TORTS OUTLINE – FALL 2013

DEFINITIONS

Negligence Negligent BatteryBurden of proof on plaintiff to show that defendant was negligent

Once plaintiff has established direct, harmful or offensive physical contact, burden of proof on defendant to prove contact was not negligent

Damages beyond de minimis range Actionable without proof of damagesOnly liable for reasonably foreseeable consequences

Defendant liable for all consequences, not just foreseeable ones

For negligence you need to establish a duty

In battery you don’t need to establish a duty

Every tort requires damages EXCEPT for trespass torts Tortfeasor: a person who has committed a tort Strict liability: tort liability based solely on the causation of damage rather

than proof of the defendant’s intent or negligence Negligence: A tort based on careless conduct or conduct that creates a

reasonably foresseable risk of harm Intentional Conduct: a subjective desire to cause the consequences of one’s

actions. Conduct is also intentional if the consequences, while not desired, are substantially certain to result from the defendant’s conduct

Jointly and several liabilities: all tortfeasors are collectively and individually liable for the plaintiff’s loss. The plaintiff may choose which tortfeasor against whom to execute his judgment

Severally liable: where two or more tortfeasors independently cause the same harm to the plaintiff and each is individually liable for the plaintiff’s loss

Directness: “but for test”: would the plaintiff’s damage have occurred BUT FOR the defendant’s negligence?

o No: it is directo Yes: damage would have occurred whether or not the defendant was

negligent

THEORIES OF TORT LAW Tort law vs criminal law Regulates state versus individual, tort is individual versus individual Criminal law is statutory based, tort law is law based In criminal law there is punishment, in tort law there is remedy through

compensation There is a lot of overlap, possible to be convicted for crime and liable for a

tort (s.11) Different standard of proof: beyond a reasonable doubt vs. balance of

probabilities In criminal law the action is brought by the state, in tort law it is brought by

the individual In criminal law the state pays, in tort law costs will be awarded to the winner Tort law vs Contract Law The distinction is that the duties of tort are primarily fixed by the law, while

in contract they are fixed by the parties – in tort, the duty is towards persons generally, but in contract it is toward specific person(s)”

Objectives of tort lawo Essentialist: about correcting the relationship between the do-er

and the sufferer of the acto Concern is for the public, not general public policy considerationso Damages are about correcting the relationshipo Instrumentalist: tort law has many functionso Different goals include: socio-economic analysis, compensation,

punishment, deterrence, psychological/public vindication, educational, standards of behavior, a way to challenge the behavior of the rich and the powerful

o Believes that courts can and should look outside the parties and address public interest

o The role of tort law has changed and developed over time

JOINT AND SEVERAL LIABILITY CRITERIA:

o Defendants commit a series of discrete, independent tort, each of which is a cause-in-fact of the plaintiff’s damage

LIABILITY: o Must be established against each of several concurrent tortfeasorso Jointly and severally liable for the plaintiff’s loss; plaintiff can recover

100% of the damages from any of the tortfeasors Prior to Negligence Act

o Joint tortfeasors could be sued together; judgment executed in full against one of the joint tortfeasors, and they could not sue for compensation from other defendant

o Concurrent tortfeasors could not be sued in one action

Negligence Act S. 4(2)(b): allows defendant to seek compensation from other defendant to

reflect their fault; each is jointly and severally liable S.1: directions for apportion by fault. If it cannot be determined, then liability

is apportioned equallyo The plaintiff can sue all the defendants in the same action, and demand

which of them pays the global damages ORo The plaintiff can sue one of the defendants, and the defendant can seek

compensation from the other defendant Full payment by one defendant of a settlement discharges the liability of all

other defendants to the plaintiff If full payment is not made the plaintiff can add more defendants, but they

can’t exceed the quantum of the first (prevents court shopping)o Creates incentive to bring all potential tortfeasors in the initial

proceedings

VICTIM CONTRIBUTION (CONTRIBUTORY NEGLIGENCE) Contributory negligence is the failure of the plaintiff to take reasonable care

for her own safety which contributes to the accident or her loss If the negligence of the plaintiff contributed to her loss, the court must

determine the degree to which the plaintiff is responsible for that loss and reduce the damages accordingly

