LAW 430: TORTS - Amazon S3

100 Pages·2007·1.35 MB·English

by  Jennifer Ludbrook

LAW 430

TORTS

Robertson
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TRESPASS TO THE PERSON (INTENTIONAL TORTS)
 All torts based on trespass to the person must be wrongful in order to be actionable.
 Liability in all intentional torts is based on fault, although fault does not necessarily
presume or require knowledge of the wrongfulness of one’s act.
 The onus of proof for all intentional torts lies with the defendant, who must disprove
intention once the elements of the tort have been proved by the plaintiff.

BATTERY

Definition: The intentional application of offensive or harmful physical contact to a person.

ELEMENTS OF BATTERY:
(a) Intent –
 An intentional act occurs when the defendant desired the consequences or ought to
have been substantially certain that they would flow from the act.
 For the tort of intentional battery, the D must have intended an offensive physical
contact with the P. The D need not have intended to harm or injure the P, although
in most battery cases there is an intention to injure.
 Tort actions requires that the action was voluntary.

(b) Harmful or Offensive – The amount of harm is decided on the basis of the injuries
suffered by the plaintiff. It is not required, however, that the harm be physical –it may be
simply “offensive”. To determine what constitutes “offensive” contact the court applies
the “reasonable person” standard. The court looks at the distinction between “friendly”
and “hostile” behavior.

(c) Physical Contact – In order to sue for battery there must be physical contact, however it
is not necessary that that contact be direct. Other objects may be used to cause the
contact to occur. In any case the physical contact must directly result from the
defendant’s act. For example: spitting, breathing on someone (second hand smoke),
shooting someone, turning off life support without consent, throwing something at
someone causing, Swanson v. Mallow.

(d) Capacity - In order to have the capacity to commit a battery, the actor must be capable of
appreciating the nature and consequences of the act. May be affected by age or mental
state.

(e) Hostility – Hostility is shown if one intends to cause harm or acts unacceptably in the
circumstances. Contact that occurs in the ordinary course of daily life is not hostile.
Hostility is not necessarily binding in Canadian courts, but is persuasive.

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(f) Avoidance- Plaintiffs are expected under most circumstances to leave if they can in
order to avoid the offensive contact. This does not apply, however, to a private residence
where an owner is not expected to flee his or her own home in order to avoid such
contact.

MEDICAL CONSENT

Allan v. New Mount Sinai Hospital
 P went for surgery. She asked the D not to administer the anesthetic to her left arm, which
he did anyway. During the operation the needle slipped out causing an abnormally severe
reaction. The D properly administered anesthetic and was not negligent. P sues for
battery.
 The administration of an anesthetic is a surgical operation and constitutes battery unless
the anesthetist is able to establish that his patient has consented to it. In this case, the P did
not consent. Without consent, either written, oral or implied, no surgery may be
performed.
 It is the patient, not the doctor who decides whether surgery should be performed, where
it will be done and by whom it will be done.
 Despite the best of intentions, when a patient is treated without consent it is considered
battery.
 A medical professional may be sued for battery for administering procedures to which a
patient did not give consent, written, oral or implied.
 Whether or not the doctor knew that his actions would cause harm is irrelevant.

PHYSICAL CONTACT

Swanson v. Mallow
 While engaged in picket duty, the Ds surrounded a MacDonald's delivery truck and
sprayed a substance into the truck's air intakes. On each occasion, the P was a passenger in
the truck. She claimed that the substance had entered the cab and caused her injury.
Among other things she lost her voice and was unable to work.
 A non-physical action may constitute battery where the action was (a) intentional and (b)
involved physical or offensive harm. That is, direct physical contact is not a necessary
condition for battery.

HOSTILITY / EVERYDAY CONTACT

Cole v. Turner
 The least touching of another in anger is battery.
 If two or more meet in a narrow passage, and without any violence or design of harm,
the one touches the other gently, it will be no battery.
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 If either of them use violence against the other, to force his way in a rude or inordinate
manner, it will be a battery; or any struggle about the passage to that degree as may do
hurt, will be a battery.

Objective test: What would a reasonable person consider acceptable?

Wilson v. Pringle
 One schoolboy causes injury to another by pulling his school bag off of his shoulder.
 Was there was malicious intent by the defendant, and (b) is the defendant’s behaviour
considered to be acceptable in the circumstances?
 Certain conduct, deemed generally acceptable by society, will not constitute a hostile act,
and will not be considered a battery.

