1
INTENTIONAL TORTS
Volition: Smith(carried on); Stokes(involuntariness)
Intent; Motive: Duress:Gilbert(threatstrespass)
Provocation: Miska(shot from window); Mistake (not per se D): Hodgkinson (Put man out, thought he had right to)
BATTERY: Elements: 1. Viol of phys integrity 2. Intent (Bettel )3. RP would find conduct offensive; Defences: Consent (Non-Marine, BoP same in sex batt), SD, D of prop, necessity, legal auth
ASSAULT:Elements: 1. Intentional/subj creation of 2. Threat of imminent phys interf3. Infringing s/o’s psych autonomy 4. Victim has rsnble apprehension P perceives (Krawczyk: protester, consent assault?)
FI: Elements: 1. Int’l restraint 2. TOTAL restr, even if only momentary (barriers, threat of force, asser of legal auth: Bird: PO road block, other routes, no FI) 3.Can be psych restriction (Campbell: assertion of auth, threat, false arrest); Defences: Consent (Herd: mine, consensual restraint), Justif (Ward: pie suspicion, ongoing detention; arrest: R/P gds, det: rsnble susp)
MP: Elements: 1. Prdgs initiated by D 2. Terminated in favour of P3. Absence of rsnble/probable grounds (subj & obj) 4. Malice (Nelles: nurse, 4 part test)
ABUSE OF PROCESS: Elements: 1. D brought civ action for extrinsic purpose 2. P suffered conseq loss 3. P doesn’t have to prove earlier prcdgs term’d in favour 4. P does not have to prove D lacked R/P grounds (Miazga: Kids recant; narrowed scope for MP; 3rd step of MP test: obj more imp than subj part)
IoP: Elements: 1. Violation of reasonable expect’n of privacy (i.e. unreasonable invasion) 2. Done willfully (conduct + knowledge) 3. Intention 4. Knew or ought to have known act would violate privacy
CL & Stat (BC Privacy Act): Motherwell(IoP new categ of nuisance) Hollingsworth(not liable under Act if acting in honest/reasonable belief, w/o knowledge of IoP)Watts(phone tap/fired; reckless, disproportionate, dissemination = VoP); ex turpi causa (cannot benefit from illegal conduct) defence
INTENT’L INTERFERENCE W/ REAL PROP
TRESPASS TO LAND: Elements: 1. Phys presence on property 2. Intent (ltd subj MR) to do basic conduct that results in breach of property rights 3. Knowl that you’re trespassing NOT necessary, dmg NOT necessary:
Entick(Carried away papers; dmg not necessary to = trespass); Turner(Boxes in garage; trespasser liable for all injuries, conseq’s; innocent mistake does not relieve liability)
Harrison (Mall picketer, guilty of trespass, bal of rights)
DEFENCE OF CONSENT
Implied Consent: Wright v McLean(Mud fight; IC to what reasonably goes on in activity)
Exceeding Consent: Agar v Canning(Hockey retaliatory strike; beyond activity included in IC)
Factors vitiating consent:
1. Fraud (2-part test: a. Intent to deceive, was it causative to consent? b. Related to nature/quality of act, heart of matter – not every misresp = fraud)
2.Mistake (a. honest but reasonable mistaken belief in consent b. If D responsible for P’s mistake)
3. Duress4. Public Policy (Norberg: Sex for pills, no consent to sex battery; power relations)
MED CONSENTVol’y; based on full disclosure; implicit or explicit; Exceptions: 1. Unforeseen med emergency:Malette(blood transf = battery, card = valid refusal)
2. Implicit C to incidental trmts (Marshall: Testicle removed @surgery, couldn’t get consent)
3. Therapeutic privilege to withhold info (rejected)
Competency to Consent: C v Wren(16 abortion✓)
Ds re: PROTECTION OF PERSON AND PROP
