108C | Torts | Town
LAW 108C | TORTS
MIDTERM OUTLINE | SHORT | 2013 | MCDORMAN
SANDRA TOWN
TOWN | Torts
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Responsibility
Joint
tortfeasor
Vicarious
liability
(Strict – no
fault
necessary)
Joint &
Several
Liability
Contributory
Negligence
2+ people acting together to commit a tort & you’re not sure who did it
Requirement Common design
Essential, non-trivial part
Defense
Looking on with approval
Facilitation (A sells gun to B, B shoots C, A not JT)
Liable for the actions of another based on the relationship bt/ them
Requirement Requisite relationship must exist
Risk increased when employer empowers employee
Salmond Test (old)
 Act authorized by employer
 Act occurs in scope of employment
Bazley Factors (strong connection test)
 Opportunity to abuse power
 Extent to which act furthered ER’s aim
 Extent to which act relates to confrontation/intimacy in ER’s
enterprise
 Extent of EE power
NOTE: opportunity is not sufficient  STRONG CONNECTION bt/
what’s asked/authorized and what was done
Defense
Employer – Independent Contractor
Parent – Child
Trustee - Beneficiary
Policy
If you bring the risk in, you should be responsible for the harm
Employers better able to pay than employees, able to implement risk
reduction plans
Together and separately liable
 Degree of fault irrelevant
 Can sue together and Pl. determines who pays how much
Pl. conduct contributes to tort
 Degree of fault matters – crt factors into damages
Cook
Sagaz
Oblates
Negligence
Act
Negligence
Act
Types
Nuisance
Need damage, but no fault
Intentional
Need fault, but no damages
Negligence
Need damage and fault
STRICT  liable for injuries no matter
what precautions
Private Protects use and enjoyment of
Public
land
DELIBERATE  acts with intent to interfere
c/ a right (probable that harm will follow)
Land
Dominion over property
Conduct falls below that
which is required
Assault
Battery
Medical Consent
Bodily Integrity
Mental Health
Emotional tranquility
False Impr.
Freedom
Consent is absolute defence against
intentional torts
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Private Nuisance – Land
Strict
Requirements
Onus on… Pl.
Defense
Don’t have to prove fault, just that nuisance occurred
Damage/interference to Pl. use/enjoyment of the land
Physical
 Material/substantial
 Actual (NOT potential for future damage)
 Readily ascertainable (measurable, but not necessarily visible to naked eye)
Amenity
 Substantial interference c/ beneficial use of land (eg. economic loss)
Pl. must have land interest (eg. own, rent, related to owner/renter)
Must prove Def. directly trespassed (whether intentionally or negligently)
 Must be physical trespass, but can be by an object OR person
 Trespass must be unreasonable
Directness – no intervening acts bt/ Def. actions and trespass
Burden of proof on Def.
Consent – Def. proves Pl. was ok with it
Reasonable
 Character of neighbourhood
Not about Def. conduct
 Frequency/duration/severity of interference
Inco
Antrim
Inco
Scalera
Antrim
Note: Onus on Pl. greater in Private nuisance – R v. F is stricter
Rylands v.
Fletcher
Strict
Criteria
Liable for escape of “ultra-hazardous” substance that damages Pl. property
1. Def. involved in non-natural use of land (inappropriate to the place)
2. Def. brought sm/t to the land that could do mischief if it escaped
3. The substance escaped (doesn’t have to be isolated; not hazardous until accumulated)
4. Damage was caused by the escape
Defense Result was intended – eg. smokestack in Inco there to let the waste out
Eg. floods, gas leaks, chemical spills, sewage overflow, fire, dangerous animals, etc.
Trespass to land – interference with dominion over property
Intentional
Requirements
No need to have damages b/c intent is to harm
Voluntary, direct, physical intrusion onto land by Def.
 Includes – entering c/out permission, placing/propelling sm/t onto land from afar
Assault – Reasonable apprehension of imminent physical harm
Intentional
Requirements
Onus on… Pl.
