Law 406: Torts

General Steps
1.
2.

3.

Issue spotting
List parties
If possible, consider pleading intentional
For each:
tort before negligence, with negligence in
a. Whether plaintiff or defendant
the alternative. IT easier to plead/prove.
b. Harm suffered in either case
c. Opposing party
Analyse party by party
a. For negligence: Duty, Standard, Causation, Remoteness, Defences
b. For intentional torts or strict liability:

Throughout: Consider what is good public policy.

Negligence

1 Duty
a

Existing Category?
1

Economic benefit (eg, bars) (Jordon House )

2
No duty owed by social host to third party (Childs )

ii
iii
iv

Generally no duty to rescue (Horsley )

v
vi
vii

54

Creation of danger (Dissent in Oke v. Weide )

4

Reliance (Zelenko v. Gimbel Bros )

5
Statutory (ORourke v. Schacht )
Statutory duty to public can translate to a private duty of care
Doctor-patient
Relationships of control/supervision
eg, teachers, psychiatrists, guards, etc.

viii Carrier-receiver

ix
x
xi
xii
xiii

Contractual relationships
Negligent misstatement (see under PEL below)
Misfeasance in public office
Known risk of danger & failure to warn
Governments who have assumed inspection duties

xiv Government operations

A Can sue the govt (Proceedings Against the Crown Act)
B Judges immune, but prosecutors owe a duty to Crown and accused
6
C Policy decisions unassailable, but operational decisions subject to liability (Just v. BC )

Exception: Bad-faith policy making, abuse of power

II

Distinction between providing services vs. governing. When providing services, no immunity.
7

Constitution may ground some duties (such as a duty not to discriminate) (Jane Doe )

xv Occupiers (Occupiers Liability Act)

A

D
E

Occupiers owe a duty to visitors (s. 6) re.

I
Condition of premises
II Activities on premises
rd
III Conduct of 3 parties on premises
Duty limited to what is foreseeable
Volentis high bar (see under Defences) still applies visitors must still express intention to waive legal
26
rights (Waldick )
Warnings must identify the specific danger (s. 9)
Lower standard (common humanity) for trespassers (s. 12), except child trespassers (s. 13)

Liable for loss to visitors and trespassers personal property (s. 14)

B
C

Bar liable to drunk customer they knew well

Social hosts did not provide alcohol, difference relationship. Also commercial hosts in better position to monitor consumption. No duty owed to 3rd party.
3
Driver knocked over a sign. Bent over pole later killed someone.
4
Woman in store infirmary store took on duty by volunteering
5
OPP unmarked hole statutory duty special knowledge and ability
6
1989 SCC Boulder fell on car and killed passenger
7
1998 Ont Gen Div Police failed to warn woman re. rapist on the basis of gender discrimination
2

Neighbour principle
i

Neighbour principle (Donoghue v. Stevenson)

Should Def have had Pl in mind?
You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your
neighbour. Who, then, in law, is my neighbour? . . . [P]ersons who are so closely and directly affected by my act that I ought
reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are
called in question (Lord Atkin)

ii

Three-part duty test (Anns refined by Cooper)

Claim brought in public interest
A Reasonably foreseeable harm (ie, is there a relationship)?
Some plaintiffs not foreseeable, eg, Hay (or Bourhill) v. Young

Sufficient proximity
9
Ie, is there a policy reason, w.r.t. relationship to deny duty of care? (eg, Dobson )
If not, having found a prima facie duty of care,
10
Residual policy reasons to not find a duty of care? (eg, Syl Apps )
Often will relate to indeterminacy problems (cost, class, or time)

Pure Economic Loss

Courts reluctant to find a duty for purely economic losses (no damage to person or property). These risks
should be covered off by contracts. Must be good reason to negate principle of freedom of contract. Also
potential indeterminacy problems.
i

Negligent misrepresentation
11
A Test for special relationship that would ground a duty (Hedley Byrne ):
I
Party seeking the information was trusting the other to exercise a degree of care
II It was reasonable for that party to trust the other
III Other party gave the inquirer information or advice when it knew or ought to have known
the inquirer was relying on him
12
B Pre-contractual statements (Queen v. Cognos )
I
Test for liability (more than just duty here)
a
b
c
d

D
E

ii

Duty of care using Hedley Byrne analysis (see above)