Appointment of liability is related to their blameworthiness of conduct, rather than causationo Apportionment: based on degrees of unreasonableness

BC:o A number of cases section 4 does not applyo Liability several, but not jointcan still sue in one actiono Reasoning:

Section 4 is meant to separate those who are liable from those who have suffered the loss

o Plaintiff is being penalized twice: by original harm and losing recovery power

JOINT TORTFEASORS CRITERIA:

o Common design/common action + acts committed to further common design

o Special relationship or participation in common venture involving tortious conduct

BURDEN OF PROOF: o Only necessary for the plaintiff to prove a single tortious act by one of the

joint tortfeasorso The burden of proof of causation is reversed; burden on the defendant to

prove that they did not cause the loss to the plaintiff LIABILITY:

o Jointly and severally liable for the plaintiff’s loss; plaintiff can recover 100% of the damages from any of the tortfeasors

A number of people may be responsible for the single tortious act of one of them Proof of a single tort suffices to establish liability against them all Arises where the defendants have some special relationship or they participate

in a common venture or joint enterprise involving tortious conduct 4 categories of joint tortfeasors:

i. One who instigates or encourages another to commit a tort and the person who commits it are joint tortfeasors

ii. An employer and an employee are joint tortfeasors in respect of a tort committed by the employee within the scope of his employment

iii. A principal and agent are joint tortfeasors in respect of torts committed by the agent within the actual or apparent authority of the agent

iv. There is a residual fact-specific category covering other instances of concerted action by two or more involving the commission of a tortious act (guilt by participation, not guilt by association)

Cook v. Lewis(NOT joint tortfeasors, alternative liability) Alternative liability applies where it is clear that only one of a small number of

negligent persons caused the plaintiff’s loss, but the plaintiff is unable to establish which person it was

Alternative liability is normally justified on the grounds that all of the defendants are wrong-doers, o They normally have better information of the circumstances of the accident

than the plaintiffo They may have impaired the plaintiff’s power to prove cause-in-facto And, given the small number of defendants, there is a high likelihood that

any one of them caused the loss NOT joint tortfeasors, case of independent and parallel tortious conduct

Ratio: Suggests that common purpose or design has to be unlawful or have a reasonable likelihood to lead to unlawful activitiesotherwise any social activity might imply joint tortfeasors

Fish & Fish v. Sea Shepherd UK Ratio: Court finds that participation was too remote to indicate a common

design, the fact that someone facilitated an act is not sufficient to make them liable

VICARIOUS LIABILITY CRITERIA:

o Category of joint tortfeasors1. Requisite relationship: employer/employee (Sagaz)2. Tort committed within course of employment

Course of employment: Salmon Test (Salmond/Bazley) BURDEN OF PROOF:

o Only necessary for the plaintiff to prove a single tortious act by one of the joint tortfeasors

o The burden of proof of causation is reversed; burden on the defendant to prove that they did not cause the loss to the plaintiff

LIABILITY: o Strict liability unrelated to faulto Requires no proof of personal wrongdoing by the person subject to it

vicarious liability Vicarious liability describes the responsibility that one person may have for the

torts of another because of the relationship between them It does not displace the personal liability of the tortfeasor

o It merely provides the plaintiff with an alternative defendant who is more likely to be solvent, to have liability insurance, or to be able to spread the loss in some other way

Policy rationale: object to improve employer practices such that employers adopt safe practices and are sufficiently deterred through potential financial loss to avoid future harm. Further, vicarious liability reflects the risk created of the power relationship between the employer and employee, and resulting financial benefits accrued upon a company by potentially unsafe work. Employers benefit financially and thus should cover some of the costs related. Moreover, employers tend to be insured, or can cover costs through price increaseso Especially important if the tortfeasor is judgment proof