Defense
No need to have damages b/c intent is to harm
 Legal wrong is act of disturbing my sense of security
 Must be aware it happened – must feel apprehension
No contact
Then it’s battery
Scalera
Direct action
Intentional OR negligent
Fault
Def. has to have done sm/t wrong
NO need to be aware it happened
Can sleep
Must prove causation bt/ action and harm
 Fault  it’s not enough to just claim it happened
Unintentional
Burden of proof on Def.
Consent
Remoteness
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Battery – Physical harm caused by direct action
Intentional
Requirements
Onus on… Pl.
Defense
Sexual Battery
No need to have damages/experience harm b/c intent is to harm
 Legal wrong is the contact
 Can bring a claim even if you didn’t know it happened (eg. slept through it)
Direct action leading to physical harm
Scalera
 Can be negligent  negligent act causes the battery (eg. elbows in a
crowd)
Action plus harm/offense (more than trivial)
NO need to actually experience harm  the contact itself is the wrong
Must prove there was contact leading to damage
 Physical contact is the big issue, intent behind the action doesn’t matter
Trivial contact RE ordinary life (eg. jostled in crowd)
Burden of proof on Def.
Consent
 Scalera dissent wanted to move burden of proving consent
to Pl. – didn’t actually happen
Norberg
 Includes failure to resist
 Doesn’t count if
Remoteness
Current tort law doesn’t effectively deal with it explore relationship bt/ power
Norberg
imbalance and consent
Analogy to K Law (pg.9)
Fiduciary Duties (pg.9)
Recognizes that sm/t don’t have free/equal
Inherent unequal balance bt/ 2 parties gives rise
bargaining powers (Norberg)
to special considerations (Norberg dissent)
 F. has area of discretion/power & B. is
1. Does there exist a special power-dependent
particularly vulnerable to F. holding it
relationship?
 Breach if F. uses the power for their
2. Is there exploitation?
own good (all Pl. has to prove)
Consent irrelevant – responsibility lies on F.
IF YES – no consent (both necessary)
(they should know better)
Not all relationships so unbalanced – consider age, minority, profession, education, etc.
Medical Consent
General Rule
Requirements
Duty to Inform
Onus on… Def.
Defense
Emergency
Exception
Can give, refuse, revoke consent – regardless of the consequences
(right to control interference to your body)
 CL principles codified in Act
Full, free, & informed  as much information as a reasonable person would need in
order to give consent
 Negated by duress
Not liable in battery for failing to inform of all the risks, as long as treatment is
substantially that which was consented to by the patient
 Liable if fraudulent misrepresentation, or perform sm/t other that
treatment consented to
 Failure to inform more likely to be negligence
To prove consent – otherwise it’s battery
Consent
 Express or implied
 Can include failure to object (circumstantial)
Privilege to treat c/out consent to preserve life
 Unconscious
 Incapable of making a decision
 No one legally entitled to give consent around
 Urgent – waiting would cause harm
 Reasonable person would consent
Negated by advance instruction
Mallette
Reibl
Reibl
Mallette
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Mental Security - intentional infliction of mental suffering
Intentional AND trespass
Requirements
Floodgate
Need both intent to harm AND actual harm
Act/Statement must be outrageous/extreme
Intent to produce harm
Proof of harm/damage (objective, medically understood – physical or
psychological)
Where do you draw the line? Reasonable person would find conduct
shocking/outrageous
Downtown
False Imprisonment – confined against your will c/out legal authority
Intentional
Requirements
Onus on… Pl.
Defense
Reasonable efforts
Don’t need damages b/c intent is to interfere with fundamental right to freedom
False
Lumba
Imprisonment
 Physical OR mental
Directness
Just to prove they were imprisoned
Lawful (ie. authorized)
Burden on Def.
Wasn’t actually imprisonment
Mistake of fact is not a defense, no matter how hard you try to figure it out
 BUT there is a distinction bt/ mistake and accident
 Must have intent (no intent in accident t/f no violation)
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