Representation in question must be untrue, inaccurate or misleading
Representor must have acted negligently in making the misrepresentation (ie, standard of care
not met)
Representee must have relied, in a reasonable manner, on the negligent misrepresentation (part
of the duty analysis, but also founds causation)
(And representor must have known they were relied on.)
Reliance must have been detrimental to the representee in the sense that damages resulted

II Other important factors: see note 3 on p. 445

13
Auditors do not owe a duty of care to shareholders (Hercules Management v. Ernst & Young )
I
Prima facie duty, but negatived on the second part of Anns public policy indeterminacy
problem
II Purpose for which the words uttered
14
Tort will operate unless specifically excluded by contract (BG Checo )
Neg. mis. can include omissions (words not spoken that should have been) (Fletcher v. Manitoba
Public Insurance)

Negligent performance of services

15

Eg, no duty owed by courier (B.D.C. Ltd. v. Hofstrand Farms )

Courier could not foresee loss from late delivery (yes, thats really what they said Hercules approach makes
more sense).

iii

Defective products or structures

Builder owed duty to subsequent purchasers (not in PK) for dangerous defects (Winnipeg
16
Condominiums )
A Policy made more sense to encourage repair than to wait for someone to get hurt

1943 HL nervous shock heard accident/saw blood plaintiff not foreseeable

1999 SCC Lawsuit between fetus and mother
2007 SCC Confused teen public policy reasons to deny duty (Cooper #2 & #3)
11
1963 HL Bank supplied faulty credit information to Pl, who suffered a loss when customer went bankrupt. Waiver saved the bank.
12
1993 SCC - Statements in a job interview proved to be wrong. Pl. incurred expense moving to Ottawa and job turned out not to be as advertised
13
1997 SCC
14
1993 SCC
15
1986 SCC
16
1995 SCC
9

10

Court said no indeterminacy:

I
II
III

iv

Relational economic losses

Losses incurred by A (in a relationship with B) because of what C has done to B
General rule (exclusionary rule) is no recovery A cannot recover from C contract law should
cover it
17
A Policy arguments (indeterminacy, deterrence, etc.) vs. categories (CNR v. Norsk ).
B Recognized exceptions (categories) to the general rule (Norsk):
I
II
III

C
D
E

Cost: cost of repairs (?)

Class: Actual owners of building
Time: Useful life of building (plus the passage of time will naturally limit it as it will be harder for the Pl
to prove that problem was due to shoddy construction and not normal deterioration)

Claimant has a possessory or proprietary interest in the damaged property

General average cases (?)
Cases where the relationship between the claimant and property owner constitutes a joint venture
18

But the categories are not closed, so just apply Anns (Bow Valley Husky ).
Company could not recover from third party for injuring their employee no prima facie duty
19
employer not foreseeable (DAmato v. Badger ).
Fatal Accidents Act a person who has died can sue the wrongdoer, and dependants can join
with the estate in the suit.
20

Public authority govt landlord owes no duty of care in negotiations (Martel )

Start from position of exclusion. Apply Anns. Policy reasons to exclude duty (hobble the operation of
the marketplace, indeterminate liability).

2 Standard of Care
a

Reasonable Person
i
ii
iii
iv

21

Objective test (Vaughn )

22
Need only anticipate what is normally expected (Blyth v. Birmingham Water Works )
53
Higher standard of care owed to children (Harris v. TTC )
23
But dont take unreasonable risks (Bolton v. Stone )
A
B

Consider probability & magnitude

Cost of avoidance vs. social value of the activity (Wagon Mound (No. 2))

Exceptions to objective test

A Young people
I
II
III

24

under 7 not liable (Heisler )

over 7, look at reasonable child of like age, experience, intelligence, knowledge, and alertness
if adult activity, adult standard applies

Disability
I
II

Physical reasonable person with like disability

25
Mental reasonable standard unless incapacity (Fiala )
Must have (guide only?)
a
sudden onset; and
b
no control over actions (cannot discharge duty); or

Custom
i
ii
iii

no capacity to appreciate duty

26

Must be able to prove custom (Waldick )

Custom must not be negligent (Waldick)
Custom is usually used to raise the standard above the reasonable person

Statutory Standards
i
ii

27

Breach of statute not a tort, but may be evidence of one (Saskatchewan Wheat Pool )
28
Purpose of statute must be related to harm suffered (Gorris v. Scott )