671122 Ontario v. Sagaz Industries Canada(Test for requisite relationship) Provides functional test for determining whether a requisite relationship exists Reviewed all of the approaches and concluded that there was no one conclusive

test for determining whether someone as an independent contractor or employee

An employee is a person who is under direct control and supervision of the employer who is empowered to tell the employee how, when, and where to do the work

Independent contractors are not under the employer’s control. They are hired to complete a particular task and are controlled by the terms of their contract with the employer, not by the personal instructions of the employer

Central question is whether the person who has been engaged to perform the services is performing them as a person in business on his own account

Non exhaustive test Control test: direct control, supervision, empowerment versus no personal

instruction Entrepreneur test: ownership of tools, chance of profit/loss Organization test: integration of worker into workplace Enterprise test: functional, whether employer controls activity of worker,

whether he’s in a position to reduce loss, true cost allocated to enterprise, benefit from activities of the worker

Many factors need to be taken into considerationo *The level of control the employer has over the worker’s activitieso Who is benefitting from the employmento Whether worker provides their own equipmento Whether worker hires their own helperso The degree of financial risk taken by the workero The degree of responsibility for investment and management taken by the

workero The worker’s opportunity for profit

Ratio: control is always a factor in determining whether a requisite relationship exists, and the test must be applied. Even if the court finds the person is an independent contractor, they may still be considered an employee for vicarious liability

The Course of Employment An employer is not liable for all the torts of its employees There must be some connection between the wrongdoing and the

employment relationship Captured by the rule that the tort must have been committed in the course of

employmento The phrase “course of employment” has not been interpreted narrowly

It is difficult to establish the employer’s liability for the intentional wrongdoing of an employee

Deliberate wrongdoing is intuitively outside the employee’s scope of employment

The SCC addressed the issue of intentional wrongdoing with a two-step approach (Salmond)

1. Is the act an authorized act by the employer? OR2. Is the act an authorized act within the modes of employment?

(Bazley) Three kinds of acts fall under second step of Salmon test1. The employer is liable where the employee is placed in a position that

creates or enhances the risk of wrongful act 2. The employer has created a situation of friction/tension3. The employee is dishonest

5 Bazley factors to be applied in second step of the Salmon test: (Oblates)1. Opportunity for employee to abuse power2. Extent to which wrongful act has furthered employer’s aim3. Extent to which wrongful act was related to friction, confrontation, or

intimacy inherent of employee’s enterprise4. Extent of power conferred on the employee in relation to the victim5. Vulnerability of potential victims to potential exercise of employee’s

powerEB v. Order of the Oblates of Mary Immaculate Liability was not imposed on the employer of a worker hired as a baker, boat

driver, and odd-jobs person who sexually assaulted a child in a residential school for aboriginal children, albeit that he had a residence on the school grounds

Salmon test did not take adequate account of general environment of workplace and how it contributed to employee’s wrongdoing

Judgment focused on assigned work tasks, and the majority found there was not a sufficient enough connection between the torts that occurred and the damage suffered

The dissent applied the 5 Bazley factors very differently

Note on Hospitals and Doctors Not vicariously liable for those working with “hospital privileges”

Note on Parental Liability Not vicariously liable for actions of children Parental Liability Act: Parents can be liable for a maximum of $10,000 for the

intentional actions of their children

PROTECTING PROPERTY INTERESTSSmith v. IncoBrought forward 4 torts: trespass, public nuisance, private nuisance, and strict liability (Rylands and Fletcher rule) Private nuisance:

o Chemical composition change without something else does not constitute nuisance

o No evidence that the property was unfit for the purpose for which it was purchased

Rylands and Fletcher:o Must show non-natural useo Can only recover if it is an accident, no strict liability damages caused by

intended consequences of an activity Trespass:

o The trespass was not direct, so there is no trespass Public nuisance:

o Crime, not tort action

PRIVATE NUISANCEo Noise, odour, fumes, dust, and smoke

CRITERIA: o Physical damage OR interference with comfort and enjoyment of lando Interference must be unreasonableo Plaintiff must suffer damages

