Introduction to Torts

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 / Negligence
Long 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: