latter v Braddell (1880)
Marshall v Curry [1933]
Self-Defence
**Wackett v Calder (1965), (BCCA)
Defence of Third Parties
**Gambriell v. Caparelli (1974) Ont. Co. Ct.
Defence of Discipline
R v. Dupperon (1984), (Sask. C. A.)
Defence of Legal Authority
Koechlin v. Waugh and Hamilton (1957), Ont. C.A.
Defence of Real Property
Macdonald v. Hees (1974) NSSC
Bird v. Holbrook (1828) CP
Defence and Recaption of Chattels
Defence of Public and Private Necessity
Surocco v. Geary, Cal. S.C. 1853
Vincent v. Lake Erie TPT. Co., Minn. S.C. 1910
Remedies
Damages
Nominal Damages
Compensatory Damages
Aggravated Damages
Punitive Damages
Disgorgement Damages
Injunction
Declaration
Order of Specific Restitution
Defamation
**Sim v Stretch [1936]
Defence of Justification
Williams v Reason
Defence of Absolute Privilege
Dowson v The Queen (1981) FCA
Hung v Gardiner (2003) BCCA
Defence of Qualified Privilege
Hill v Church of Scientology of Toronto
Defence of Fair Comment
**WIC Radio Ltd v Simpson [2008] SCC
Defence of Responsible Communication on Matters of Public Interest
**Grant v Torstar Corp [2009] SCC
Defence of Consent
Jones v Brooks (1974) Sask. QB
Theoretical Criticism of Tort Law
Deterrence
Compensation
Theories of Tort Law Based on Concepts of Justice
Schwartz, “Feminist Approaches to Tort Law”
Priel, “A Public Role for the Intentional Torts”
Introduction to Torts
Defining Torts
- Torts: Area of law concerned with remedying individuals for the wrongs committed by another through a breach of the obligations of legal interpersonal relationships
Tort Law / Criminal Law
Private wrongsbetween individuals / Public wrongs (Crown represents the people)
Remedies harm, returns P to original state / Deterrence, retributivism, restitution
Proves on a Balance of Probabilities (BoP) / Finds D’s guilt beyond a reasonable doubt (BARD)
B brings action after A causes him loss / R brings prosecution; B = repository of evidence
Can find justice even without prosecution / Achieving justice limited to Crown’s decision
- Retributivism (punishing for the harm done) and Restitution (reasserting rights of the victim)
Tort Law / Contract Law (K)
Involuntary involvement / Voluntary involvement
Obligations from circumstances, duty of care / Contractual obligations imposed by parties on self
Obligations can apply to all society / Privity: applicable only to parties in the agreement
Backward looking, imposed after the harm / Forward looking, meant to predict the future
- There are some implied terms in Contracts that are similar to Torts obligations on behaviour
- Cannot enjoy double recovery if several paths for lawsuits are possible
- Case-based Torts progresses incrementally; doesn’t want a new decision to overstep the mark
- Nominate actions: those that acquired specific names (e.g. battery, assault); innominate if not
- Early tort law focused on directly vs. indirectly caused injuries; after 1850’s, focus shifted to fault (due to either intent or negligence) as a prerequisite for determining liability in most tort areas
Trespass and Case: A Brief Review of the Case Law
- Actions on the case are taken for indirect injuries than wilful invasion of another’s property/person (trespass)
- Scott v Shepherd: He who does the first wrong is answerable for all the consequential damages.Intermediates acted reasonably and out of necessity imposed on them by D, so set off a chain reaction
- Dissent: Stone that hit window analogy: Damage is done once it hit window, but rock is full of potential for mischief; if it’s picked up and used for further damage, trespass lies on the new thrower
- Leame v Bray: Since P got injured as a direct result of what D did (wilfully guiding the horse forward, not wilfully causing harm), P’s subject to an action of trespass.
