JENNA DAVIS THOMPSON RIVERS UNIVERSITY LAWF

Transcription

1 TORTS WINTER 2016 JENNA DAVIS THOMPSON RIVERS UNIVERSITY LAWF 3080

2 Intervening Forces in Negligence... 7 Harris v TTC and Miller (1967) SCC... 7 Second Accident... 7 Wieland v Cyril Lord Carpets, QB (1969)... 7 McKew v Holland, HL (1969)... 7 Medicial Error in Treatment... 7 Mercer v. Gray [1941] 3 DLR Price v Milawski (1977), 18 OR (2d) 113 (ON CA)... 8 Intentional and Criminal Acts... 8 Stansbie v Troman [1948]2 KB Crotin v National Post [2003] O.J. No Ahmed v. Stefaniu, [2006] Ont CA... 8 Fullowka et al. v. Pinkerton's et al., 2010 SCC Intermediate Examination (Product Liability)... 8 Ives v Clare Brothers Ltd., HC Ont (1971)... 9 Smith v. Inglis Ltd. (1978) NS CA... 9 Good-Wear Treaders Ltd. v. D&B Holdings Ltd. et al., (NSCA 1979)... 9 Warnings and the Learned Intermediary... 9 Hollis v Dow Corning, SCC (1995)... 9 Defences to Negligence Contributory Negligence Negligence Act, R.S.B.C Seatbelt Defence Galaske v. O Donnell, SCC (1994) Yuan v Farstad (1967, BC) Voluntary Assumption of Risk Joe v. Paradis, 2008 BCCA Hambley v. Shepley, Ont CA (1967) Crocker v. Sundance, SCC (1988) Illegality Hall v. Hebert, SCC (1993)

3 British Columbia v. Zastowny, SCC (2008) Exclusion Clauses Crocker v. Sundance, SCC (1988) Tort Liability of Public Authorities Negligence Liability of Statutory Public Authorities Cooper v Hobart Proximity Taylor v Canada, Ont CA (2012) Fullowka v Pinkerton s of Canada, SCC (591) Negligence Immunity Policy Operational Distinction R v Imperial Tobacco, SCC (2011) Misfeasance in Public Office Roncarelli v Duplessis, SCC (1959) Northern Territory of Australia v Mengel (1995) Three Rivers District Council v The Bank of England (2004) Odhavji Estate v Woodhouse, SCC (2003) LM v BC (Director of Child, Family and Community Services) Trespass and Intentional Torts History Goshen v Larin, N.S.C.A. (1974) (Canada) Dahlberg v Naydiuk (Man CA): Non-Marine Underwriters, Lloyd s of London v Scalera Assault I. De. S. & Wife v W. DE. S. (1348) Stephens v Myers, (1830) Tuberville v. Savage, K.B. (1699) Bruce v Dyer, Ont. C.A. (1970) Mainland Sawmills v USW, Local , BCSC (2007) Warman v Grosvenor, OSCJ (2008) Battery Cole v Turner, (1705)

4 Collins v Wilcock (1984 Eng) Bettel v. Yim, Ont Co Ct (1978) Foreseeability in Battery Sexual Wrongdoing Norberg v. Wynrib, [1992] 2 S.C.R M.(K.) v. M.(H.), [1992] 3 S.C.R. 6. K.M BC Limitation Act Other Tort Actions Intentional Infliction of Mental Suffering Elements of the Intentional Infliction Wilkinson v Downton, Q.B. (1897) False Imprisonment Requirements of False Imprisonment Negligent False Imprisonment Bird v Jones (1845) 7 QB Psychological, Moral Restraint Chaytor v London, New York and Paris Ass n, of Fashion Ltd and Price, Newf. S.C. (1961) False Arrest Malicious Prosecution Trespass to Land Trespass to Land in Canada Trespass Act Entick v Carrington Cooper v Crabtree Harrison v Carswell SCC Wildwood Mall LTD v Stevens (SASK) Tree Trespass Turner v Thorne Defences to Trespass Possible Defences to Liability:

