1

Goals of Tort Law 4

Identifying those Responsible for Harm 5

Joint Tortfeasors 5

Joint and Several Liability 5

Vicarious Liability 5

Sagaz Test to establish employer-employee relationship 5

Salmond Test for Vicarious Liability: 6

Enterprise Risk Test [Bazley v. Curry] 6

Contributory Negligence 6

Trespass Torts 7

Development 7

Intent 8

Torts of Intentional Interference with the Person 8

Common Elements: 8

Battery 8

Assault 9

False Imprisonment 9

Hybrid Tort: Intentional Infliction of Mental Distress 9

Defences to Trespass 10

Accident 10

Volition 10

Capacity 10

Self-Defence 10

Defence of 3rd Party 11

Consent 11

Medical Consent 11

Onus of proof in Trespass Cases 12

Sexual Wrongdoing and Trespass Torts 12

Limitation Periods: 14

Discoverability Rule 14

Ultimate limitation rule: 14

Negligence 15

Origins 15

Policy Framework 15

Modern Negligence 15

Core Elements to prove: 15

Potential Defences for Negligence 15

Limiting Factors/Control Devices for Negligence Claims 16

Duty of Care 16

Expansion of Duty of Care 16

Duty Test in Canada 17

Misfeasance vs. nonfeasance 17

Type of Duty: Duty of Affirmative/Positive Action 18

Duty to Warn – Manufacturers 19

Duty to Warn – Medical Practitioners 20

Duty to Rescue 21

Standard of Care 21

Indices of Reasonableness 22

Custom 22

Statutory Standards 23

Professional Standards 23

Reasonable Person Test 24

Special Standards: Children 24

Defences 25

Causation 25

Traditional Test: “But For” 25

When ‘But For’ Test Doesn’t Apply: 26

Inference of Causation 26

Alternative Liability 26

Market Share Liability 26

Material Increase in Risk Test 27

Causation in Context of Duty to Warn 27

Remoteness 27

General Info 28

Type of Damage 28

Thin Skull Rule 29

Crumbling Skull Rule 29

Intervening Factors/Events: Novus Actus Interveniens 29

Medical Errors 30

Pure Psychiatric Harm 30

Pure Economic Loss 31

Negligent Misrepresentation 32

Negligent Provision of Services 33

Negligent Supply of Dangerous Products 33

Government Liability 34

Operational v. Policy Decisions à Anns/Kamloops, refined in Just 34

Operational 34

Policy 34

Cooper test à analysis of govt. liability 35

The Immunity of Mothers 35

Intro to Strict Liability 36

Nuisance 38

Goals of Tort Law

·  Compensation

o  Both essentialist and instrumentalist aspects

o  Corrects an imbalance in the rel’ship b/w tortfeasor and injured party, compensates for losses and any future cost (essentialist)

o  Loss Shifting

§  Allocates loss to the wrongdoer (instrumentalist)

o  Loss Spreading/Distribution

§  Insurance

·  In practice, most compensation isn’t paid by the tortious individual alone. It’s spread to insurance companies, who use the combined assets of all insured parties (through premiums) to cover the cost

§  Increased prices

·  Businesses might distribute costs thusly to the consumer

§  Ensures compensation, but doesn’t necessarily restore the rel’ship

·  Punishment

o  More instrumentalist, but can be employed by essentialists as well

o  Infrequently, courts may award punitive damages in addition to compensation

o  The punitive power of a damage award is questionable (given insurance etc.)

o  Awarded where ∆ behaviour was particularly egregious

o  Can damage ∆’s reputation – bad publicity

·  Deterrence

o  Specific

§  Preventing a specific individual from behaving this way in the future

§  Effect may be mitigated by insurance

§  May affect insurance premiums, or even ability to get insurance

o  General

§  Instill fear of tort liability in general public, thus potentially forestalling tortious acts

§  Questionable, since there is additionally often the possibility of harm to oneself, and/or criminal charges, so the addition of tort liability might not really deter someone

§  Punitive damages have a definite deterrent intent

o  Market

§  Put the cost of accidents onto manufacturers, especially those who engage in substandard conduct

§  Force to increase prices to deal w/ costs of compensation

§  Costs will hopefully lead to increase in quality (to remain competitive) or departure from the market

§  Bad implication, though, that cheaper products are actually/always safer

·  Psychological/public vindication

o  Venue for victims of wrongdoing to get accountability without vigilantism

o  Therapeutic function, theoretically

§  In this sense, corrective

§  Relates to essentialist view

·  Education

o  Teaching reasonable standards of conduct

§  But questionable whether this ever really works

§  Maybe educational specifically for lawmakers.