BURDEN OF PROOF: o Physical damage almost always an unreasonable interferenceo Plaintiff must show an interference that is unreasonable to the ordinary

person LIABILITY:

o Strict liability: does not depend on the nature of the defendant’s conduct or any proof of intention or negligence

o Depends on the nature and extent of the interference The primary function of private nuisance is to draw an appropriate balance

between the defendant’s interest in using land as he pleases and the plaintiff’s interest in the use and enjoyment of land

Interference with enjoyment and comfort of land Things to consider:

o Character of the neighbourhoodo The intensity of the interferenceo The duration of the interferenceo The time and day of the week

o Zoning designationo The utility of the defendant’s conducto The nature of the defendant’s conducto The sensitivity of the plaintiff

Antrim Truck Centre v. The Queen(Interference with use or enjoyment of land) In order to show private nuisance the interference with the owner’s use or

enjoyment of the land must1. Show it was substantial

o A substantial interference is one that is non-trivialo Where the substantial threshold is met then you move on to

unreasonableness factor2. Show that it was unreasonable

o Reasonableness requires that, in light of all the circumstances, the harm was more than the plaintiffs could reasonably be expected to bear without compensation

o Reasonableness must be assessed in both physical and amenity private nuisance claims

RYLANDS V FLETCHER (STRICT LIABILITY) The distinguishing feature of the strict liability torts is that there is no need to

prove that the defendant was guilty of any wrongful (intentional or negligent) conduct

Introduced the concept of a non-natural use for land To establish liability under the rule, the plaintiff must show

o Non-natural use of lando An escape of something likely to do mischief from the lando And damage

Non natural: dangerous, extraordinary, special, and of no general benefit to the communityo Creation of increased danger

TRESPASS CRITERIA:

o Direct or indirect (consequential)o Physical interference to lando Intentional or negligento Voluntary

BURDEN OF PROOF: o No proof of damages requiredo Burden of proof on defendant

o Defendant must prove they did not intend to trespass, or negligently trespass

o Plaintiff only needs to prove direct interference to land LIABILITY:

o Strict liabilityPUBLIC NUISANCE Public nuisance is not primarily a tort concept A public nuisance is a crime A public nuisance may have tortious consequences if it causes special damage to

an individual persono In those situations, a private action for damages or an injunction may be

available to the injured person

ASSAULT DEFINITION

o Direct (intentional or negligent) act that causes a person to apprehend immediate harmful or offensive bodily contact (battery)

CRITERIA: o Threat must be immediateo Plaintiff does not need to be afraido No need to prove physical damage, only apprehensiono Plaintiff must be conscious of assaulto Defendant only needs to intend subjective desire to cause apprehension of

battery, not the intention to cause the batteryo Defendant does not have to be able to follow through on threato Apprehension must be reasonable in the circumstances

ONUS OF PROOF: o Reverse partial onus of proofo Plaintiff must prove reasonable apprehension of immediate or imminent

batteryo Defendant must prove they did not assault intentionally or negligently

Assault and battery are independent causes of action, normally brought together in battery claims

Where the defendant commits a surprise battery from behind, there is no assault because the plaintiff did not anticipate the battery

BATTERY DEFINITION

o Direct (intentional or negligent) and physical interference with the person that is either harmful or offensive to a reasonable person

CRITERIA: o Actual bodily contact is not essentialo The plaintiff does not need to be aware of the battery at the time that it

takes placeo Must be direct

ONUS OF PROOF: o Reverse onus of proofo Plaintiff only needs to prove that the defendant directly interfered with

them in a harmful or offensive wayo Defendant then has burden to prove that the conduct was not intentional,

negligent, or some other legal defense

o No proof of damages required LIABILITY:

o Defendant liable for all consequences of their act The defendant’s liability in battery is not restricted, as it is in

negligence, to the foreseeable consequences of his act Most common form of trespass action Directness remains an essential requirement for liability (not a battery to

poison a person’s food or to lay a trap)o The interference with the plaintiff must be sufficiently immediate upon the

defendant’s act Reverse onus is justified by the direct causal link between the defendant’s

antisocial conduct and the violation of the plaintiff’s right to personal autonomy