5 Consent Non-Marine Underwriters v Scalera (2000 SCC) Norberg v Wynrib (1992 SCC) Consent in the Sporting Context Charland v Cloverdale Minor Baseball Association (2013 BCSC) Consent in Medical Context Emergency Consent Malette v Schulman (1990 Ont CA) Marshall v Curry 1933 NS SC Self-Defence and Defence of Property Cockcroft v Smith (Eng 1705) MacDonald v Hees (1974), 46 DLR Killing in Self-Defence Defence of 3 rd Persons Defence of Property Green v Goddard; Bird v Hollbrook MacDonald v Hees Necessity Dwyer v Staunton (1947 Alberta) Vincent v Lake Eerie Transportation Co (1910) Southwark London Borough v Williams (1971 UK) Strict Liability Vicarious Liability Vicarious Liability in Employment Hern v Nichols (1709 UK) Ontario Ltd. v Sagaz Industries Canada Inc. (SCC 2001) Salmond Test Bazley v Curry Bazley v Curry SCC Jacobi v Griffiths (1999 SCC) EB v Order of the Oblates of British Columbia (SCC) KLB v BC (SCC 2003); MB v BC (SCC 2003)

6 EDG v Hammer 2003 SCC Blackwater v Plint Steps in Employment Vicarious Strict Liability Rylands v Fletcher (1868 UK) Idea of Non-Natural Use Defences to Non-Natural Use Strict Liability for Fire Strict Liability for Animals Nuisance Nuisance Public Nuisance Hickey v Electric Reduction of Canada BC v Couillard Mint v Good (1951 UK) Private Nuisance Underground Water Pugliese v National Capital 1979 SCC Tock v St John s Metropolitan Board SCC Defence to Nuisance of Statutory Authority Heyes v South Coast BC Transportation Authority (2011 BCCA) Antrim Truck Centre v Ontario SCC Public Authority Defendant Material Damage Nor- Video v Ontario Hydro 1978 Ont HC Hunter v Canary Wharf 1997 Eng Appleby v Erie Tobacco (1910 Eng) Framework for Negligence Framework for Negligence Liability of Public Authorities Framework for Misfeasance in Public Office Framework for Intentional Torts and Trespass

7 Framework for Defences to Trespass & Intentional Torts Framework for Strict Liability Framework for Nuisance

8 If any claim fails, always try to run it through the negligence analysis. Intervening Forces in Negligence Harris v TTC and Miller (1967) SCC Facts: There was a flash fire on stove (because chef allowed grease to build up), and it was extinguished by an employee. Extinguisher made hiss noise and patron shouted that there was a gas leak. Everyone ran to exit and plaintiff was injured. Issue: Does the injury flow from the fire/grease build up? Decision: Too remote; restaurant not liable. It was extinguished properly, and the patron overreacted. Second Accident Wieland v Cyril Lord Carpets, QB (1969) Facts: Plaintiff was negligently injured on bus due to negligence. She had to wear collar around neck, and could not properly see through glasses. Due to the inability to see, she fell down the stairs and aggravated her injury and broke her ankle. Issues: Was the second accident separate, or was it within the foreseeable scope of consequences of the first event? Decision: Judgement for the plaintiff. Second fall was within the scope of the consequences of initial act (because fall was shortly after she got the collar, and because she was being helped down the stairs by her son). Ratio: It can be foreseeable that one injury may affect someone s ability to cope with life, and therefore may be the cause of another injury. McKew v Holland, HL (1969) Facts: Leg was weakened in accident and it sometimes gave way. He was walking down steep stairs (no assistance, no hand rail) and his leg collapsed. He tried to jump, and broke his ankle. Issues: Is the new damage too remote from first incident? Decision: Not reasonably foreseeable. Person with weak leg has duty to be careful. His conduct (novus actus interveniens) may have caused break. Medicial Error in Treatment Mercer v. Gray [1941] 3 DLR 564 Negligent medical treatment will be a novus actus interveinens (new intervening act) But if the treatment is not negligent (but causes further injury), the damage is not too remote from the original accident 7

9 Price v Milawski (1977), 18 OR (2d) 113 (ON CA) Facts: Plaintiff injured ankle. Doctor sent x-ray for foot so it came back fine. Plaintiff kept having pain and was sent to orthopedic surgeon. Surgeon relied on initial x-rays, and put cast on for sprain. Plaintiff went to second surgeon who took new x-rays and saw a fracture. The delay in setting break caused permanent disability. Issues: Is the 2nd doctor s act (while relying on intial x-rays) an intervening act? Decision: Not an intervening act. It was reasonable for 2nd doctor to rely on x-rays. Ratio: A person who does a negligent act may be held liable for future damages arising from a subsequent negligent act of another if the subsequent negligence and subsequent damage was reasonably forseeable as a result of his own negligence Intentional and Criminal Acts **need a high degree of forseeability when it is about a criminal act Stansbie v Troman [1948]2 KB Decorator left door open and thief entered Leaving door unlocked was negligence not taking reasonable care to guard against break-ins Crotin v National Post [2003] O.J. No. Crotin requested a stop of newspaper delivery newspaper didn t stop delivery when requested and thief broke into home theft was not too remote, National Post liable Ahmed v. Stefaniu, [2006] Ont CA Facts: Psychiatrist negligently changed status of involuntary patient to voluntary. He left and moved in with his sister, who he later killed during a manic episode. He was involuntary because he had threatened to kill sister before. Decision: Reasonably foreseeable; doctor is liable for negligence. Fullowka et al. v. Pinkerton's et al., 2010 SCC 5 Facts: Strike at mine and angry employee set off a bomb which killed the non-unionized workers (strike breakers). Issue: Did the mine have duty to protect the non-union workers? Decision: Yes, there was a duty, but no breach. Intermediate Examination (Product Liability) Items cannot be manufactured negligently Manufacturer has the duty to warn of dangers and risks Products pass through many hands from manufacturing to the ultimate consumer when does an intervening force excuse the manufacturer? 8