- Williams v Holland: Gave P choice to bring action in trespass or on case since it was a direct, negligent act
- Holmes v Mather: If act isn’t wrongful, due to intent, or due to negligence (i.e. it was full accident), no action is maintainable. If act is wrongful, trespass is proper form of action (since it’s either wilful or due to negligence)
Epstein, “Intentional Harms”
- “Deliberate harms” more than just “specific end desired by person inflicting harm”, extends to:
1. Person might know that his actions cause harm, even though he doesn’t wish for them to occur
2. Person knows that his actions might cause harm, but is either reckless or indifferent about it - Created a set of rules for accommodating both accidental and intentional harms into single theory, allowing “intent to harm” to defeat any allegations by D that it was merely accidental
- Wanted to develop a reformative theory of torts that takes into account individual responsibility
- These rounds refer to an analytical framework that he developed for accident cases; his aim is to give a coherent account of tort law allowing them to approach any case from a single POV
- 1st round: plaintiff establishes prima facie case against defendant (intention to harm no matter)
- 2nd round: defendant provides his Defence; “it was an accident!”
- 3rd round: plaintiff can spring “intent to harm” as trump card
- 4th round: common excuses (e.g. necessity, self-defence, consent)
- Hand formula negligence test: liability depends on whether B (burden of adequate precautions) is less than L x P (gravity of harm x probability of it occurring)
- If B < L x P, then defendant is liable if he doesn’t taken those precautions
- If B > L x P, then it’s out of defendant’s hands
- Conclusions: tort law can’t be just based on utilitarian measures; it must recognize its irreducible ethical base
- Boils down to: 1. Is there harm? And 2. Is there causation for that harm? If so, then liable; if you want to argue against that, bring it up in the structured framework
- Simmonds’ commentary: Private law (including tort) is composed of discrete transactions, not collective projects, and thus shouldn’t be transformed in the direction of public regulatory goals
- EAL (economic analysis of law), citing Ronald Coase, believes that causality is fully reciprocal in legal disputes: choice between two harms, which boils down to what would you rather have more of (e.g. if A’s cattle tramples B’s crops, should harm be done to A to stop his cattle’s wandering or to B to destroy his crops)
Descriptive Account of Aims of Tort Law
- Descriptive account: the aims that torts pursues and what it does in practice
1. Compensation
- Generally thought of as the primary function of tort law
- Minimizes disruptions accompanying an injury, to restore plaintiff back to where he was before
- Compensation tailored to P’s particular loss, and seeks full indemnity for those losses
- Coleman: Tort law as corrective justice, whose principle is based on a system of duties:
- First-order: Duty not to injure; establishes norm of conduct
- Second-order: Duty of repair when first-order duty breached
- Compensation when repair is not an option
- Seeks to correct improper deviations from the existing distribution of wealth, but assumes this distribution was fair to start with (Bill Gates analogy)
- Focus on compensation ignores fault, protects victim’s right not to be injured
- Takes away the urge to “take matters into your own hands” to get your own justice
- P will only recover damages if tortfeasor (D) has enough assets/insurance to pay
- Moral luck big problem in torts; sometimes people cause harm because they’re just unlucky
- Problem of no-fault compensation in torts: no accountability so people more willing to take risks
2. Punishment
- Crim justice system: most morally blameworthy conduct that would warrant punishment in torts federal or provincial offence
- Tort law is like a criminal sanction without the higher standard of proof, not interested in casting moral judgment on an offender’s character
- Can provide some emotional compensation
- Sanction on the wrongdoer and express society’s disapproval of his conduct
3. Deterrence
- Specific deterrence: aims to change the future behaviour of the defendant
- General deterrence: aims to change behaviour of a class of potential defendants
- Market deterrence: aims to change behaviour of the producer of goods to prevent future harms
- “Optimum” number of accidents: where benefits of product > cost of accident it could cause, so that accident costs are allocated throughout the market
