TORTS CLASS NOTES Intentional torts
Harm caused by one person to another's person, property or
reputation.
Distinguish from crimes and breach of contract.
Tort is remedied usually by payment of damages or compensation
to persons injured by the fault of another. Damages will be
discussed later.
Intentional and unintentional torts. The latter usually require proof
of negligence but there are instances of strict liability and even
absolute liability.
Vicarious liability
Particularly for acts of employees in course of employment.
Assault and battery (trespass to the person).
Assault is an act that makes another person believe he or she is
about to struck (i.e. victim of a battery). Faking a punch, pointing a
gun, uttering threats of immediate harm are examples of assault.
Questions are: did the victim fear a battery; and would the
reasonable person in the victim's circumstances have feared a
battery? If answer is yes, there is an assault. Often a battery
follows an assault.
Battery requires unwanted physical contact: a punch, a touch, a
kiss, a bullet in one's arm, a hockey stick to the head, or unwanted
medical treatment. Motive or good will of the attacker is not
relevant. See Tardif v. Wiebe 1996 Carswell B.C. 2438
(B.C.S.C.).
See p. 99 of Yates 8th edition.
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Also Osz v. City of Calgary – snowball. City vicariously liable.
Defences
Consent – boxers, hockey players, soccer players.
See R. v. Bertuzzi. Exceeding boundaries of consent. McSorley
and Brasheer.
See Malette v. Shulman (1990) 67 D.L.R (4th)321. Blood
transfusion given to woman known to be JW and against
transfusion on religious grounds. If no consent it is a battery. Even
if beneficial, doctor liable for battery. While damages may be
ordered even without proof of physical harm, damages payable in
such cases are partly at the discretion of the judge.
Note refusal of life-saving medical treatment by a parent on behalf
of a minor child is likely not permitted so that the parent cannot
sue for battery of the child. The child also is unlikely to be
successful.
Self-defence
Reasonable force is permitted if defending oneself or one's
property. A defence is also available if one performs a citizen's
arrest – e.g. rugby tackle an escaping thief. Again only reasonable
force must be used. A boxer is held to a higher standard than
others. See the Tardif case.
Trespass to land
Ignorance not a defence unless no control over the trespass.
Throwing stuff onto property or erecting a structure without
consent will be trespass.
See Costello v. City of Calgary p.101. Expropriation of land
was unlawful. Leased to a third party. Trespass by the City.
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10 unit motel on land wanted planning permission for 40 unit.
Expropriated by City. Illegal. Costello sued for trespass.
(1997) 209 A.R. 1 (C.A.).
Half a million $$ in damages and around the same for lawyers'
costs. Profits that Costello would have earned were counted.
Ignorance and lack of intent are not relevant to the existence of
tort of trespass.
Trespasser usually not eligible for damages from occupier if
injured while trespassing. Only duty is not to be reckless or
willfully cause harm. E.g. undue force in evicting trespasser.
But greater duty to trespassing minors.
False imprisonment
Not permitted unless legally entitled.
See Bahner v. Marwest Hotel (1969) 6 D.L.R. (3rd) 322 (B.C.S.C.)
Also punitive damages.
See also Chopra v. Eaton's where excessive force was used and the
detention was excessive (headlock, cut, handcuffed)). (4 hours).
Can arrest if reasonable grounds to believe crime committed. Must
deliver to a police officer. Initial arrest warranted but subsequent
actions not.
Private Nuisance
Interference with another's enjoyment of property.
Noise, smoke, air pollution, golf balls.
Can include unwanted phone calls.
Motherwell v. Motherwell
See also golf balls. Private nuisance. Compensation and injunction.
Willow Park Golf course.
Pyke odours from mushroom farm. Exceeded normal farm practice
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Public Nuisance
Rare and by government B.C. v. Canadian Forest Products Ltd.
2004 SCC 38. Escape of a controlled burn.
SCC held Ryan v. Victoria City [1999] 1 S.C.R. 2010 (para. 52)
"any activity which unreasonably interferes with the public's
interest in questions of health, safety, morality, comfort or
convenience is capable of constituting a public nuisance".
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