17

1992 SCC CN tried to sue for lost revenue as a result of damage to a bridge owned by Public Works Canada (PWC) caused by Norsk Pacific Steamship.
1997 SCC Complicated facts, but in the end the court didnt recognize a duty because of an indeterminacy problem
1996 SCC
20
2000 SCC
21
1837 Common Please law does not see man as God sees him
22
1856 Exchequer Birminghams fire hydrants tested for reasonable conditions. Did not need to anticipate unusual frost.
23
1951 HL Cricket ball flies over fence and injures woman on road
24
1972 ONHC 9-yr-old on tractor
25
2001 ABCA Guy jumps on car
26
1991 SCC slipping on ice custom to not salt court said stupid custom even if you can prove it
27
1983 SCC Shipment of infested wheat contrary to Canada Grain Act
18
19

iii
iv

29

Compliance may not be enough (Ryan v. Victoria )

Emergency Medical Aid Act lowers SoC

Professionals
i

30

Basic standard (Challand )

A
B
C

ii
iii
iv

average, normally skilled member of the profession

regard for special subgroup (eg, rural GP vs. urban surgeon)
no liability for honest error in judgment

Not an excuse to be new must refer if you do not have required expertise
Act in accordance with general and approved practice unless inconsistent with prudent precautions
31
against a known risk (Brenner )
Informed consent
A What to disclose
32
Consider circumstances of individual patient (Reibl )
I
II
III

Modified objective test: What would a reasonable person in situation of this patient want to know?
Patient knows best.
Consider gravity & probability (Bolton)
Pl. must prove causation
Modified objective test for causation: Given risks and benefits, what would reasonable person in
33
34
situation of this patient have decided? (Arndt , Halkyard )
35

Must inform of any significant change in risk (Ciarlariello )

Prof. disagrees with judgment: When consent was withdrawn due to complications, patient would want to
know anew the risks (have they increased? Have they decreased?

Higher standard of disclosure for cosmetic and experimental procedures

3 Causation
36

Pl. must prove Defs behaviour caused the damage (Kauffman v. TTC )
37
Need not be sole cause material contribution enough (Athey v. Leonati )

Breach of standard proof of breach

i
ii

38

Negligence must be proven on a balance of probabilities (Wakelin )

Circumstantial evidence can establish a prima facie case of negligence which the defendant may
39
have to rebut (Byrne v. Boadle )
40

Not a shifting of the burden more a tactical burden (no res ipsa loquitur, Fontaine )

iii
iv
v

41

If one or both of two parties responsible, but cant prove which, then both are equally (Leaman )
For 2 or more defs, liability apportioned by degree of fault/negligence (Contributory Negligence Act)
If cant determine, then equally.
42
Statute may shift burden (eg, Highway Traffic Act )

Breach caused damage proof of causation

i
ii

43

Starting position: Basic but-for test (Resurfice )

44
Also available: material contribution test (Snell )
When to use material contribution (Resurfice)
A Pl cannot prove with but-for, because of factors beyond Pls control; and
B It is clear Def breached a duty of care, exposing Pl to unreasonable risk of the type of injury
actually suffered.

28

1874 Exchequer unsecured sheep

1999 SCC Motorcycle in railway flange
30
1959 ABCA Farmer broke arm in barn and got infection standard is reasonable rural doc honest error in judgment okay
31
1973 ONCA Solicitor in land transaction
32
1980 SCC Man 2 yrs from retirement has stroke in surgery would have waited to have surgery had he known risk
33
1997 SCC Pregnant Pl. had chicken pox. Baby born with brain damage. Pl. claimed she would have aborted had she been told risk. Pl. lost.
34
1993 SCC Dr did not disclose epilepsy which was under control and did not cause the complications. Pl. (a nurse) would not have refused operation even with
the knowledge. Dr not liable.
35
1993 SCC Resumption of test after patient agitation. Pl suffered rare injury but risks had not changed so no need to explain again. No liability.
36
1960 SCC Pl. claimed that better handrail and an attendant would have prevented escalator accident
37
1996 SCC Disc herniation from mild, non-negligent exercise, following two MVAs. None of loss to be apportioned to the non-tortious cause (the exercise).
38
1886 HL Husband of pl. found dead near level crossing. Nobody knew how it happened. A fact pattern that is equally consistent with the allegation of the
plaintiff as with the denial of the defendants does not establish the required proof
39
1863 Exchequer Falling barrel of flour. Res ipsa loquitur applied
40
1998 SCC Two men discovered dead in truck. No evidence re. how accident happened. Negligence not proven against driver.
41
1954 NBSCA 2 cars collide. Clearly one or the other, or both, (but not neither) were to blame, but unclear who. Both drivers equally at fault. Judge cannot refuse
to decide.
42
RSA 2000, c. C27 s. 1(1) Shifts burden to owner or driver for loss from a motor vehicle in motion, except a collision between motor vehicles on a highway. No
fault.
43
2007 SCC Ice resurfacing machine; pl. put hot water in fuel tank
44
1990 SCC Ophthalmologist continued operation despite bleed in eye, a possible cause of the pls blindness that followed, though there were other possibilities.
Dr. liable.
29