- Contentious about using tort law to redistribute wealth
- Torts has greater impact on premeditated conduct, but most cases are now of negligence
- Might not be a factor for offenders with greater means
- Assumes that people behave rationally and will consider the consequences of their actions, and that they will heed deterrence of behaviour; not always the case (e.g. offence done under influence of mental issues, intoxication, extreme emotion)
4. Education: Promoting model behaviour for society at large
5. Appeasement and Vindication
Normative Account of Aims of Tort Law
- Normative account: the aims that torts could pursue and what it should do in practice
- Distributive justice: critiques corrective justice for looking at nature of damage instead of morality of the parties, and aims to redistribute wealth
- Retributive theory: liability on blameworthy D to penalize them for their moral fault
- Economic theory: impose liability to spur rational economic behaviour (i.e. minimize cost of accidents and costs to avoid them) and efficient allocation of resources
Basic Principles of Liability
Intentional Torts / NegligenceLong history, so static / Fairly modern tort, more fluid
Defined by narrow rigid rules / Governed by general and discretionary principles
Conservative, orthodox / Dynamic, reflects current public attitudes/policies
- Example: Imagine A is in a forest and, thinking that he is completely alone, decides to use a tin can for rifle practice. Shoots at the can and hits it. The bullet, however, ricochets off the can and hits B, who is walking through the forest but out of sight of A.
- A intended to hit the can, but did not intend to hit B (unintended effect)
- Intent: A intended X when he wanted X to result from his actions.
- Basic intent: actor’s desire to do that act; “I’ve intended to do a thing”
- Specific intent: actor’s desire to bring about the results/consequences of his act; “I’ve intended to maim you with my attack.”
- Volition: If D exercised control over his physical actions by his conscious mind
- E.g. sleepwalking, epileptic fits, some disorders are involuntary
- Strict liability just requires a voluntary act
- Most other liabilities require that D intended the consequences of the involuntary act
- Smith v Stone: Judge ruled that the driver of the cattle carrying D is committing the trespass onto P’s land, not the owner (D himself) who did it involuntarily
- Reasonable person: with an objective standpoint; helps decide cases of intent and negligence
- Sometimes, people with a particular knowledge set have a standard of a reasonable person in their profession (e.g. surgeons held to standard of a reasonable surgeon)
- Some of these other factors could be age (e.g. cases of incapacity), gender (e.g. domestic violence), personal history (e.g. sexual abuse cases)
- Imputed (constructive) intent: If D did not desire the consequences to occur, but they were substantially certain/practically unavoidable to result from his act (as judged by a reasonable person), then he’s treated AS IF he intended the result
- E.g. If A places a bomb in an outer office with intent to injure his boss, and the bomb goes off and injures other coworkers, then intent is imputed to him for their injuries
- Justified for the sake of public protection, even though society holds people responsible for things they may not have literally intended
- Transferred intent: meant to commit an intentional tort against one party, but unintentionally commits an intentional tort against the plaintiff (both can sue for assault)
- Or intends to commit one tort against P but unintentionally commits another
- Justified on the grounds that D’s conduct is culpable and caused harm, and P is innocent
- Motive: Reason for committing the act, or reason for wanting the consequence of that act
- Example: friend moving your car for you vs. practical joker hiding it vs. thief stealing it all have the intent to move your car, but their motives differ
- Generally not an element of the cause of action, since occurrence > reasoning
- Ashwood/Duff example: Company sent D to plant a bomb on a plane for the motive of collecting the cargo insurance; if it goes off, it will kill everyone on board. Is there intent to kill?
- Duff: D could succeed without deaths, so no intent to kill; separating motive and intent
- Ashwood: it’s almost certain that people will die if the defendant succeeds
- Exceptions for determining volition and intent in children and the mentally disabled (capacity)
- Rule: D is not liable in tort if he did not understand the nature and quality of his act.
