Torts CAN - Prof B. Goold
Fall 2010 Sara Li
Contents
Foundations & Objectives of Tort Law 2
Basic Principles of Liability for Intentional Torts 4
Assault & Battery 5
Battery 6
Sexual Battery & the Role of Consent 6
False Imprisonment 8
Malicious Prosecution 8
Intentional Infliction of Nervous Shock - Wilkinson 9
Stalking, Harassment, & Discrimination 10
Intentional Interference with Land 11
Intentional Interference with Chattels 13
Intentional Interference with Economic Interests 14
Intentional Torts: Defences 17
Remedies in Intentional Torts 21
Defamation 23
Privacy 25
Foundations & Objectives of Tort Law
Criminal / TortMain function / Punish & deter criminal / Compensate victim for losses
Administration / Community, government take action against criminals to maintain social order / Victim takes tort action against defendent
Burden of proof / BARD - heavy / Balance of Probabilities - lighter
Punishment / Monetary, liberty (jail) / Monetary
Focus / Punishing defendant
Protect community / Compensating victim
Assert interests of victim
Contract / Tort
Obligations / Imposed by parties themselves / Imposed by circumstances
Who can you sue? / Enforcement is limited by privity / Anyone...
Compensation / Forward-looking (what would you have gotten had the K been completed?) / Backward-looking (where were you before the wrong happened?)
· Other functions of tort: punishment, deterrence, accountability, corrective justice, appeasement, vengeance, education
· Who is worth suing?
o Insured defendants
o Large corporations & governmental institutions
o Wealthy people
o Corporation/employer can be sued personally if they fail to train/supervise their employees or employer can be sued for vicarious liability if the tort is committed within the scope of Def's work
· Three ways of dealing with definition of Torts:
o Torts consists of intentional torts, negligence, etc
o Torts deals with private wrongdoings, other than those covered by a contract
o Define Torts by aims and objectives: compensating plaintiffs for private wrongs committed by other individuals
· Conduct & loss are both important considerations in tort
· Moralist view – idealistic, ethical principal of personal responsibility for wrong
o Consequentialist vs non-consequentialist (do consequences matter?)
· Instrumentalist view – what are the purposes of tort law?
· Descriptive account - what tort law actually does:
o Corrective justice - is about relationships between parties (rights & duties - A's right not to be injured correlates to B’s 1st order duty not to injure. B also has a 2nd order duty to repair. This duty doesn’t only arise when B is morally blameworthy, it arises whenever A’s right not to be injured is violated. (Coleman))
o Compensation
· Why? Deterrence, stable society, prevent vengeance/retribution, rule of law, corrective justice
· Why not? Does tort end up holding the right ppl accountable? Mostly ignores distributive justice
o Punishment
· Why? If left unpunished, it's like approving the wrong. Punishing acknowledges personal choice, autonomy, & dignity
· Why not? Crim already deals with punitive side; who ends up w/ punishment?
o Deterrence - General, Specific, Market deterrence
· Why? Ppl may change their behavior to avoid tort suits
Why not? Doesn’t work because most ppl don’t know enough about tort law, unreflective conduct, liability insurance
o Psychological dimensions
· Allowing the P to get revenge non-violently; therapeutic for P
o Education
· Changing larger society's behaviour, not just potential Defs
o Ombudsman role
· Holding powerful ppl accountable - anyone can bring tort action
· What tort law SHOULD do (according to some):
o Distributive justice (critique of corrective justice)
o Retributive Theories of Tort Law
· Recognizing & responding to moral wrongs
· But: some torts do not deal with moral/blameworthy wrongs
· Intention → recklessness → negligence → strict liability
· Most tort actions to do with negligence & strict liability (ie not a strict moral wrong)
o Economic Theories of Tort Law
· Richard Posner - all law should minimize the cost of accidents - need to allocate resources efficiently
· Ignore morals & ethics - tort liability should be imposed where it leads to efficient allocation of resources
· Personal injury & accidental death – large area of tort but compensation is not always complete
o Government programs: worker’s comp & auto insurance
o Private 1st party insurance – life & disability
Readings:
Coleman: “Theories of Tort Law”
· Compensation reflects corrective justice
· Corrective justice views tort law as 1st order duties (duties not to injure) & 2nd order duties (duties to repair - arises from breach of 1st order duties)
· 2nd order duties come from corrective justice
Weinrib: “Corrective Justice in a Nutshell”
· Corrective justice is restoration - puts P back at square one
· Distributive justice - takes into account allocation of resources
· Restitution (make sure D hasn't gained from wrong) vs compensation (make sure P hasn't lost from wrong)
Basic Principles of Liability for Intentional Torts
Intentional Torts / Negligence Torts· very precise & narrow rules
· not covered by liability ins
· "settled", static
· More well known, finite categories of duties
· History: Writs (a series of actions that one could go to the crown with) → nominate torts → duty
· Convention, rigid, longer history, linked to criminal law, less policy arguments / · general rules - reasonableness & foreseeability
· Sometimes covered by liability ins
· "less settled", still changing
· Broad range of duties owed
· History: general principle of neighbourhood (Lord Aitkin in Donoghue v Stephenson [1932] → who is my neighbour & how do I owe a duty to them?