45

Material contribution appropriate for hypothetical situations (Walker Estate )

Impossible to prove what a particular person in the causal chain would have done had the def not
committed a negligent act himself.

iii
iv

Where the subject matter of the allegation lies particularly within the knowledge of one party, that
46
party may be required to prove it. May lower Pls burden (Snell).
47
If multiple possible causes & evidence destroyed, then court can shift burden to Defs (Cook )
CC in Resurfice said Cook could have been resolved with material contribution too.

If multiple defendants potentially caused harm, all of whom were negligence, and cant prove which
48
one caused the harm, Pl can recover from all. From of material contribution. (Fairchild )

4 Remoteness
(ie, absence of proximate cause)

General
i

Test: Def responsible for reasonably foreseeable consequences (whether direct or indirect) (Wagon
49
Mound No. 1 )
But, for a sympathetic plaintiff and particularly unredeeming behaviour, burden of proof may be lowered:
Damage must merely be possible. The possibility probably still needs to be known to Def. Application of Bolton
50
v. Stone factors. (Wagon Mound No. 2 )

ii
iii

Manner and extent of damage need not be foreseeable, as long as the type of damage is (Hughes v.
51
Lord Advocate )
Thin Skull take your victim as you find them
A

52

If original injury type is foreseeable, liable for subsequent developments (Smith v. Leech Brain )
This could also be seen as a retreat from WM#1.

iv

37

If pre-existing disposition aggravates injury, still responsible for whole extent of injury (Athey )

Intervening forces can break the chain of causation must not be foreseeable by the first
tortfeasor
53

If Def can foresee that intervening force, it will not break causation (Harris v. TTC ).

If Def has a duty to take reasonable care to protect Pl. from injury caused either by Pls own act or act of a
rd
3 person, then it will not break causation. (Harris)

Specific Situations
i

Rescue If Def creates a situation requiring rescue (incl. bungling a rescue himself), and that causes
a second rescuer (and presumably a third) to attempt rescue, first rescuer liable to subsequent
54
rescuers (Horsley )
A
B

ii

But chain of causation can be broken. If second rescuer acting in foolhardy manner, that is not foreseeable.
If the second rescuers actions not foreseeable, then first party not liable.
May be preferable to use contributory negligence rather than giving no remedy to person who might be
seen to be acting in a foolhardy manner.

Second Accident
nd
A 2 accident foreseeable when Pl injured in a way that affects ability to perform ordinary
55
activities (Weiland )
Lower quantum of proof required to establish proximate cause than that required to establish
liability in the first place (Weiland).
B But, if Pl acts unreasonably (even if that is foreseeable), that will act as an intervening force to
56
break the chain of causation (McKew ).

45

HIV blood. Defs screening pamphlet did not warn donors as the American (ARC) one did. Would he have donated had he read the ARC pamphlet? (But in this case
but-for test also worked b/c donor testified he would not have.)
46
[A]ll evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have
contradicted (Lord Mansfield, Blatch v. Archer)
47
1951 SCC Classic two-shooter case. 2 defs negligently shot at same time; one shot hit pl. Theyre not saying which one shot in the direction of pl. Still good law.
48
2002 HL Mesothelioma from asbestos dust at one or more previous employers, but cannot prove which. All were negligent.
49
1961 PC Def. negligently (and illegally) spilled oil in bay and left. Pl. made inquiries and determine it was still safe to do their welding. Oil caught fire and
damages Pls wharf. Due to evidence introduced that oil floating on water was not flammable (a fiction introduced to avoid contributory negligence), defs found
not liable because damage was not reasonably foreseeable.
50
1966 PC Same facts and Def as before, but new Pl with no contributory negligence problem. New evidence that oil could indeed burn on water, however
unlikely, and then reasonable ships captain would know it was possible. No redeeming quality in action and low cost of avoidance.
51
1963 HL Boys play in manhole with paraffin lamps unforeseeable explosion liable because burns from lamp are foreseeable same type
52
1961 QB Lip burned from molten metal. Eventually turned to cancer. Type of injury (burn) foreseeable.
53
1967 SCC Bus brushed against pole. Young passenger put arm out of window in contravention of by-law and in disregard of notice and was injured. TTC liable
despite Pls negligent act.
54
1972 SCC Boating accident, improper rescue (maj. held rescue not negligent, but if it had, he would have been responsible to the subsequent rescuers because
their actions were foreseeable)
55
1969 QB Pl injured in bus accident for which Def. was negligent. Leaving hospital with neck brace she fell down stairs because brace altered vision (couldn't
adjust bifocals due to brace).
56
1969 HL Pl previously injured in accident for which Def was liable. Leg weak and liable to collapsing occasionally. Descended some steep stairs unassisted and
without a hand rail. Def not liable for 2nd accident.