SEXUAL WRONGDOING

Sexual contact constitutes a battery, for which a defendant may be held liable because it is (a)
direct, (b) offensive, and (c) physical. Sexual misconduct can also constitute a breach of
fiduciary duty, or a tort other than battery such as assault.

Non-Marine Underwriters v. Scalera
 A P brought an action against 5 B.C. Transit bus drivers, including the D, arising out of
various alleged sexual assaults. The allegations included battery. The D owned a
homeowner’s insurance policy that provided coverage for “compensatory damage
because of bodily injury” arising from the insured’s personal actions excepting “bodily
injury or property damaged caused by any intentional or criminal act”.
 All sexual contact is deemed to be offensive for the purposes of battery.
 An insurance company will have no duty to defend a person in a sexual battery case,
regardless of concerns such as guilt/innocence.

INTENTION

Newhook v. K-Mart Can. Ltd.
 The P was observed by a K-Mart security guard swapping price tags. She was charged
with fraud and banned from K-Mart for 1 year. At trial the P was acquitted. After the
proceedings the P approached the security officer, grabbed her arm, and demanded to
know when she would be allowed back into the store. The security officer sued for battery
against the P.
 A person may be held liable for battery where there is an exchange that produces harmful or
offensive contact, even though the defendant did not intend to cause harm.
 Given the continued animosity between the parties, the court finds that the action taken
by the plaintiff was done in anger and was therefore a battery.

Garratt v. Dailey
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 The P alleged that the D, age 5, pulled a chair out from under her as she sat down. The D
claimed that while the P was in the house he had moved the chair in order to sit in it, and
that when the P returned she sat down not realizing that it had been moved.
 Intent does not refer to intent to cause harm rather the intent to produce the physical
contact. Intent means that either the defendant intended to produce that contact or knew
with substantial certainty that the contact would occur as a result of his actions.
 In order to be held liable for battery the defendant must have the capacity to appreciate
the nature and consequences of the act.

CAPACITY

Tillander v. Gosselin
 The infant plaintiff (age 3), lived on an adjoining property to the infant defendant (also age
3). The P’s mother had placed her in a baby carriage in an enclosed area adjacent to their
home. The D entered the area and removed the P from her carriage and dragged her over
100 feet on to the Gosselin property. The P sustained a fracture of the skull, multiple
abrasions and contusions and suffered some brain damage.
 Is a 3 year-old capable of forming an intent to commit battery and therefore be held liable?
 In order to be held liable for battery the defendant must have the capacity to appreciate
the nature and consequences of the act.
 A child of 3 years can not be guilty of negligence given that such an infant is considered to
be lacking in sufficient judgment to exercise that reasonable care that is expected of one.

Lawson v. Wellesley Hospital
 The plaintiff, a non-psychiatric patient of Wellesley Hospital, sustained injuries as the
result of an attack by a psychiatric patient.
 A person who, by reason of mental illness, is incapable of forming the intent to assault a
person, he is not liable in an action founded upon that assault.

Gerigs v. Rose
 The D shot a police officer. A psychiatrist testified that at the time the D did not
understand the moral consequences of his actions. The D did understand the physical
consequences of pulling the trigger. That is, he knew that pulling the trigger would fire
the gun.
 It is not necessary that a person understand the “wrongfulness” of his or her act to be
found liable for battery. That is, mens rea is not required for tort action. It is only required
that the defendant understand the physical consequences of his or her action.

ONUS OF PROOF

Cook v. Lewis
 The respondent was shot in the face by bird-shot while hunting. The appellant and
another member of his party admitted discharging their guns in the area at practically the
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same time but not at the same bird. The jury found that Lewis had been shot by one of
these two hunters but were unable to say by which one. They also found that the injuries
were not caused by the negligence of either. The action was dismissed by the trial judge
but the Court of Appeal for British Columbia ordered a new trial.
 The onus of proof of intention falls on the D. That is, it is not up to the plaintiff to prove
the defendant's intent to produce the physical contact. Instead, intention is presumed, and
it is up to the defendant to disprove it once the plaintiff has established the elements of the
tort.

ASSAULT

Definition: Intentionally creating in another person a reasonable apprehension of an imminent
battery upon that person.

ELEMENTS OF ASSAULT:
(a) Intent – Either the defendant must intentionally create apprehension or know with
substantial certainty that apprehension is a reasonable result of his or her actions.