Plaintiffs who anticipate difficulty in proving negligence may resort to the technicalities of the tort of battery to secure a more favorable allocation of the burden of proof

Non-Marine Underwriters, Lloyd’s of London v. Scalera Sexual battery case DEFINITION: Any sexual or intimate physical contact is a battery unless there is

a free and voluntary consent to it Dissent wanted to create a new tort for sexual battery by changing onus of proof Majority responds to dissent as follow:

o In trespass actions, there is a direct connection between the defendant’s actions and the plaintiff’s injuries (where as in negligence, the injury is a result of a complicated chain of intervening acts, ie. Indirect)

o Since the mechanism of injury is direct, the defendant may have information not available to the plaintiff

o Trespass results in high demoralization costs: defendant should be called upon to explain actions if innocent

o Also, the tort of battery is aimed at protecting the personal autonomy of the individual

Conclusion:o Reverse partial onus maintainedo Direct/indirect distinction is maintainedo Trespass can be negligent or intentionalo Trespass protects fundamental rights

INFORMED CONSENT TO MEDICAL TREATMENT Consent removes “offensive” aspect of torts

o Must be freely and voluntarily giveno May be express of implied by conduct of plaintiffo May be revoked

MEDICAL TREATMENT DEFINITION:

o An actionable battery unless the attending healthcare professional has secured the patient’s consent

PROTECTS: o Right to make autonomous decisions in your own interesto Bodily integrityo Dignity

QUALIFICATIONS: o Competent adults may: consent to treatment, refuse treatment, give

conditional consent, revoke previous consent at any time before or during medical procedure

o If (1) there is no consent given OR (2) terms of the consent are clearly exceeded OR (3) nature of the surgery is misrepresentedactionable battery

o If there is no consent given, the competence of doctor or the doctor acting in good faith is no defense to battery

o Negligence is appropriate instead of battery when there is a failure to provide information about risks and benefits of surgery

Malette v. Shulman(Successfully sued for battery) Medical treatment is an actionable battery unless the attending healthcare

professional has secured the patient’s consento Battery applies only where there is no consent to the surgery at all, where

the terms of the consent have been clearly exceeded, or where the nature and character of the surgery have been misrepresented

Every competent adult patient controls her health care by exercising an unfettered power to consent to treatment, to refuse treatment, to give a conditional consent to treatment, or to revoke a consent previously given

Written consent forms provide useful evidence of consent but they are not always conclusive of the issue

A patient retains the right to revoke his consent at any time before or during a medical procedureo The physician must comply with the revocation of consent immediately

unless to do so would threaten the life of the patient or pose immediate and serious problems to the patient’s health

In Malette v. Shulman the Court held that the undated signed card that indicated that she did not want any blood administered to her under any circumstances was clear, limited in scope, and unequivocal

The defendant was held liable in battery even though he had acted in good faith and saved her life

The Court also noted that a physician who follows the directions contained in a card cannot be found liable if the card no longer reflects the true wishes of the plaintiff

Reibl v. Hughes(Negligence) If patient gives consent to the procedure but is not informed of all the risks Unexplained risk materializesbattery and/or negligence? If you did not consent at all: battery; if you were not informed about the risk

that materialized: negligence When suing in negligence the plaintiff must prove all of the elements, since

there is no reverse onus Modified objective test: plaintiff must prove that a reasonable person in the

plaintiff’s particular circumstances would not have consented if they had been informed of all the risks

Health Care (Consent) and Care Facility (Admission) Act Codifies medical consent which requires

1. Mentally competent patient2. Consent for particular treatment3. Consent given voluntarily4. Not obtained through fraud5. Informed adequately of risks

Generally, a patient’s consent must be obtained before treatment except in:1. Emergency situations2. Preliminary examinations3. If substitute decision maker gives consent