SELF DEFENCE: Elements: 1. Honest & reasonable belief of current/imminent battery 2. No reasonable alternative to use of force 3. Force use is reasonably proportional to situation (Wackett v Calder: bar fight, force proportionate; P not credible); Credibility:Pollard v Sim(Ferry line; D acted in SD w/ rsnble blf of impending assault, reacted w/ reasonable force)
DEFAMElements: P must prove on Bal/P that statements:1. Were defamatory (Sim: Maid, $ innuendo, didn’t lower rep/not defamatory)2. Made ref to P (Knuppfer: Young Russia article, didn’t obj’ly refer to P, facts don’t justify conclusion that wds capable of being def to P)3. Were published/disseminated (Crookes v Newton: Hyperlinks as footnotes, not re-pub of defam stmts); Defences: 1.Justif (total defence; actually true) (William: “Shamateurism”; boot $ rlvt to sting of libel)2.Absolute priv (parl and judicial proceedings, even if malicious/untrue): Hung(AP applies even when complaints don’t lead to proceedings)3. Qual priv (part imm’y, recip intrsts/duty to make/receive; applies even if DS untrue, NOT if malicious; prot of own, other’s intrsts, PI, CI; whistleblow): Hill(Court extended QP to docs about to be filed; BUT Ds conduct excessive, byd scope)4. Fair Comment (Recognizable as comment; which any RP could express; based on true facts; pertaining to matters of pub int; not malicious: WIC Radio: Radio discussion; obj test for honest expression; DS protected by FC defence – in PI, understood as comment, based on facts5. Responsible comm on matters of PI:Grant v Torstar(New defence to balance FoE and reporting in PI; test = PI & Rspnsblty) 6. Consent
SoP There is 1 civil SoP @ CL: proof on Bal/P
FH v McDougall(Res school sex abuse; credib imp; no corrob ev needed; 1 civ SoP = proof on Bal/P)
ELEMENTS OF NEGP has BoP for 1-5, D prove 6: 1. DoC 2. SoC 3. Causation4. Remoteness 5. Actual Loss (neg not act’ble per se vs. ITs – show loss/nature/extent) 6. Defences
DoC (legal issue)Dunsmore – Hardex; Manufacturer owes DoC to ultimate consumer; Dr adopted neg of M (didn’t re-test lenses); no contrib neg; Donoghue – D must take rsnble care to avoid acts/omiss he could RF as likely to injure ppl that he ought rsnbly have in mind at time of act (‘neighbour’)
Anns: 1.Proximity (RF that neg would cause harm = pf DoC) – BoP on P2.Policy (negate/ scope of DoC) – BoP on D
Cooper: Re-states Anns1a) RF’y of harm? 1b) Proximity? 2. Policy rsns to negate/limit DoC? (e.g. IL); OLA: basic DoC
*Is this est’d categ/highly analogous (manuf/consumer, etc.)*
Hill: DoC exists b/t POs & suspects, no policy rsns to limit, POs met SoC of rsnble off; tort of neg invstgn exists, not here
Duty to Act: Osterlind: No legal duty to take + action/no duty to rescue (boat rental drowning); GSA: Liab prot (exc GrNeg)
Matthews: Boat; Once D undertakes to rescue, assumes duty to rescue, must perform as RP would (brchd SoC but no caus)
Duty to Control Conduct of Others(special rltnsps/DoC):
Liab for Intoxd: Crocker: Drunk tubing; Only cases of special rltnps can impose duty to prevent harm; DoC owed (comm’l, profit; must take rsnble steps to prevent); phys not legal VAR
Social Host Liab: Childs: Rlnsp b/t social hosts and public not suff proximate to est pf DoC; hosts have no DoC to public unless conduct implicates them in creation/exacerb of risk
SoC (law fact)RP Test: Arland: Charge to jury to think what they would have done; accused personal characs/ inexp do NOT inform test; pro stds, circ’s DO (rsnble Dr, lawyer, etc.); look at specific facts, SoC can vary on context!