5 Defences
a

Contributory Negligence
i

General
A

57

Used to be a complete defence (Butterfield )

58

Last clear chance a way around it (Davies ) no longer the law

ii

For 2 or more defs, liability apportioned by degree of fault/negligence (Contributory Negligence

Act)
If cant determine, then equally.

Seat Belt Defence

A Passengers have a duty to wear seat belts.
Where it can be proved injury would be reduced to the Pl if they had been wearing a seatbelt, contributory
negligence.

B
C

Not required of passengers in a taxi (ie, driver not liable if passenger doesnt wear) (?)
Driver has duty to ensure passengers wearing seatbelts. Where passengers are children under
16, a positive duty exists, and presence of parent may only suggest joint responsibility, not
59
negate the driver of the duty (Galaske ).
Def alleging contributory negligence must prove (on BOP) Pls injuries would not have occurred
60
or would have been less had Pl worn seatbelt. Test is but-for. (Labbee )
(It has become almost a rule of thumb that if not wearing your seat belt the court will assume causation and make you
25% liable. But you should still prove that the lack of seat belt caused the injuries.)

Voluntary Assumption of Risk (Volenti)

i
ii

To be a defence, Pl must not only agree to accept the risk, but must specifically agree to waive legal
61
rights/agree not to sue (Hambley )
62
A waiver of ones right to sue must be brought to their attention (Crocker v. Sundance )

Illegality
i
ii

Test: Whether an award of damages in tort would amount to rewarding the plaintiff for illegal
behaviour
Protects integrity of the law
Eg, a pimp cant sue his prostitute for the proceeds of prostitution, but a Pl. could sue his friend for negligently
63
allowing him to drive his car while impaired (Hall v. Hebert ).

Exclusion clauses
62

Exclusion must be very explicit, and Pl must be aware of the terms of it for the Def to rely on it (Crocker ,
64
Dyck v. Manitoba Snowmobile Association Inc )

[see also bit on Damages at the end]

Strict Liability
Liability without fault

1 Origin and Scope

a
b

Some things you do are so inherently dangerous that it doesnt matter if you are at fault
Non-natural use: If you bring something onto your land that is non-natural use and it escapes youre
going to be liable for damage, regardless of fault or use of reasonable care. Higher standard. (Rylands v.

57

1809 KB Horse rider riding too fast held responsible, not the person who left the obstruction, because rider had chance to avoid it.
1842 Exchequer Pls donkey was too close to the side of the road. Def. came along too fast and hit it. Def. had last clear chance to avoid the accident, so Def lost.
A way around contr. negl. Complete defence and LCC rule now superseded by CNA.
59
1994 SCC 8-yr-old Pl and father passengers in Defs truck. In accident not caused by Def, Pl injured because not wearing seatbelt. D liable for not ensuring Pl was
wearing seatbelt, even though father was there. Control and public policy.
60
1999 ABCA Pl ejected from vehicle and struck by protrusion on truck. Pl probably would have died (albeit from different injuries) had he worn a seatbelt.
61
1967 ONCA Police created roadblock with his car and is hit by Def while sitting in car. Defs pled volenti; court disagreed
62
1988 SCC Intoxicated man broke neck tubing down ski hill in competition. Had previously signed but not read waiver.
63
1993 SCC
64
1985 SCC Unlike in Crocker, this Pl had read and understood the waiver
58