(b) Reasonable Apprehension – Apprehension in tort law means that you anticipate that
something is about to happen. Apprehension and fear are not the same thing. You may
not be afraid in a situation but as long as you know that something is going to happen
assault has been committed. However, fear (or lack thereof) may affect the amount of
damages. Apprehension is analyzed on by the “reasonable person” standard. That is,
would a reasonable person have been apprehended?

(c) Imminence – It is difficult to determine at what point a threat become imminent (time
issue). It may come down to the possibility of avoiding the situation. If the defendant
believes that the assault may occur at any moment that is considered imminence (ie the
case of battered women).

(d) Physical harm – The tort of assault does not require there to have been any actual
physical contact or a carrying out of the threat.

(e) Directness – the apprehension of harm must be caused by the direct act of the
defendant.

(f) Upon that person - It is not an assault to feel apprehensive for someone else’s sake. For
example, if a person threatens to harm your children that is not an assault against you.

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(g) Means – It is not required that the D has the means to carry out the threat, only that the
plaintiff reasonably believes that the D has the means to carry out the act and that a
reasonable person would have felt threatened.

MEANS

Stephens v. Myers
 The P, who was acting as chairman at a parish meeting, sat at the head of a table at which
the D also sat. The D became disruptive and was asked to leave. The D advanced toward
the P with his fist clenched. The D was stopped before he came into striking distance of
the P. The D argues that he did not have the means to carry out the threat at the time that
he was stopped, and therefore there is no assault.
 There must, in all cases, be the means of carrying the threat into effect for there to be
assault.
 In this case, the court held that the D did have the means to carry out the threats.

INTENTION TO CARRY OUT

Tuberville v. Savage
 The defendant contends that the plaintiff provoked him when he put his hand on his
sword and said "If it were not assize-time, I would not take such language from you". The
D maintains that the blow that the he delivered to the P (in which the plaintiff lost his eye)
arose out of the threat of imminent battery and was therefore justified.
 The plaintiff in a tort action must reasonably believe that the defendant intended to carry
out the battery that flows from an assault.
 Here, the P had no reason to believe that the D was going to actually carry out the battery
– in fact, the court interpreted the D’s words to mean that he did not plan to carry out the
action.

CONDITIONAL THREATS

Where the defendant has the legal right to carry out the threat there is no assault. For
example:
(a) A person who says “get off my property or I’ll throw you off – not assault because the
property owner has the legal right to use reasonable force to eject trespassers from his
property.
(b) Bank robber who says “give me the money or I’ll shoot you” – that is assault – he does
not have the legal right to carry out that action. This is held to be an assault, even if the
teller knows that the robber will not shoot and feels no apprehension of harm so long as he
complies.
(c) “stop smoking that cigarette or I’ll make you sorry” – assault

Tort of Intimidation -
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When a person makes a conditional threat to carry out an act he has no legal right to carry out, it
could be the tort of intimidation. The person must obey/comply with the threat. Intimidation is
usually only sued on in a business context (i.e "If you don't sell me your property for $1, I'll break
your legs."

Police v. Greaves
 Like Tuberville v. Savage, but the D said "Come one step closer and I'll run you through".
 A person who has the legal right to carry out a thread is not liable for assault. Conversely,
a person who does not have the legal right to carry out a threat is potentially liable for
assault.

MINIMUS PRINCIPLE
Applied by the courts where a statement at issue is so minimal that it doesn’t deserve
consideration.

Newhook v. K-Mart Canada
 Further to case, the guard said to the woman, "The next time we meet, it won’t be about
fraud".
 For the defendant. This was not assault because the woman was not put into a situation
where there was a reasonable apprehension of imminent harm.

ROAD RAGE

Herman v. Graves
 The defendant tailgated the plaintiff at high speed and tried to force him off the road.
 A plaintiff who is reasonably apprehensive for his or her safety in a situation of road rage
may succeed in tort action for assault.

INTENTIONAL AFFLICTION OF MENTAL SUFFERING

Often overlaps with other torts (ie. assault, battery, wrongful imprisonment etc.) – but not
always (ie. to kidnap someone’s child – assault/battery/wrongful imprisonment are committed
against the child, but mental suffering is inflicted on the parents)

ELEMENTS:
(a) Intention – The defendant must have desired the consequences or realized with
substantial certainty that these consequences would ensue. The D need not have foreseen
the full extent of the injury or the exact impact that the statements would have on the P,
as long as emotional distress or mental suffering was desired or substantially likely to
occur. The motive for the defendant’s statement or act is not of concern.