Factors in determining breach of SoC:
Probability/severity of harm: Bolton: Cricket ball out of bounds; higher risk of harm/higher prob of injury= higher SoC
Matharu: Golf/‘fore’; OLA; no liabil for risks willingly assumed; D took rsnble steps to mitigate risks (SoC met)
Other factors: Cost of risk avoidance (prop’y); Social utility
Causation – Link D’s SoC breach to P’s loss (fact conn/caus)
Kauffman: Escalator handrail unrelated on Bal/P to P’s injury, notcontributing cause, no causal link (D’s neg must = contributing cause of P’s injury for liabil; no “but-for” here)
Barnett: Tea/arsenic; doc breached SoC but on Bal/P didn’t cause death (would have died anyway; no “but-for” cause)
Material ContribWalker Estate: HIV/tainting; rather than strict “but for” test, ask whether neg conduct made MC to outcome – better for cases w/ diffic task of finding causation in human dec mkg (was D’s conduct sufficient cause of D’s injury?); Clements: H&W bike/nail; Factual cause king, MCT only justified where required by fairness (if imposs for P to prove causation on but-for; multiple tortfeasors, can’t tell who); not appropriate here, only 1 D, retrial w/ b-f test
NEG MISREP (wds: rptd harm, travel fast; careless vs acts)
Elements: 1. Stmt was neg 2. P relied on stmt 3. P suffered loss (policy concern: limit FoE; IL; dissem)
Hercules: D audit of $ stmt, Ps claim neg prep, econ loss; Modified Anns(for DoC): 1) Prox’y pertains to Rsnble Rel’ce (P show: D ought rsnbly foreseen P would rely on rep) 2) Policy balance (ben. of broad DoC: accuracy, outweighed by neg conseq’s: IL) RR/DoC negated by pol’y concerns of IL
Indicators of RR: D had $ intrst in respect of which rep made; D pro w/ special skill/knowl; Info provided in course of D’s biz; Info given delib’ly, not on social occasion; info given in resp to specific inquiry
LIABIL OF PUBL AUTH’SCLA: can sue gov, (excep’s: adjud/polit role/dcsns); more solvent (but $ed/HC or tax)
Bradley: Judge D protected by judicial immunity (special rule to protect), not liable for suspending P lawyer w/o jurisdiction
Just: Whistler car boulder; P can sue gov for operational decisions (DoC;//manner in which inspections carried out) but NOT policy decisions (no DoC, exempt from liability); policy must be rsnble, bf ex of discretionary power (vs. stat duty)
KLB:VL: Gov directly neg (stat DoC b/t gov & foster kids breached); gov not VL for harms by FPs (=autonomous, indep, private); VL can=fair comp, deter’ce; ≠ exc for emp’ee
Vicarious Liability (hold s/o resp for D’s conduct)
1) Rltnsp b/t trtfsrs & D suff’ly close (emplyr/yee)2) Tort suff connected to tfr’s assigned task, done w/in course of emplt?Sagaz: Lev of control over act’s; who provides equip? Worker hire own ICs? Mgr’l resp’s? ICs & //s more indep
BC v Imperial Tobacco: Gov can legislate in tort (Act passed allows BC to sue TCs for recov of HC costs); Court deferential; law policy-driven, in PI, valid, win
Third Parties and Motions to Strike (MtS)
R v IT: TCs bring in Feds as co-D, Feds bring succ’l MtS (std to meet = no rsbnle prospect of success); Feds protected:core gov policy; mrktg ‘lites’ addresses health = policy decision (no liability); in claims of neg misrep, reqts for pf DoC est’d if there is “special relationship” b/t parties, est’d where: D ought RF that P will rely on rep (reliance rsnble in circ’s: RR); Policy or operation? Nature of decision, who is making it
MISFEASANCE IN PUBLIC OFFICE(abuse of off/pwr)
Roncarelli: Use of state authority must be in good faith; malicious/sinister/delib conduct specifically intended to injure P is outside jurisdiction/scope of discretion = abuse of power
Odhavji Estate: Stat duty to cooperate breached; MPO action arise in 2 ways: 1) Conduct spec’y intended to injure P, know rules/ignore (Ronc)2) PO acts w/ knowl that action unlawful, likely to injure P Elements: 1. Delib/unlawful conduct in capacity as pub off 2. Aware unlawful/likely to harm P (subj)
NUISANCE LAW – based on intrusion of U&E
Antrim Truck: 2-part Test for private nuisance:
1)Substantial (severity of incursion on U&E, non trivial)
2)Unreasonable (to require P to suffer w/o compens’n) balance competing intrsts (severity of interf, charac of ‘hood, sensitiv of P, freq/duration of interf, utility of activity – focus more on P’s suffering, not D’s act)
PRODUCT LIABILITY Can arise in # of ways:
1) Unnecessarily dangerous design 2) Neg in manuf 3) Failure to warn re: dangerous conditions; Special DoC:
Hollis: M has DtW Cs of dangers inherent in use of prod which M has/ought to have knowl of; held liable for failing to warn; = ongoing duty, scope varies w/ risk; s/t M may satisfy duty to C by wrng via “learned intermediary”; would this P have heeded wrng of LI?LI ≠ shield from own neg (caus’n)
Class Action: Reid: Neg design/Ford failure to warn
Adv’s of CA: judic econ; improved AtJ; modify bhvr
Requirements (broad purposeful approach)