10 Ives v Clare Brothers Ltd., HC Ont (1971) Facts: Furnace is manufactured and installed by Clare Bros. Installation was inspected by Twin City Gas. Furnace was defective and consumer called Twin City 3 times Twin City failed to fix or warn of danger. Leaked caused injury to plaintiff. Issue: Manufacturer was negligent, but did the inspection by Twin City break the chain? Decision: No. Both had duties, both breached duties, and both breaches caused damage. Contributory negligence by both. Smith v. Inglis Ltd. (1978) NS CA Facts: Plaintiff is electrocuted by fridge. Two reasons: fridge is defective and shorted; AND someone removed the third prong that should ground the fridge. Issue: Did the manufacturer need to give a warning regarding dangers associated with cutting off prong? Decision: No. It is unreasonable to think they would cut it off they even sell adapters for that reason. Good-Wear Treaders Ltd. v. D&B Holdings Ltd. et al., (NSCA 1979) Facts: Tire was not defective, but was not supposed to be used on a certain type of vehicle. Driver was warned not to use it that way, but they sold it to him anyway knowing what he was going to do. Decision: No liability. There are policy reasons why we cannot prohibit people from selling an item even if they know the person is going to do something stupid with it. Warnings and the Learned Intermediary Manufacurer owes duty of care to ultimate consumer (Donoghue) this includes a duty to warn of risks Warnings must be explicit and reasonably communicated What about when there is a learned intermediary? o Example/ product is sold to a doctor, who then provides item to consumer. If the manufacturer warns doctor (learned intermediary), does that meet their duty to warn consumer? Hollis v Dow Corning, SCC (1995) Facts: Doctor did not warn breast implant patient about the possibility of the implant rupturing. Doctor received little warning from manufacturer about this danger. Issue: Was Dow (manufacturer) liable for failing to warn the learned intermediary (doctor) about the possibility of rupture? Analysis: Decision: Dow breached his duty to warn the doctor, and is therefore liable to the plaintiff. Damage to the plaintiff flows from the failure to warn the doctor. Ratio: For products intended to be used under supervision of an expert, the manufacturer can sometimes fulfil duty to warn consumer by warning the learned intermediary (learned means they are fully apprised of the risks ). It would be reasonable for the manufacturer to rely on the intermediary to convey the risks to ultimate consumer. 9

11 Defences to Negligence Defences: contributory negligence, seatbelt defence, voluntary assumption of risk, participation in a criminal or immoral act Contributory Negligence Doctrine of last clear chance: o Even if plaintiff was negligent, defendant was liable if they had the last clear chance to avoid the injury 3 ways plaintiff can contribute to negligence: o Contributing to event that caused injury o Exposing themselves to a risk of being involved in injurious event o Failing to take reasonable precautions to minimize injuries (should an injurious event occur) example/ seatbelt defence Negligence Act, R.S.B.C (1) If damage/loss is caused by 2+ people, the liability should be divided in proportion to the degree to which each person was at fault. (2) Despite subsection (1), if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability must be apportioned equally. (3) Nothing in this section operates to make a person liable for damage or loss to which the person's fault has not contributed Seatbelt Defence Galaske v. O Donnell, SCC (1994) Facts: Plaintiff (8) and father were passenger s in defendant s truck. P was not wearing seatbelt. Non-negligent accident occured. P was injured because he was not wearing seatbelt. Issue: Did driver have the duty to ensure child was wearing a seatbelt? Decision: Driver owes duty to passengers to take reasonable steps to prevent injury this includes ensuring those under 16 wear a seatbelt. The responsibility in this case is shared between driver and father because the father was in the car. Ratio: Duty to ensure those passengers under 16 are wearing a seatbelt. Yuan v Farstad (1967, BC) Ratio: Passengers over 16 have a duty to wear a seatbelt. Failure to do so will result in an assessment of contributory negligence 10