·  Ombudsman Role

o  Tort law ostensibly allows the poor and powerless to challenge the rich and powerful

Identifying those Responsible for Harm

Joint Tortfeasors

·  Four Types (quoted from Osborne):

o  “One who instigates or encourages another to commit a tort, and the person who commits it”

o  “An employer and an employee…in respect of a tort committed by the employee within the scope of his employment”

o  “A principal and agent…in respect of torts committed by the agent within the actual or apparent authority of the agent”

o  “A residual fact-specific category covering other instances of a concerted action by two or more involving the commission of a tortious act.”

§  Here the basis is guilt by participation, not by association.

·  JTs must be acting in concert; don’t have to commit tort together

·  Two men hunting together (even with an agreement to share the catch) = too broad a relationship, don’t count as joint tortfeasors when one negligently shoots someone [Cook v. Lewis (1951)]

Joint and Several Liability

·  Joint tortfeasors can be held liable together, and also separately (Negligence Act)

·  If four tortfeasors are severally liable, p must seek appropriate percentage of damages from each party specifically

o  If one is judgement-proof, or if one won’t pay, etc., this can become problematic for the p

·  The Negligence Act allows all parties to be sued in one action

o  Court will assign a global amount of damages, without specifying who pays what

o  S. 4(2)(a) allows p to seek all compensation from one ∆

o  That one ∆ can undertake enforcement proceedings, under s. 4(2)(b), to recover the amount owed by each of the other ∆s

·  Policy consideration: Stops the victimization of p

o  If some percentage of award can’t be recovered, it’s fairer for one of the tortfeasors to pay more than his share, rather than p being unable to get full compensation to which he is entitled

·  Cook v. Lewis à not joint tortfeasors, can’t be found jointly and severally liable

Vicarious Liability

·  The responsibility of one person for the tort(s) of another by virtue of rel’ship b/w them

·  General Points:

o  Strict Liability: no fault necessary to be held vicariously liable

o  Can be intentional or non-intentional torts

o  Must establish sufficient relationship with tortfeasor, i.e.

§  Employer-employee (not independent contractor)

§  Principal-Agent (for acts w/in “actual or apparent authority of the agent”)

Sagaz Test to establish employer-employee relationship[1]

·  Distinguishes employees from independent contractors by considering 3 factors:

o  Level of control

o  Provided own equipment?

o  Degree of financial risk

·  Relative weight is context-specific

Salmond Test for Vicarious Liability:

·  Requisite rel’ship b/w tortfeasor and party claimed to be vicariously liable?

o  Commonly employer-employee [see Sagaz test above]; also principal-agent

·  Was the tort committed in the course of employment?

o  Was act authorized by employer?

§  (i.e. if an employee has a car accident when employer authorized them to drive)

o  If unauthorized, was the act so connected with an authorized act that it can be regarded as a “mode” of carrying out the authorized act?

Enterprise Risk Test [Bazley v. Curry]

·  Are there precedents that allow an unambiguous decision?

·  Consider policy goals of vicarious liability

o  Compensation (fair recovery)

o  Deterrence

·  5 Factors enumerated to test whether the enterprise materially increased the risk of tortfeasance:

o  Opportunity the pos’n gave the employee to abuse pwr

o  Extent to which the wrongful act furthered employer’s ends (thus making act more likely)

o  “Extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise”

o  Amount of power given to employee over victim

o  Vulnerability of (potential) victims to wrongful use of employee pwr

·  Employed in EB v. Order of the Oblates of Mary Immaculate in the Province of British Columbia [2005, SCC]

o  Future cases will be decided with far more weight on the precedents and the 5 factors than on the policy considerations

o  Critics see Oblates as a setback from Bazley v. Curry

§  Focus on specific task requirement means employers are far less likely to be found vicariously liable

Contributory Negligence

·  When failure of p to take reasonable care for own safety contributes to the accident/loss

·  Common Law:

o  Contributory negligence used to be a potentially complete defence, leading to no liability for ∆

o  Courts historically aimed to find one clear wrongdoer, and if p contributed to his injury he might be considered undeserving of compensation

o  Rule of Last Clear Chance: whoever had the last clear opportunity to avoid the accident was held fully responsible for the accident