(b) Mental Suffering / Harm – There must be some visible or provable psychiatric or
psychological illness (such as nervous shock). The P must show that they have suffered
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serious mental suffering (more than just stress, grief). In addition, the reaction of the P
must have been a “normal” one. Unless the D knew that the specific P was unusually
susceptible to the act or statement, it will not be possible to show that an abnormal
reaction was either desired or substantially certain. Can be caused by the defendant’s
actions or words. In addition, the harm does not have to be physical.

(c) Recklessness - In US law recklessness is sufficient in establishing the tort of intentional
affliction of mental suffering. This is not completely clear in Canadian law (see
Rahemtulla v. Vanfed)

(d) Outrageous and Extreme Conduct – Clear in US law that the conduct that produces the
mental suffering must be extreme and outrageous. This is not totally clear in Canadian
law. How does one define outrageous and extreme?

(e) Truthfulness - When a defendant has made a statement that causes mental suffering,
that statement is usually untrue. In this tort, it is not necessary that the statements be
untrue – liability may result if true statements are made (ie. doctor tells family of patient
that the patient is dying – but is insensitive).

Wilkinson v. Downton
 The D, in playing a practical joke, told the P that her husband had been in an accident and
was in the hospital. As a result, the D suffered a violent shock to her nervous system,
producing permanent physical consequences. The couple incurred significant medical
expenses as a result.
 There was no evidence that these consequences were the result of previous ill health or
predisposition to nervous shock or other illness.
 Court found that illness through mental shock, as suffered by the plaintiff, is a reasonably
foreseeable consequence of the defendant's act.
 A defendant may be found liable for intentional affliction of mental suffering
notwithstanding the absence of malicious purpose to cause the harm which was caused or
any motive of spite imputed to them.

RECKLESSNESS

Rahemtulla v. Vanfed Credit Union
 The P was hired by the D as a teller. She was accused of stealing $2,000. An employee of
the defendant, F., fired the P. She was given no opportunity to defend herself.
 As a result, the P suffered severe emotional distress and depression. She was unable to
find another job in the industry.
 The P brought an action for damages for wrongful dismissal and for mental distress.
 If a defendant is reckless in his or her behaviour, that may be sufficient to establish the tort
of intentional infliction of mental suffering regardless of whether or not the defendant
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intended to cause the emotional stress or knew with substantial certainty that his actions
would result in mental suffering.

Timmermans v. Buelow
 The P, tenant of an apartment owned by the Ds, was given notice of eviction, The P’s
solicitors advised him to stay. When the P refused to leave, the D stated that if he was not
out by 5 p.m., he would "bring some guys over" and the P would "be in the hospital".
 The D knew that the P was prone to panic attacks and had a psychiatric history.
 The confrontation was resolved, but the P suffered blackouts, vomiting, and confusion
followed by several suicide attempts and hospitalization.
 The P experienced a loss of income and is suing for tort and unlawful breach of the lease.
 Tort action for intentional affliction of mental suffering will succeed where the defendant
knew with substantial certainty that his threats would cause distress (consequence is
reasonably foreseeable).

Samms v. Eccles
 The P, a married woman, suffered damages as a result of D's persistent indecent
proposals. The P claimed that the D called her at home at various hours including late at
night, solicited her to have sex with him, and indecently exposed himself.
 The P suffered no actual physical injury.
 A person may be held liable for intentional affliction of mental suffering even if the
plaintiff suffers no actual physical injury.

FALSE IMPRISONMENT

Definition: Intentionally restraining someone within fixed boundaries.

ELEMENTS OF FALSE IMPRISONMENT:
(a) Intent – The D must intend or desire to confine the P, or must know that confinement is
a substantial certainty of their actions. In cases of psychological imprisonment, there is
tort when the D should have known with substantial certainty that the P would feel
compelled to stay.

(b) Directness – false imprisonment must occur as a direct result of the defendant’s
conduct. Usually the directness requirement stipulates that unless the D personally has
detained the P or has been responsible for the detention, the tort cannot be made out.

(c) Confinement / Restraint – False imprisonment must involve total restraint on one’s
liberty to go where one pleases. It therefore involves more than just depriving someone
of their freedom of movement (mere inconvenience).

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