12 Voluntary Assumption of Risk Volenti non fit injuria Complete defence to negligence unlike contributory negligence This happens when plaintiff agrees to bear injurious consequences of the defendant s negligent conduct Requirements: o a genuine inference that the plaintiff consented to the risk of unjury AND consented to the lack of reasonable care which may produce that risk o agreement to waive any claim for negligence o they must have put their mind to it and actually thought about it Rare usually only in sports Joe v. Paradis, 2008 BCCA 57 **use of volenti non fit injuria in impaired driving Facts: Both were intoxicated, and plaintiff convinced defendant to drive to the pub. Defendant drove off road; injured plaintiff. History: Trial jury dismissed case based on volenti. Was appealed. Decision: Judge should not have put the volenti defence to the jury. The jury was not given adequate information to be able to distinguish between assuming physical risks only and assuming physical and legal risks. New trial ordered. Hambley v. Shepley, Ont CA (1967) Issue: Does volenti apply against someone (like a police officer) whose injuries occur in the discharge of a public duty? Decision: No. Police do not consent to negligence of others simply because they are aware of the risks in their employment. Crocker v. Sundance, SCC (1988) Issue: Can Sundance rely on volenti? Decision: No. Volenti applies in a small scope only where plaintiff has assumed both physical and legal risk. His participation could be an assumption of physical risks, but certainly not an assumption of legal risks. Waiver was unenforceable because he was intoxicated. Illegality Ex turpi causa If I am doing something illegal, I cannot sue someone else for damages that arose out of that illegal activity Purpose: to prevent plaintiff from benefiting from illegal conduct 11

13 Hall v. Hebert, SCC (1993) Facts: Both parties were drunk and defendant was driving plaintiff home. He stalled and plaintiff asked if he could drive. Defendant lets him. Plaintiff crashes car. Plaintiff is suing defendant for contributory negligence. Issues: Can plaintiff sue defendant for allowing him to drive while he was intoxicated? Decision: Plaintiff should only receive value of injury. Ex turpi causa should be used in limited fashion. Should not be used to bar compensation that would put the plaintiff back in the position he was in before the accident. Ratio: Ex turpa causa will not deny damages for personal injury, but P should not be allowed to profit from his or her wrongdoing. Tort, contract and criminal law must be in harmony. Allowing someone to benefit from illegal conduct would reduce harmony. British Columbia v. Zastowny, SCC (2008) Facts: Z was sexually assaulted by official while in prison, and the assault contributed to his subsequent heroin addiction, personality problems and employment problems. Issues: Can you recover damages for lost wages while incarcerated? Decision: No. (May be an exception in cases of wrongful conviction) Exclusion Clauses Waiver clause Crocker v. Sundance, SCC (1988) Decision: Signed waiver in this case does not act as a defence clause was not drawn to his attention, he didn t read it, and didn t know about it. Ratio: A contractual clause can serve as a full defence to a claim in tort it just didn t due to the circumstances in this case. Tort Liability of Public Authorities Negligence Liability of Statutory Public Authorities Cooper v Hobart Articulates Ann s test in public authority case: 1. Establish a prima facie duty of care (foreseeability and proximity) 2. Are there residual policy considerations that justify negating the duty of care? (policy and quasi-judicial elements) 12

14 Proximity Taylor v Canada, Ont CA (2012) **didn t actually get decided in court Facts: TMG implant was put into plaintiff without knowing risks about leakage. Canada is defendant. Issue: Can a private duty be established with public authorities? Unofficial Decision: Probably not. It is possible if the relationship is: more distinct than relationship with general public; there is a statutory duty consistent with private duty Fullowka v Pinkerton s of Canada, SCC (591) Facts: Striker set off bomb that killed 9 miners. Issue: Did government owe a duty of care (duty to protect) to the families of the murdered workers? Decision: There was a duty to protect, but there was no breach. Proximity: o Miners are small and clearly defined group o Inspectors have close contact with miners o Inspector s statutory duties are related directly to conduct of miners o Inspectors were physically present and had seen the violence No breach they reasonably relied on legal advice that they did not need to close mine. Negligence Immunity Policy Operational Distinction R v Imperial Tobacco, SCC (2011) Issue: Can BC be held liable to consumers and Imperial for misrepresentation and negligent for advertising that low-tar cigarettes are less harmful? Decision: Encouraging smokers to switch to low-tar is a true policy decision not liable. Consumers: o Insufficient proximity interactions too indirect o Would open floodgates Imperial: o Sufficient proximity direct interactions (designing and promoting); Canada was in advisor role; commercial relationship together Policy and Operational Distinction (Part 2 Ann s Test): Only true/core policy decisions are protected o True/core policy: discretionary legislative/administrative decisions and conduct that are grounded in social, economic, political considerations, and are generally made by legislators/officers whose official responsibility requires them to assess or balance public responsibilities o Not about discretion 13