· Broad principles - reasonableness, foreseeability, duty of care, policy arguments, current social attitudes
· Indefinite # of P's
Meaning of intention
Plain meaning: A intends X when he wanted X to result from his act
o Motive doesn't matter - no such thing as good or bad intent
Constructive Intent:
o A intended X, but did Y, and Y was a substantially certain outcome of A's act
o Can treat this "as if" A intended Y
o Issue: how substantially certain must Y be?
Transferred intent:
o A means to do X, which is unlawful/wrong, but ends up doing Y
o No substantial certainty of Y, but A is morally culpable and Y's victim is innocent
o Transferred intent may move from one intentional tort to another (eg A shoots C but hits B's car - battery → trespass to chattels)
· Def may be incapable of forming intent if he doesn't understand the nature & quality of his act (mental disability or infancy)
· Intention vs volition - must have volition for tort action to succeed
o No volition during extreme duress - ie no other option available (Smith v Stone and Stone v Gilbert)
· Intent vs motive - motive doesn’t matter, otherwise victim would be deprived of compensation
Issues with intentional torts
· Some argue negligence covers everything
· Can end up penalizing morally blameless (for objective intention)
· Prior fault - courts not sympathetic to these cases.. But what about alcoholism or drug addiction?
Readings
Epstein: "Intentional Harms"
· Strict liability is not amoral - it is a neat, unified theory of liability
· Makes ppl more moral
· Only asks: is there an injury & a cause?
Simmonds: "Epstein's Theory of Strict Tort Liability"
· Torts isn't entirely free of culpability
· Not possible for neat, unified theory of liability
Assault & Battery
Assault
· Direct & intentional action that causes someone to apprehend immediate harmful or offensive bodily contact
· P doesn't need to be fearful - tort protects brave & fearful
· Elements:
o Direct - the act must be directed at P
o Intentional
· Apparent intent is enough (objective test)
· Intent is presumed, Def must prove no intention/negligence (reverse onus of proof)
§ Why reverse onus? Because the act is morally wrong, violates P's right to autonomy
3. Cause apprehension - "but for" causation
4. Immediate - future threats do not suffice, apprehension of immediacy must be reasonable - but capacity matters (Ahluwhalia - spousal abuse - set husband on fire - provocation/mentally unfit)
5. Harmful/offensive
· Some rules of assault that are being revised or where exceptions are created:
o Threats of future violence do not count (Holcombe)
o Mere words cannot amount to an assault (words + circumstance can (Ireland))
o Passive conduct cannot amount to an assault
o Conditional threats - threat of violence + condition that the speaker has no right to impose + compliance would lead to safety = assault (eg I will kill you if you take me to court)
Readings
Holcombe v Whitaker
· D threatens P multiple times with the last threat outside her residence - "if you take me to court I will kill you"
· Words along can't constitute assault, but words & circumstances can
R v Ireland - (covers most things on assault) from England, Cdn Courts have yet to decide on this case
· D makes silent phone calls to P
· Words alone CAN constitute assault
· So can LACK of words in some circumstances
· Psychiatric injury can be compensated in torts (R v Burstow)
Battery
· Direct, intentional physical interference with the body of another which is either harmful or offensive to a reasonable person
· Elements:
o Direct (poisoning food, setting traps does not fulfill this requirement)
o Intentional - presumed that you intended the act, reverse onus again
o Physical interference - some form of physical contact (not necessarily skin to skin)
· P does not have to be aware of it at the time
· Eg Malette v Shulman (1990) - blood transfusion
4. Harm - Malette: right to refuse treatment, patient makes the final decision. Recognizing right to self determination
· Malette suffered no physical injury, but there was physical interference
· Why battery in tort?
