Law 108C Torts Midterm Outline Short 2013 Mcdorman

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 /

Def. involved in non-natural use of land (inappropriate to the place)
Def. brought sm/t to the land that could do mischief if it escaped
The substance escaped (doesn’t have to be isolated; not hazardous until accumulated)
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)

Does there exist a special power-dependent relationship?
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)