65

Fletcher )
Defences/exceptions (see more below):
i
Plaintiffs own fault
ii
Act of God

iii
c

The Queens enemies

rd
Malicious act of 3 party (Rickards)

To qualify for strict liability, land use must be special (not non-natural).
Ordinary uses, uses that benefit the community (eg, running water in houses) not subject to strict
66
liability (Rickards ).
67
Strict liability limited to property damage (not personal injury) (Read v. Lyons )
Also explosives factor held not to be unnatural use of the land
Context: wartime, explosives factory
Exception: escape of wild animals (then personal injury recoverable)

2 Defences
a

b
c
d
e

Consent of Pl
i
Express will be construed strictly against defendant though
ii Implied, eg,
A

Tenant consents to water escaping if collected for their benefit

In another case the plaintiff benefited from buried gas pipes that exploded, but they still won. They didnt
necessarily consent to the way the pipes were installed, etc

Act of God (extraordinary not ordinary storms)

Default of plaintiff (see p. 532) comparable to contributory negligence
rd
Deliberate act of 3 party
Onus on Def to prove. Must be unforeseeable/unpreventable.
Legislative authority, ie, authorizing the dangerous activity
Will be strictly construed. Sopinka: defendant must negative that there are alternate methods of doing
the work.

3 Products Liability
a

US method: use strict liability to fill gap left by privity (instead of Donoghue v. Stevenson analysis)
A manufacturer is strictly liable in tort when an article he places on market, knowing that it is to be used without
inspection for defects, proves to have a defect that causes injury to a human being (Greenman v. Yuba Power
68
Products ). Consider:

i
Party creating the risk
ii Party best able to bear loss/in best position to spread loss (pass on cost)
Canadian methods:
i
Food: Use negligence, but set a very high standard of care that approximates to, and almost
becomes, an absolute liability (544).
ii Dangerous products (propane, guns, poisons, explosives, etc.): Shift burden to the Def to prove no
negligence.
iii Remember: No problem with property damage; we have Rylands v. Fletcher (see above).
iv Tort law will gradually expand to deal with the problem

4 Vicarious Liability
a

Policy justifications
i
Provide a just and practical remedy to people who are harmed
Who can bear the loss?
A Employer created the risk (gave him the tools, assigned the task, trained poorly, etc.)
Vicarious liability is generally appropriate where there is a significant connection between the
70
creation or enhancement of a risk and the wrong (Bazley )
B Employer profits from employment
ii Deterrence
Better hiring, training, etc.
69
No vicarious liability for actions of independent contractors (Sagaz )
Because no control over the person
Factors to determine employee or contractor:

65

1868 HL
1913 PC
67
1947 HL
68
1963 SC of California Shopsmith case
69
2001 SCC
66

i
ii
iii

iv
v

70

Actions employer responsible for (Salmon on Torts, Bazley v. Curry )

i
ii

Employee acts authorized by the employer; or

Unauthorized acts so connected with authorized acts that they may be regarded as modes (albeit improper
modes) of doing an authorized act

Principles (Bazley)
i
ii
iii
iv
v

e
f
g

Who owns the equipment

Who hires the workers helpers
Degree of financial risk taken by the worker
A
Employees get paid regardless whereas contractors may not get paid if the work is not accepted
B
Contractor may pay their own liability and disability insurance policies
C
Contractors may front the money for projects
Degree of responsibility for investment and management
Workers opportunity for profit

opportunity employment provided employee to abuse his or her power

extent to which wrongful act may have furthered the employers aims
extent to which wrongful act related to friction, confrontation, or intimacy inherent in the employers
enterprise.
extent of the power conferred on the employee in relation to the victim
vulnerability of potential victims to wrongful exercise of employees power
71

Connection must be more than time and place (Jacobi )

72
Charitable organizations not immune (Blackwater v. Plint )
Two parties can both be vicariously liable (Blackwater)

Intentional Torts
Easier to plead, so if there is case, please negligence only in the alternative
On the end of a continuum that includes accident, negligence, and intentional tort.

