Chapter 2 – Part 1: Intentional Torts Classification: General Learning Objectives • Define and differentiate a tort from a crime • Identify several types of intentional torts • Outline defences available to alleged tort Classification: General What is a Tort? Torts are ‘CIVIL WRONGS’ Tort can be the subject of a civil court action (between people) where the wronged (or ‘injured’) person sues wrongdoer for compensation for wrongful conduct. Compare this to:- • criminal matters, society (through a crown prosecutor) brings the action to punish the offender – “ R. v John Doe” • contract actions which are brought by a party because the agreement has been breached. NOTE: Usually in a tort action there is no contract between the individuals. Classification: General What is a Tort? (cont.) Employers Liability. • Employers are vicariously liable for all torts committed by employees during the course of their employment – While doing what they are employed to do. • NOTE: Wrongful conduct by a person may be both a crime and a tort. Classification: General Types of Torts There are intentional and unintentional torts. Intentional Torts are: • Assault and battery • False imprisonment • Trespass • Nuisance • Defamation Classification: General Types of Torts cont. Unintentional Torts are: • Negligence • Professional Liability Classification: General Intentional Torts • Must be a deliberate act • Need only intend the conduct, not the results • If conduct is accidental, it would be negligence, rather than an intentional tort Classification: General Assault and Battery Is a ‘trespass to the person’. Is an intentional tort and requires the Plaintiff to show: • Intentional physical interference with another person. Note: Some forms of assault and battery may also be criminal offences Classification: General Assault and Battery cont. Assault Is a threat (from victim’s perception) to harm another and that threat • Must be immediate • Must be physically possible to carry out • Need not be harmful, just unwanted • The threat must be intentional EXAMPLE: pointing an unloaded gun at someone Note: Physical contact is not required Classification: General Assault and Battery cont. Battery Is physical contact which is • Intentional 245033 Range Road 33 • Unwanted Calgary, AB T3Z 2E9 • Involves physical contact • Even if contact is beneficial (such as medical treatment), if it is unwanted, it is still battery. Hence the need to give consent to surgery or to play sports. • Can include an unwanted kiss. Classification: General Only 2 Defences to Tort of Assault and Battery There are only 2 defences available for someone accused of assault and/or battery in tort. These defences are: 1) consent (informed consent) 2) self-defence Students should not that it is NOT a defence to say they deserved it or that they provoked me. Classification: General CONSENT In most cases, it is a defence to an allegation of Assault or Battery that the ‘victim’ (or Plaintiff) consented. Consent – Must be informed consent – Conduct must not exceed consent Classification: General Defence of Self Defence Self Defence. If the assault or battery occurred when the ‘assailant’ (defendant) was defending him/herself, then Selfdefence may be raised to defend the allegations of assault & battery. ‘Self Defence’ permits you to use force provided: – You only use reasonable force in defence of yourself – You must be responding to an immediate threat Classification: General TORT of False Imprisonment • Unlawful restraint – Restraint may be physical (handcuffs, locked in a room), or – May be achieved by simple compliance if victim thinks there is no choice (eg demand that person remain with you). NOTE: False Imprisonment can arise when a suspected shoplifter is detained until police arrive. If they are innocent of shoplifting, then their detention = false imprisonment. Classification: General False Imprisonment – Citizen’s Arrest A private citizen has the power to arrest someone to defend his/her person or property. Where a citizen’s arrest takes place: • The arrest must be done within a reasonable time of the offence taking place and • You must then deliver that person to the police without delay. • If you comply with these principles, the imprisonment’ is NOT actionable (i.e. it is lawful). Classification: General False Imprisonment – Citizen’s Arrest Relevance to business people. If you have reason to suppose that an offence has been committed (shoplifting), you can make a citizen’s arrest. WARNING: If you are mistaken and they have not committed a crime (however suspiciously they were acting) then their detention does amounts to False Imprisonment and you could be sued for False Imprisonment. Classification: General Trespass What is Trespass? Coming onto another’s property without permission or authority. • Mistake (e.g. as to property line) is NO defence • Intent to trespass? You do not need to intend to trespass, you only need ‘intend’ the activity (e.g. hiking, walking). Classification: General Trespass – Relevance to Businesses Customers attend your business premises on the basis of your implied permission. This Permission can be revoked by the business owner. Once revoked, customer is trespassing. NOTE: If permission is revoked, you must ask the person to leave and give the person opportunity to leave. If they refuse to leave, you may eject them using reasonable force only. (i.e. no more force than is necessary to forcibly eject them. Classification: General Trespass – Relevance to Businesses • Damage – no damage needs to have occurred. • Indirect trespass = throwing something onto another’s property and is actionable. • Continuing trespass – eg building, fence, etc. • Relief granted by Court: Injunction (to prevent person from returning to your premises/damages. DEFENCES TO TRESPASS. The only defence for trespass is that the intruder had no control over where he/she was – eg hit by a vehicle and propelled onto the land. Classification: General Nuisance What is Private Nuisance? Using your property so as to substantially interfere with your neighbour’s use of his/her property. • The use you are making of your land must be inappropriate (e.g. excessive smoke, odours, water, noise, golf balls also use contrary to municipal zoning is ‘inappropriate’);The ‘Substantial Interference’ with the neighbour’s use/enjoyment must have been ‘reasonably foreseeable’. • Remedies: damages or an injunction Classification: General Defamation What is Defamation, Libel and Slander? Defamation is the making of a false statement about an identifiable person, (company, or product) which in the mind of a reasonable person would lower that person’s opinion of the person identified in the statement. • Libel – written defamation – Also includes broadcasted defamation • Slander – spoken defamation Classification: General Defamation cont. Relevance to Business • Internet communications now an important cause of defamation actions. • Competitors may spread false rumours to deter customers. Classification: General Defamation cont. • Must refer to the plaintiff • Must be ‘published’ i.e. Communicated to a third party • Libel may also be criminal • It is the actual message that is reviewed (not the actual words). Innuendo can be part of a defamatory message (e.g. photos in a news article of a couple, where both are known to be married to others). Classification: General Defences to Defamation • Justification – Substantially true – Defendant must prove statement was true – ‘Mistake’ or a belief that the statement was true, is NO defence • Absolute privilege – Statements made on floor of legislature or Parliament, in senior government committees, or while giving testimony in trial • Qualified privilege – If statement made pursuant to a duty, person cannot be sued if it turns out to be false – Allowed if person who made statement thought it was true, made statement without malice, and only communicated it to those with need to know Classification: General Defences to Defamation • Fair comment and Responsible Communication – Fair Comment is expression of opinion about public figures, works, etc. – Must be based on true facts known to public – Must be made without malice – Responsible Communication protects media if reasonable diligence used to verify facts even if facts turn out not to be true – This defence is used mostly by the media Classification: General