o To protect the rights of bodily integrity & personal security (autonomy & dignity)
o Symbolically asserts the right to dignity (thus actionable per se)
Readings
Bettel v Yim (covers most things in battery)
· Def shook P by collar, accidentally head-butted P's nose
· Def is liable for unintended injuries, rules of foreseeability do not apply
Sexual Battery & the Role of Consent
· No distinct tort of sexual battery in Canada - is dealt with according to traditional rules of battery
· Sexual contact usually not offensive, courts were unwilling to rule on this area of life
· Non-Marine Underwriters, Lloyd's of London v Scalera:
o P is not required to prove lack of consent- the onus is on def to prove that there was consent
o McLachlin J: would have been wrong to recognize a new tort of sexual battery requiring the P to prove a lack of consent
o Usually, tort law view parties as equal - here, MacLachlin rejected that by recognizing the power imbalance that usually exists btwn P & Def
o Constructive consent can be used (inferring consent from behaviour & circumstances) - but is an objective test
o Victory for feminists because court rejected a subjective test for belief, & thus an honest, but unreasonable belief is no defence
· Problems with Scalera?
o Unclear as to whether def needs to adduce evidence about reasonable efforts to get consent
o Objective approach → plaintiff's perception is irrelevant if defendant can show reasonableness
o Plaintiff may be blamed for behaviour leading to defendant's reasonable belief of consent or for failing to resist
o Premised on common sense ideas about 'normal' behaviour or responses to unwanted sexual advances
Tort law & Sexual Battery?
· Advantages:
o Therapeutic effects
o Victim has control over trial (producing evidence etc)
· Disadvantages:
o Civil litigation can be costly, stressful, and elongates experience (may outweigh therapeutic benefits)
o Defendant with lots of resources/good defence counsel → further victimization
o Even if victim wins in trial, may not obtain much in damages/costs or enough to cover litigation costs
· Should there be a new tort of sexual battery?
o Could take out issue of consent all together as in crim law - implied/constructive consent is no defence - must have express defence
o Eg. Ewanchuk [1999] 1 S.C.R. 330: Crim law - complainant decides on the issue of consent (just has to say no consent). Would this create convictions where defendant genuinely believed consent was given? Yes, but right to bodily integrity trumps rights of morally innocent persons not to be convicted. Onus is on defendant to make absolute certainty of consent. The only defence possible is that the defendant took reasonable steps to ensure consent is given.
· Controversial! What about presumed innocence?
Readings
Non-Marine Underwriters, Lloyd’s of London v. Scalera
· Insurance doesn’t cover intentional acts- more importantly, def has to prove consent in sexual battery
Sansalone v. Wawanesa Mutual Insurance Co.
· Same as above
Adjin-Tettey: “Protecting the Dignity and Autonomy of Women: Rethinking the Place of Constructive Consent in the Tort of Sexual Battery”
· Constructive consent is harmful to victims of sexual battery- consent should be "voluntary and affirmative" to be considered valid
· Criminal prosecution serves many purposes, but for the victim, can even inflict more trauma & many do not feel justified. Also standard of proof is higher.
· Allowing constructive consent to be a defence could feed gender/racial/other stereotypes
· "Not all honest beliefs are morally innocent"- beliefs could be based on harmful stereotypes
Feldthusen, B. (1993) “The Civil Action for Sexual Battery: Therapeutic Jurisprudence?"
· What purpose does civil lawsuit serve for victims of sexual battery?
o Could be corrective justice, vindication, appeasement, retribution
· Criminal trial focuses on accused- providing them with fair trial; can be more harmful to victim than helpful; burden of proof BARD
· 4 cases where victim sues:
o Police/crown do not press criminal charges