·  Current: Proportionality of Fault

o  ∆ liability should be proportionate to level of culpability/wrongdoing

o  Where multiple ∆s, liability assigned between ∆s according to fault, if possible to ascertain (otherwise evenly distributed among ∆s)

o  When p is contributorily negligent, divide damages proportionately b/w ∆ and p (i.e. damages are reduced by amt p found to have contributed)

o  Can have serio us effects where, as often the case, p doesn’t have 1st party insurance

·  BC Negligence Act: if contributory negligence is found, p ability to recover is altered:

o  p cannot claim all damages owed from one ∆, has to specifically go after each ∆

o  BC is the only jurisdiction in Canada where this is the case

·  3 ways in which contributory negligence can occur:

o  p negligence = cause of the accident

o  p negligently puts himself in pos’n of foreseeable harm from ∆’s negligence

o  p fails to take protective measures in face of foreseeable danger (i.e. not wearing an available seatbelt) (before wearing a seat belt was req’d by law, not wearing one could still count as contributory negligence)

·  If p loss would have been less severe had precautions been taken, contributory negligence will lower damages

o  Assessment is not, however, made on the basis of how much each party contributed to the harm, but on the ‘comparative blameworthiness’ of their conduct

o  i.e., in seatbelt example: p injury would have been less if wore seatbelt, but injury itself was consequence of ∆ wrongdoing. Primary wrongdoer pays more.

Trespass Torts

Development

·  Origins are in common law of Writ of Trespass

·  Initial Requirements:

o  Needs to be intentional and direct

o  Actionable without damage or fault (No concern with ∆ state of mind)

o  Strict liability, proof of damage not necessary

o  p merely had to prove ∆ had done the act, not prove intent.

o  Consent was a defence because there was no force involved

o  Claims had to be covered by the existing Writs, which didn’t cover indirect harm or acts of what we’d now call negligence (ex. where p put themselves in care of ∆)

·  Trespass on the case: Origins of modern day negligence

o  Developed as a new form of action for indirect/consequential injuries, non-forcible damage

o  Proof of damage was required

o  Loose fault requirement

o  ∆ had to be found at fault either by wrongful intent or negligence

·  Development of Fault:

o  The Highways Exception: Motorists can only sue for negligence (trespass to case), not trespass

o  The onus is on the p to prove ∆ was negligent: no liability unless ∆ was at fault, even when the injury is directly inflicted.

o  Rationale: there is reciprocal risk involved in going on the roads and it would be wrong to hold defendant liable for an accident unless they took an unacceptable risk

o  This idea spread to the rest of tort law, where fault is required even for direct injury

·  Canada is unique in that many differences between trespass and negligence are still relevant

o  Indirect interference in Canada is only actionable in negligence

o  A trespass action can be negligent or intentional

o  Directness requirement stems from goal of trespass torts to protect the security of the person

o  Explains why there is liability without damages: Action is inherently wrong

Intent

·  Constructive

o  Aka imputed intent

o  Action committed with intent of bringing about the specific circumstance that arises

§  i.e. injuries caused with actual intent

§  Or, un-sought consequences which are substantially certain to arise from ∆ conduct

·  i.e. if a person shoots into a crowd, and random person is injured – substantially certain that someone would be injured.

·  Transferred

o  When a third party, who ∆ did not actually intend to injure, is injured instead of the original target

o  Can sometimes fall under constructive, but isn’t always applicable, where ∆ couldn’t be substantially certain the third party would be injured

o  Liability is justified based on “serious moral culpability” of ∆, and complete innocence of p

o  ∆ must typically understand the “nature and quality” of the act to be found liable

§  If ∆ knew what he was doing but didn’t know it was wrong, still liable.

Torts of Intentional Interference with the Person

Common Elements:

·  Forcible – application of force against p person/property (goods or land)

·  Direct – force must be directly applied to p person, land or chattels

o  “Would the result have occurred had it not been for the intervention of another independent agency?” (Lewis Klar, Tort Law, 4th ed. at 30)

·  Voluntary - ∆ conduct must be voluntary

·  Intentional or unintended/negligent

o  Intent: actual or constructed including recklessness

o  Or intentional contact/interference – not to cause harm/damage

·  Fault

o  p not req’d to establish ∆ fault as part of prima facie case

·  Actionable per se – contact/interference inherently wrongful