- Supervisors (e.g. parents, teachers, nurses) cannot be held vicariously liable for children/MC people’s actions, unless they were party to the offender’s wrong or negligent in supervising/controlling their behaviour
- Duress (under force) is one factor courts may consider in assessing damages, not a defence in of itself, nor will it negate volition/intent
- Gilbert v Stone: D pleaded that he committed the trespass to land because 12 armed men threatened to wound him if he didn’t; Since P couldn’t get satisfaction from the threatening party, defendant is liable
- In self-defence, there must be proportionality; the response must not be greater than the act of aggression (i.e. you can’t shoot someone who tries to steal your TV)
- Self-defence due to provocation requires evidence of annoyance, uncontrolled passion, or lack of self-control to succeed
- Miska v Sivec: P threatened D with weapons and chased him. D shot P.
- The previous bad blood between the parties wasn’t an immediate provocative act to stir up P’s passion, so there is no evidence of provocation.
- Mistake: when D intends the consequence of his act, but those consequences have a different factual/legal significance than that contemplated; generally a voluntary act without an intention
- Hodgkinson v Martin: D had bodily removed P from D’s office under the mistaken belief that he was justified in doing so to protect the interests of the Crown, and not to exclude P [the custodian] from those premises
- Since it was a mistake, judge ruled that P would receive nominal damages from D
- Ranson v Kitner: D shot P’s dog after mistaking it for a wolf on a wolf hunt; D was held him liable for the value of the dog, notwithstanding that he was acting in good faith
- Accident: any situation in which D unintentionally and without negligence injured P; can’t be held liable for accident; absence of intent distinguishes it from mistake
Bases for Imposing Liability in Tort
Absolute Liability
- Status offences
- Defendant did something proscribed (illegal), which caused the plaintiff to suffer loss
- Intent and negligence don’t matter; generally no act
- Not a useful modern model
Strict Liability
- No intent or negligence applicable or required, but an obligation was breached
- But if Ps loss was due to a third party, an unforeseeable act of God, or the inevitable result of D doing something legal and authorized, then no damages awarded
- Just need to prove that the defect caused the harm, that the act happened
- Vicarious liability: like if an employer is legally responsible for torts committed by employees
- Coleman: Even though D would bear costs regardless of fault, it’s still rational to take precautions that < expected cost
Negligence
- D failed to take reasonable care to prevent the thing that causes the harm
- Burden of proof on P to prove lack of this care
Intention
- P must prove actual subjective intent of the defendant
- Burden of proof on D to disprove intent and negligence
No Liability
- Despite causal connection between action and loss, it could be outside of the scope of torts
- Examples: business not to blame for ruining the competition if it acts lawfully; pregnant woman not liable for injuries her negligence may have caused the baby in utero
Coleman,“Theories of Tort Law”
- Two main types of duties:
- Duty not to injure (in something inherently dangerous; e.g. using dynamite); conduct governed by strict liability
- Duty not to injure recklessly, negligently, or willfully (in something normal like driving); conduct governed by fault liability
- Fault liability can be undermined by justification
- When cost of precaution < expected injury: cost-justified precaution rational reasonable taking this precaution would not be evidence of negligence
- Victim, assuming D took the rational cost-justified precautions, must suffer the losses by himself, just like the injurer in strict liability
- Analytical theories interpret and explain tort; Normative theories justify or reform tort
- Instrumental theories believe tort’s features help explain an overarching purpose: some believe it aims to allocate costs efficiently, others believe fairly
- Non-instrumental theories identify tort’s central concepts as rights, wrongs, and redress
- Retributive justice not good for explaining tort law because:
- “Outcome responsibility”, not moral
- Tort damages can be repaid by third parties, but not criminal damages
- Can’t guard against liability for committing a crime (i.e. can’t buy insurance)
- Legitimate distribution of resources may not be fully just
- Civil recourse theory doesn’t offer guidance on what redress is appropriate for a given situation, so it doesn’t cover the subtleties of tort law
- Issue with moral goal of law: To compel someone to be good doesn’t equal them actually being good; infringes upon their autonomy
Trespass to Person
Assault
Elements of the tort of assault: