Law 108C | Torts
Midterm Outline | short | 2013 | Mcdorman

Sandra Town

Responsibility

Joint tortfeasor / 2+ people acting together to commit a tort & you’re not sure who did it / Cook
Requirement / Common design
Essential, non-trivial part
Defense / Looking on with approval
Facilitation (A sells gun to B, B shoots C, A not JT)
Vicarious liability
(Strict – no fault necessary) / Liable for the actions of another based on the relationship bt/ them / Sagaz
Oblates
Requirement / Requisite relationship must exist
Risk increased when employer empowers employee
Salmond Test (old)
  • Act authorized by employer
  • Act occurs in scope of employment
Bazley Factors (strong connection test)
  • Opportunity to abuse power
  • Extent to which act furthered ER’s aim
  • Extent to which act relates to confrontation/intimacy in ER’s enterprise
  • Extent of EE power
NOTE: opportunity is not sufficient  STRONG CONNECTION bt/ what’s asked/authorized and what was done
Defense / Employer – Independent Contractor
Parent – Child
Trustee - Beneficiary
Policy / If you bring the risk in, you should be responsible for the harm
Employers better able to pay than employees, able to implement risk reduction plans
Joint & Several Liability / Together and separately liable
  • Degree of fault irrelevant
  • Can sue together and Pl. determines who pays how much
/ Negligence Act
Contributory Negligence / Pl. conduct contributes to tort
  • Degree of fault matters – crt factors into damages
/ Negligence Act

Types

Nuisance / Intentional / Negligence
Need damage, but no fault
STRICT  liable for injuries no matter what precautions / Need fault, but no damages
DELIBERATE  acts with intent to interfere c/ a right (probable that harm will follow) / Need damage and fault
Conduct falls below that which is required
Private
Public / Protects use and enjoyment of land / Land
Assault
Battery
Medical Consent
Mental Health
False Impr. / Dominion over property
Bodily Integrity
Emotional tranquility
Freedom
Consent is absolute defence against intentional torts

Private Nuisance – Land

Strict / Don’t have to prove fault, just that nuisance occurred
Requirements / Damage/interference to Pl. use/enjoyment of the land
Physical
  • Material/substantial
  • Actual (NOT potential for future damage)
  • Readily ascertainable (measurable, but not necessarily visible to naked eye)
Amenity
  • Substantial interference c/ beneficial use of land (eg. economic loss)
Pl. must have land interest (eg. own, rent, related to owner/renter) / Inco
Onus on… Pl. / Must prove Def. directly trespassed (whether intentionally or negligently)
  • Must be physical trespass, but can be by an object OR person
  • Trespass must be unreasonable
/ Antrim
Defense / Directness – no intervening acts bt/ Def. actions and trespass
Consent – Def. proves Pl. was ok with it
Reasonable
  • Character of neighbourhood
  • Frequency/duration/severity of interference
/ Burden of proof on Def.
Not about Def. conduct / Inco
Scalera
Antrim

Note: Onus on Pl. greater in Private nuisance – R v. F is stricter

Rylands v. Fletcher / Strict / Liable for escape of “ultra-hazardous” substance that damages Pl. property
Criteria /
  1. Def. involved in non-natural use of land (inappropriate to the place)
  2. Def. brought sm/t to the land that could do mischief if it escaped
  3. The substance escaped (doesn’t have to be isolated; not hazardous until accumulated)
  4. Damage was caused by the escape

Defense / Result was intended – eg. smokestack in Inco there to let the waste out
Eg. floods, gas leaks, chemical spills, sewage overflow, fire, dangerous animals, etc.

Trespass to land – interference with dominion over property

Intentional / No need to have damages b/c intent is to harm
Requirements / Voluntary, direct, physical intrusion onto land by Def.
  • Includes – entering c/out permission, placing/propelling sm/t onto land from afar

Assault – Reasonable apprehension of imminent physical harm

Intentional / No need to have damages b/c intent is to harm
  • Legal wrong is act of disturbing my sense of security
  • Must be aware it happened – must feel apprehension

Requirements / No contact
Direct action
Fault
NO need to be aware it happened / Then it’s battery
Intentional OR negligent
Def. has to have done sm/t wrong
Can sleep / Scalera
Onus on… Pl. / Must prove causation bt/ action and harm
  • Fault  it’s not enough to just claim it happened

Defense / Unintentional
Consent
Remoteness / Burden of proof on Def.

Battery – Physical harm caused by direct action

Intentional / No need to have damages/experience harm b/c intent is to harm
  • Legal wrong is the contact
  • Can bring a claim even if you didn’t know it happened (eg. slept through it)

Requirements / Direct action leading to physical harm
  • Can be negligent  negligent act causes the battery (eg. elbows in a crowd)
Action plus harm/offense (more than trivial)
NO need to actually experience harm  the contact itself is the wrong / Scalera
Onus on… Pl. / Must prove there was contact leading to damage
  • Physical contact is the big issue, intent behind the action doesn’t matter

Defense / Trivial contact RE ordinary life (eg. jostled in crowd)
Consent
  • Scalera dissent wanted to move burden of proving consent to Pl. – didn’t actually happen
  • Includes failure to resist
  • Doesn’t count if
Remoteness / Burden of proof on Def.
Norberg
Sexual Battery / Current tort law doesn’t effectively deal with it explore relationship bt/ power imbalance and consent / Norberg
Analogy to K Law (pg.9) / Fiduciary Duties (pg.9)
Recognizes that sm/t don’t have free/equal bargaining powers (Norberg)
  1. Does there exist a special power-dependent relationship?
  2. Is there exploitation?
IF YES – no consent (both necessary) / Inherent unequal balance bt/ 2 parties gives rise to special considerations (Norberg dissent)
  • F. has area of discretion/power & B. is particularly vulnerable to F. holding it
  • Breach if F. uses the power for their own good (all Pl. has to prove)
Consent irrelevant – responsibility lies on F. (they should know better)
Not all relationships so unbalanced – consider age, minority, profession, education, etc.

Medical Consent

General Rule / Can give, refuse, revoke consent – regardless of the consequences
(right to control interference to your body)
  • CL principles codified in Act
/ Mallette
Requirements / Full, free, & informed  as much information as a reasonable person would need in order to give consent
  • Negated by duress
/ Reibl
Duty to Inform / Not liable in battery for failing to inform of all the risks, as long as treatment is substantially that which was consented to by the patient
  • Liable if fraudulent misrepresentation, or perform sm/t other that treatment consented to
  • Failure to inform more likely to be negligence
/ Reibl
Onus on… Def. / To prove consent – otherwise it’s battery
Defense / Consent
  • Express or implied
  • Can include failure to object (circumstantial)

Emergency Exception / Privilege to treat c/out consent to preserve life
  • Unconscious
  • Incapable of making a decision
  • No one legally entitled to give consent around
  • Urgent – waiting would cause harm
  • Reasonable person would consent
Negated by advance instruction / Mallette

Mental Security - intentional infliction of mental suffering

Intentional AND trespass / Need both intent to harm AND actual harm
Requirements / Act/Statement must be outrageous/extreme
Intent to produce harm
Proof of harm/damage (objective, medically understood – physical or psychological) / Downtown
Floodgate / Where do you draw the line? Reasonable person would find conduct shocking/outrageous

False Imprisonment – confined against your will c/out legal authority

Intentional / Don’t need damages b/c intent is to interfere with fundamental right to freedom
Requirements / False
Imprisonment
  • Physical OR mental
Directness / Lumba
Onus on… Pl. / Just to prove they were imprisoned
Defense / Lawful (ie. authorized)
Wasn’t actually imprisonment / Burden on Def.
Reasonable efforts / Mistake of fact is not a defense, no matter how hard you try to figure it out
  • BUT there is a distinction bt/ mistake and accident
  • Must have intent (no intent in accident t/f no violation)

1