a)CoAb)ID’able class (2 or more) c)Common issuesd)Rep Pe) Class prcdgs pref for efficient resolution
DEFENCES IN NEG If P not resp at all, all Ds are jointly and severally liable; if P resp for any, Ds resp only for their portion; partial D (CN)apportionment
Contrib NegWalls: Gas stn fire, P entitled to “agony of moment” rule (conduct in face of sudden emerg caused by D, recognizes shock), P did what ordinarily prudent person might reasonably have done in emergency
Gagnon: No seatbelt; P has duty to protect self; law req’s e/o to exercise precautions that person of OP would observe; onus on D link P’s neg to dmg (rely on experts; P’s CN D’s liab)
Mortimer: Stair horseplay; only resp for dmgs that RP could have contemplated; D’s neg only actionable w/ respect to harm w/in scope of risk of offending conduct; P’s CN won’t limit recovery unless it is proximate cause of injury; landlord has continuing duty,apprtment // ° of fault: 60 Ldld, 40 City
Cempel: Hotsprings; P imprudent, bigger cause of inj but D more resp/blameworthy (breached stat duty – OLAprovides basic DoC); Neg Act req’s app’t be made on basis of blamew’ss NOT ° to which each person’s fault caused dmg
ApportionmentAberdeen: Assmt of ° of risk; apportionment on basis of nature/extent of depart from SoC of each:
1) Nature of duty owed 2) # of acts of neg committed 3) Timing of neg acts 4) Nature of conduct (indiff v delib) 5) Stat breaches 6) Gravity of risk 7) Extent of opp to avoid/prevent dmg 8) Whether conduct delib, unusual, unexpected 9) knowl 1 person had/should have had of conduct of another at fault
VAR = Complete defence; burden on D to prove P agreed (impl/explic) to exempt D from liab for dmg (vs. apprtmt leg)
Dube: P&D DD; Full VAR D only arises where clear that P, knew of virtually certain risk of harm, gave up right to sue
Inevitable AccidentRintoul: Presumption of neg, onus on D to prove failure(of service brakes) could not have been prevented by exercise of rsnble care and, assuming fail w/o neg, acc couldn’t have been avoided by rsnble care (exp ev)
Loychuk: Zipline; Waiver of Liab (full D); Unconscionability Test for WoL: 1) Proof of vast inequality arising out of ignorance/need of weaker 2) Substantial unfairness of bargain
-No power imbalance when P wants to doopt’l risky activity controlled by D, no PP reason to nullify WoL knowingly entered (refuse to give effect to E/LLC only if crim/fraud)
DAMAGESNom: Recog rts (no dmg); Compens: Pecun (tang. $ dmg), non-pec (pain/suffer), aggrav(compen for distress; D off’ve, repug); Punitive: (rare) punish (retro), deter (prosp’ve, sp/gen),denounce, restit (return what D gained); P has BoP to show loss/quantum on Bal/P, duty to mitigate
Andrews: of trial award must be justified by error of law or unrsnble estimate; lump sums efficient but hard to estimate (but ongoing assmt stressful/costly);Pec’y:Future care: Duty to be reasonable (not mitigate), home care OK, life expect. post-injury, conting’s of life, cost of spec equip; Lost earnings: Level of erng, length of work life pre-accident, contng’s; Non-pecun loss: $ for P/S, must be fair/rsnble (but always arbitrary!); $100G here (= upper limit for PI claims)
Hill: No cap on defamation dmgs, injury unique; general dmgs mostly non-pecun (reputation; no major $ dmgs, no job loss, etc.); aggr & pun dmgs awarded against D (malicious intent, late apology, post-trial misconduct); strong deference to trier of fact on dmg award unless there was error of law or if they are so grossly disprop so as to shock Court’s conscience
Remoteness: Test = RF’y (what could’ve been in rsnble contemp; can cause injury w/o being rspble; legal conn/caus)
Foreseeability Test: Wagon Mound #1: D resp for probable conseq’s/harm; natureof dmg must be RF (D-friendly)
Hughes: Paraffin; type/extentof inj, manner it occurred in needn’t be probable, as long as kind of inj probable (burn frsble, just happ’d in diff way, more severe); P-frndly, WM1
Thin Skull: Smith: Lip/cancer; remoteness does not go to particular way/severity injury manifests in P, D presumptively liable even if results more serious (take victim as is)
Marconato: Crash; Phys injury was RF, D liable for all conseqs (incl. major pers’y change (pre-disposed) – thin skull)
Wagon Mound #2: Threshold of RF shifts from probable to possibility(more P-friendly) of “real risk”; Test for Rem’ss = What RP would see as reasonableposs’y flowing from neg
Assiniboine: SD v Gas; It’s enough to fix liabil that one could foresee ingeneral waythe sort of thing that happened (extent of dmg and manner of incidence need not be foreseeable)
Mustapha: Psych injury v upset (neg must have impact suff’t to be compensable); ° of probability that would satify RF = real risk; RR engages issues of probab’y (WM1) not just possb’y (#2); Was it foreseeable that pers of ord. fort would suffer inj? No, too unusual; not subj (history, culture), PoOF