1 Intentional Interference with the Person

a

Intention
A lower bar than in crime

i
ii
iii
iv

v
vi

Direct and forcible interference

Need not be intended (despite name)
Need not cause damage
Shifting burden: All Pl has to show is that he was hit directly by Def. Burden then shifts to the
defendant who must then show both that he didnt intend it and that there was no negligence on his
73
part, Cook v. Lewis-style (Goshen )
74
A person intends the consequences of his act; motive doesnt matter (Garratt )
Mistake not a defence
75
A eg, if you accidentally mow your neighbours field youre liable (Basely v. Clarkson )
Why so strict? Remember were trying to prevent lawless retaliation.

eg, in Cook v. Lewis, they thought they were shooting at a deer, when in fact they were shooting at a
person. (But if you shot into the desert and hit someone you didnt know was there, then there is no intent; its just
negligence.)

vii Transferred intent

A
B

76

From one person to another if you take a swing at one person and hit another, youre still liable (Carnes )
From one tort to another If you shoot toward someone intending to frighten them and instead hit them,
youre still liable
77

viii Act must be voluntary (Smith v. Stone )

No volition no intent
(But you can probably have volition and still no intent gun to your head? Prof. thinks not though.)

ix

78

3-yr-old not capable of forming intent (Tillander )

Kid probably is capable of directing mind to this, but court wants to avoid saddling young child with liability.

70

1999 SCC sexual abuse employer told the employee to have intimate conduct with children (put them to bed, bath them, etc.)
1999 SCC sexual abuse by Boys and Girls Club employee, but in his own home SCC held his job duties did not require him to have intimate contact with the
children, so failed the test. Close case with strong dissent. Prof. thinks wrongly-decided (not that connection must be more than time and place, but that, factually,
connection was more than must be more than time and place).
72
2005 SCC Indian residential schools abuse
73
1974 NSCA
74
1955 SC of Washinton Def aged 5 pulled chair out from under Pl about to sit down. Def intended to happen precisely what did happen (that she fell).
75
1681 Common Pleas
76
1932 SC of Missouri
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1647 KB Def was carried onto land by other people, so no tresspass
71

79

Mentally ill person might not be able to act intentionally (Lawson v. Wellesley Hospital )
Note: For tort you dont need to know its wrong, unlike crime. You just need to know what you are doing.

Assault
Threat of violence
i
ii
iii
iv

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Apprehension of immediate contact (I. de. S. & Wife v. W. de. S )

Def liable if advancing with intent and he could reach plaintiff within a few seconds if not stopped
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(Stephens v. Myers )
82
Conditional threatening statement without imminent threat of harm not assault (Tuberville )
83
Road rage can be assault, but depends on facts (Bruce v. Dyer )

Battery
84

The least touching of another in anger (Cole v. Turner )

But not, say, gentle, accidental touching in a narrow passageway with no violence, struggle, and no design of harm

i
ii
iii
iv

Battery if act intends to cause a harmful or offensive contact, and the contact results (American
restatement).
Need not intend to cause injury; need not be hostile intent
Unsolicited hug or kiss and be battery
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Damages for intentional torts can be unlimited; remoteness doesnt apply (Bettel v. Yim )
Again, remember policy reasons. Discourage deliberate offensive contact. To prevent retaliation. Policy reasons
behind limiting liability for negligence do not apply to intentional torts. Those who intentionally inflict harm should bear all of
the consequences.

Sexual Wrongdoing
i
ii
iii
iv
v
vi

Unwanted sexual contact is battery, but may also be assault, and intentional affliction of emotional
distress.
Can also amount a breach of trust (not a tort; its in trust law)
Vicarious liability often important
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Consent vitiated by imbalance of bargaining power (Norberg v. Wynrib )
Litigation a powerful healing tool control over the case/story, etc., compared with criminal law
Also lower burden of proof, compensation, deterrence
Sexual harassment is emerging as a tort, but may run into trouble, so plead intentional infliction of
emotional distress

Intentional Infliction of Mental Suffering

i
ii

Provides flexibility where the intentional tort may not fit into a named category
Wilful causation of harm to another is a tort, even if its just by telling them a lie (Wilkinson v.
87
Downton )

2 Defences to Intentional Torts

a

Consent
i
ii
iii
iv
v

88

Pls behaviour may indicate consent (OBrien v. Cunard )

86
Consent much be genuine, not coerced (no imbalance of power) (Norberg v. Wynrib )
Though emergency may eliminate need for consent, emergency does not override withdrawal of
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consent (Malette v. Shulman )
Sports: There is consent to more contact in sports than in normal social interaction, but with limits.
Circumstances that show a definite resolve to cause serious injury would not be consent.
Consent may not be necessary to address a related problem during surgery that wasnt the subject of
90
the original consent (Marshall v. Curry )

