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Law 12
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Tort Law
Ms. Ripley
Trespass to Persons and Land (All About Law, Gibson, pp. 358-364)
You have learned that there are two main types of torts: unintentional (negligence) and
intentional. The main intentional torts are trespass to another person (assault and battery, false
imprisonment), trespass to land, and nuisance.
Assault and Battery
Assault as defined in tort law differs from assault as defined in the Criminal Code. In tort law
assault occurs when the victim has reason to believe or fear that bodily harm may occur. Any
threat of apparent or immediate danger or violence is an assault. The essential element is the
victim's fear. No actual physical contact is necessary. Assault can occur without battery. If
someone swings a fist at another person and misses, an assault has occurred. The victim may
be awarded damages for the fear and dread experienced as a result of that action. Pointing an
unloaded gun is assault if the victim believes the gun is loaded or feels fear or danger.
Threatening words, such as "I'm going to knock your head off' is assault if the threatened person
has a reasonable belief that the other person intends to carry out the threat. Other examples of
assault include unleashing a barking dog, shaking a fist, or a group of people swarming around
a person in a hostile manner.
Battery is the follow-through of assault and is the most common form of trespass to another
person. Battery is the unlawful and intentional touching of a person without that person's
consent. The actual physical contact can be offensive or harmful. It may exist even if no injury
results. Kissing or hugging someone without the person's consent can be battery, especially if
the action is offensive or upsetting to the recipient.
Arthur v. Wechlin
[2000] B.C.W.L.D. 1150
British Columbia Supreme Court
The 38-year-old plaintiff and longtime Elton John fan Shelley Arthur and a friend attended an
Elton John concert at Vancouver's Pacific Coliseum in September 1995. The 43-year-old
defendant, Jerry Wechlin, his girlfriend, and two friends were seated behind them. During a
ballad sung by Mr. John, the defendant yelled out insults and profanity at the performer. The
plaintiff asked the defendant to take his party to the lobby so she and others could enjoy the
concert.
Although no smoking was allowed in the arena, Arthur had a lit cigarette in her hand. When
Wechlin told Arthur that smoking was not allowed, she agreed to put it out if he stopped
yelling and disrupting the concert. As she dropped the cigarette, Wechlin thought she was
throwing the butt at him. He grabbed her wrist, held it for a couple of seconds, lifted her out of
her seat, and turned her around, causing- immediate pain. Wechlin believed that Arthur was
trying to burn him with her cigarette.
Arthur brought an action for damages. Evidence at trial indicated that Arthur's shoulder and
neck were seriously injured by this incident. Her ability to work as a court reporter was
severely restricted. The trial judge awarded her nearly $500000, mainly for lost future income
because Arthur was one of the few people in her community skilled in this field.
For Discussion
1. On what grounds would the plaintiff base her action?
2. What defence or explanation would Wechlin use to justify his actions?
3. On the balance of probabilities, which version of this incident is more credible? Explain.
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Law 12
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Tort Law
Ms. Ripley
4. What is your opinion of the trial judgment? Explain.
You Be the Judge
In Malette v. Shulma i (1990), the Ontario Court of Appeal ruled that the defendant doctor committed a battery on the plaintiff. Georgette Malette, a Jehovah's Witness, carried a signed card
refusing blood transfusions. Shulman ignored the card and gave Malette a blood transfusion to
save her life. The plaintiff was awarded $20 000.
• Why was the doctor liable for battery? Should the plaintiff be able to sue the doctor when his
actions saved her life? Discuss with a partner.
Assault and battery are usually tried together, since assault often occurs before or with
battery. In fact, the distinction between these two torts is disappearing. Most cases based on
assault include battery. The damages awarded in such actions compensate the victim for
harm or loss. If an assault was extremely vicious or committed without reason, the court may
also award punitive damages.
False Imprisonment
False imprisonment involves confining or restraining a person without consent in a specific
area. The word "false" means "wrongful" or "unauthorized"; "imprisonment" refers to a
particular area that is not necessarily a prison. "Wrongful confinement" might be a better term
for this tort. Confinement may be through physical restraint, barriers, or legal authority.
Imprisonment must be a total not a partial restriction. A plaintiff must attempt every reasonable means of escape before bringing an action for false imprisonment.
A common example of false imprisonment occurs when store detectives mistakenly detain
an innocent person whom they suspect of shoplifting. Actual physical restraint is not
necessary for false imprisonment to exist. If a suspect is stopped by store security and has a
genuine fear that an embarrassing scene will occur if he or she tries to leave, false
imprisonment exists. In fact, it is enough for a store employee to shout, "Grab that thief!" for
false imprisonment to exist.
Trespass to Land
Trespass is the act of entering and crossing another person's land without permission or
legal authority. As in battery, no specific damage needs to occur for trespass to exist.
Simply going on a person's property without permission is a trespass, whether or not
trespass was intended. Remaining on that land when asked to leave is also tres pass. So
is throwing an object onto another person's land, or bringing an object onto another's land
and not removing it. Cutting down a tree, letting it fall onto a neighbour's land, and not
removing it is a trespass. As long as the tree remains on the land, there is a continuing
trespass.
Ownership of land gives the owner the right to use the land both above and below the
surface of the earth. So, if Iris tunnels through to Kevin's land to access oil there, Kevin
can successfully sue for trespass. Similarly, stringing wires or lines over another person's
land is trespass.
However, statutes permit the use of all space at certain distances above land. This
allows aircraft to fly on regulated flight paths above private property.
The right of occupiers to use property is also recognized by provincial landlord and tenant
statutes. For example, a landlord wishing to enter a tenant's rented property must notify
the tenant in advance.
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Tort Law
Ms. Ripley
Nuisance
What is a nuisance, and how does it differ from trespass? A nuisance involves one
person's unreasonable use of land that interferes with the enjoyment and use of adjoining
land by other persons or a community. Although trespass is always an intentional tort, a
nuisance may be intentional or unintentional. Trespass laws protect the possession and
use of property, while nuisance laws protect the quality of that possession and use. For
example, if a farmer enters her neighbour's property without permission and without
reason, she is guilty of trespass to land. If the same farmer sprays her fruit trees and the
spray drifts onto a neighbour's property, causing him to fall ill, the neighbour can claim
damages for nuisance. Nuisance has been used to try to prevent, or to obtain damages
for, excessive odours, noise, pollution from factories, and the malfunctioning of sewage
systems.
In recent years, nuisance has been highlighted because society has become more
concerned about environmental pollution. Growing awareness of environmental problems
has resulted in more government regulations. Local zoning bylaws attempt to keep land for
industrial and residential use some distance apart, in the best interests of both groups.
Despite these laws, a citizen still has the right to take civil action. Every occupier is
entitled to make reasonable use of his or her property.