HCCFA lists a hierarchy of substitute decision makers for patient A patient can revoke consent at any time

BATTERY & FIDUCIARY DUTIES A fiduciary relationship is an equitable concept that arises where a person (a

beneficiary) has placed such reliance, confidence, power, and trust in the hands of another (the fiduciary) that the fiduciary may reasonably be expected to act with the utmost care, loyalty, and good faith towards the beneficiary

The fiduciary is required to set self-interest aside and to act, in the matter at hand, in the best interests of the beneficiary

The relationship between a fiduciary and a beneficiary may also be contractual and it is likely to be sufficient proximate to generate a prima facie duty of careo In such circumstances, the plaintiff often prefers to sue for breach of

fiduciary care There are three reasons to sue for breach of duty of care:

o The fiduciary relationship gives rise to strict obligations that are generally more stringent than those arising in tort and contract and they may elevate the standard of conduct required of the defendant

o The characterization of the relationship as fiduciary may secure a more generous limitation period for the commencement of an action

o The remedies are in some instances more generous than those of contract or tortious wrongdoing

Norberg v. Wynrib The majority of the Court relied on tort and contract principles to fashion a

remedy for the plaintiff McLachlin chose to emphasize the fiduciary nature of the physician-patient

relationship Identified fiduciary care as central to the whole relationship of physician and

patient The concept of fiduciary care, embodying the notions of selflessly acting in the

best interests of the patient, captured most fully the nature of the defendant’s wrongdoing and supported a more generous award of damages than that calculated by the majority under contract or tort law

INTENTIONAL INFLICTION OF MENTAL SUFFERING DEFINITION:

o An act or statement intended or calculated to cause harm that in fact causes objectively and substantially ascertainable physical or psychological harm

Hybrid tort with elements of trespass and negligence Three elements to the tort:

1. Needs to be an act or statement that is outrageous or extreme2. Has to be intended or calculated to produce harm (reasonable person)3. There needs to be substantial harm caused

BURDEN OF PROOF: o Proof of harmo Plaintiff must prove everythingo Causation can be indirect

Wilkinson v. Downton Defendant played practical joke on plaintiff that her husband had been seriously

injured in a car accident Plaintiff became seriously ill and suffered serious and permanent physical

consequences The court imposed liability on the basis of the defendant’s constructive intent to

shock and harm the plaintiff Plaintiff’s loss was related to the statement made by the defendant, that is when

the injury occurred Instead of fraud the court suggested a new type of tort

FALSE IMPRISONMENT DEFINITION:

o A direct (intentional or negligent) imprisonment of another person CRITERIA:

o Damages not requiredo Plaintiff does not have to be aware of imprisonmento Imprisonment: total restraint is necessaryo Detention must be unlawfulo Can be psychological by (a) intimidation by authority (b) fear of

consequences of refusal (c) apprehends use of force (d) avoid public embarrassment

ONUS OF PROOF: o Partial reverse onus of proofo Plaintiff must prove imprisonment and directness, but not falseness

(unauthorized or legally wrong)o Defendant must prove that there was no imprisonment or that they had

lawful authority Confinement of plaintiff within physical or mental boundaries without lawful

authority Trespass tort

ABUSIVE TREATMENT FROM GOVERNMENT AUTHORITIES Tort liability for harm caused by the dishonest and unlawful actions of public

officials Elements of the tort: Deliberate unlawful conduct in exercising a public function, and an awareness

that the conduct is harmful and likely to injure the plaintiff (Odhavji) Public officers include anyone who is exercising statutory authority (Freeman v

Malloy)

Odhavji Estate v. Woodhouse Canvassed the traditional scope of the tort and indicated that it has a wider

application than previously thought The tort is broadly based on unlawful conduct in the exercise of public functions

generally Established where a public officer has engaged in deliberate and unlawful

conduct in her capacity of a public officer and public officer was aware both that her conduct was unlawful and that it was likely to harm the plaintiff

Still requires proof of wrongdoing of public officers