78

1967 HC 3-yr-old drags a baby along the ground, breaking its skull
1978 SCC Patient (not a psychiatric patient) attacked by a psychiatric patient in the hospital
1348 Defendant swung hatchet at innkeeper but did not make contact with her. This is assault.
81
1830 Nisi Prius Def was several seats away from Pl in a meeting. After a vote to eject Def from meeting, he expressed desire to toss chairman out instead.
Lunged at chairman with fists clenched and was stopped one seat away from Pl.
82
1699 KB Def. put his hand on his sword and said if it were not assize-time, I would not take such language from you. Not assault, as statement actually means
Im not going to do anything just now because the judges are in town.
83
1970 ONCA
84
1705 Nisi Prius
85
1978 Ont Co Ct
86
1992 SCC Doctor supplied pain meds to addict in exchange for sex
87
1897 QB Prankster falsely told a woman her husband had been involved in a train wreck. Found he intended to cause her a shock, which it did (violent reaction
distress, vomiting, etc. entailing weeks of suffering and incapacity)
88
1891 SJC of Massachusetts unwanted smallpox vaccination prof thinks wrongly decided
89
1990 ONCA Dr gave a JW blood transfusion against her wishes, which he knew about from a card in her wallet. Doctor honestly believed transfusion was
essential to save her life. Dr liable.
79
80

Prof. thinks the law has changed since Marshall, but it may probably depend on the medical facts too. Perhaps in
1933 it would have been life-threatening to do a second operation? But still does not seem to agree with
Shulman. Dont rely on Marshall.

Self-defence
i
ii
iii
iv
v
vi

91

Must be no delay (Cockcroft v. Smith )

Response must be balanced/proportional (Cockcroft).
Provocation not a defence (it does not go to liability) (Cockcroft). It only goes to ameliorating the
remedy by helping to explain the context.
Timing (who struck whom first) doesnt matter (Cockcroft).
You can also use the same kind of response in defence of third parties (children, pets).
You can use more force in something like a home invasion. Even if they are not being violent toward you,
you can use violence in response to the security of your home being violated in the middle of the night while
youre there, for example.

Defence of Property
i
ii

92

You must first request trespassers to leave before using force (Green v. Goddard ).
If theyre on their way out, you cant attack them.
But, if break and enter (ie, if they used force to get on the land), then you dont have to ask them to
leave; you can respond with force (Green v. Goddard).
But proportionality will still enter into it. If your life is not threatened you cant kill them

iii

You cant set up a lethal force trap for trespassers, especially without lots of notification to others
93
(Bird v. Holbrook ).

Necessity
i

Public right to cross over private lands if an adjacent public highway is impassable (Dwyer v.
94
Staunton )
A
B

ii

iii

As long as they cause no more damage than necessary

Rights of the public higher than private property rights

Difference between public/private necessity: Public necessity you dont even have to pay for the
(reasonable) damage, with private necessity you do have to pay for any damage you cause (Vincent
95
v. Lake Erie Transportation ).
96
Homelessness not a defence to trespass (Southwark London Borough Council v. Williams )
Otherwise no ones house could be safe (Denning).

Assessing Damages

When actionable injuries actually happen they attract [the] full value of the consequences of the injury.
If there are some consequences that are only a possibility, then they would be weighed according to their
probability of materializing (389). So even if she hadnt fallen down the stairs, the award should take
55
into account that she is now at an increased risk of that (Weiland ).
See also Contributory Negligence Act in Proof of Breach section.

90
1933 NSSC Patient consents to hernia operation. During surgery doctor discovers problem with the patients testicle, and removes it. He felt it was important to
address, and connected to the hernia problem. Held not to be a battery.
91
1705 QB In a scuffle, plaintiff Cockcroft ran her fingers toward defendant Smiths eyes, and Smith bit off her finger.
92
1704 QB
93
Def, having suffered theft of valuable flowers from his walled garden, placed a spring gun. He declined to post a warning because he desired to catch the thief
next time, presumably by injuring him. Innocent third party trespasser was injured.
94
1974 AB Dist Ct
95
1910 Minnesota SC Where under stress of weather a master, to preserve his vessel, maintains her moorings to a dock after the discharge of the vessel's cargo,
and the dock is damaged by the pounding of the vessel, the dock owner may recover from the shipowner for the injury sustained.
96
1971 CA Def squatters in two empty homes awaiting redevelopment owned by local municipality

10