15 Misfeasance in Public Office Intentional tort (so not negligence; no duty; no breach) Purpose: to protect citizens reasonable expectation that a public officer will not intentionally injure a member of the public through deliberate and unlawful conduct while exercising public functions (Odhavji Estate v Woodhouse). Intent must be proven Elements of Misfeasance in Public Office: 1. Conduct was deliberately unlawful Any act/omission outside scope of statutory authority is unlawful If within scope of statutory authority, it must be carried out with improper purpose Does not include: inadvertently/negligently failing to adequately discharge obligations Includes: failure to exercise power where obligation to if the failure was deliberate 2. The defendant knew the conduct was unlawful and likely to cause harm Traditional requirement of actual malicious intent has been relaxed now it is the absence of an honest attempt to perform the functions of the office Roncarelli v Duplessis, SCC (1959) Facts: Premier revoked liquor license b/c owner was a Jehovah who bailed out people arrested for religious activities. Issue: Can the decision to cancel license be review, even though it is within discretion of the Liquor Commission? Decision: Discretion implies good faith (carrying out statute according to intent and purpose). Decision shows malice he was acting for a reason and purpose unknown to administration. Northern Territory of Australia v Mengel (1995) Two Limbs of Intent: 1. A targeted and malicious intent to injure 2. A reckless indifference regarding the lawfulness of the conduct and the likelihood that it would produce injury. Three Rivers District Council v The Bank of England (2004) Reiterates Mengel 1) intent to do something harmful outside of power OR 2) reckless indifference Odhavji Estate v Woodhouse, SCC (2003) Facts: O was killed by police. Misfeasance Claim: Police did not cooperate with Special Investigations Unity. Chief did not compel police to cooperate. note: no malice 14

16 Damage: Mental suffering of family. Two Categories: 1. Category A Misfeasance: a. Conduct by a public officer that was specifically intended to injure a person or class of persons 2. Category B Misfeasance: a. Where a public offer acts even though he knows he does not have the power to perform that act AND that the act is likely to injure. Decision: Decided officer had actual knowledge (Category A). Sent it back to trial for the plaintiffs to prove their depression/anxiety. LM v BC (Director of Child, Family and Community Services) 2015 **being appealed currently Facts: Plaintiff said husband was sexually assaulting kids. Social worker did not believe her and removed kids from her care and placed kids with dad. Experienced more abuse. Established liability under Category B: No intent to injure kids (so no Category A) However, he has statutory obligation to put safety of children first His dislike for the mother caused him to approach file not in their best interest Mental element: Does not have to be actual knowledge can be actual knowledge, subjective recklessness, or wilful blindness (Decided he had subjective recklessness) Trespass and Intentional Torts History Historically, had to bring an action through a writ Historically, trespass had to be a direct interference wrongfulness was irrelevant, but it had to be direct Action on the case allowed people to recover for indirect interferences but they had to prove damage and wrongfulness Goshen v Larin, N.S.C.A. (1974) (Canada) Facts: Defendant was shielding himself, and accidently pushed the plaintiff, who hurt his wrist. Plaintiff makes laconic plea (says it was direct, but does not discuss intent). Decision: Bound by Cook v Lewis so the onus is on the defendant to absolve himself. Defendant was able to show no intent and no negligence not liable. 15

17 Dahlberg v Naydiuk (Man CA): Facts: Farmer shot by hunter. Decision: Hunter firing over land without permission from owner is trespass to land, and if personal injury occurs, it is trespass to person. Non-Marine Underwriters, Lloyd s of London v Scalera Ratios: Sexual battery can be a form of trespass compensation for the violation of the right to personal autonomy Trespass to person is confined to direct interferences Assault Trespass tort Required elements: o Intentional creation of reasonable apprehension of imminent harmful conduct I. De. S. & Wife v W. DE. S. (1348) Facts: He advanced at wife with hatchet. Decision: he intentionally created reasonable apprehension of imminent harm (right to sense of security). Stephens v Myers, (1830) Facts: Walks towards him with fists raised. Decision: Imminent b/c he walked towards him. Tuberville v. Savage, K.B. (1699) Facts: Put hand on sword and said if it were not assize time, I would run my sword through you. Decision: Imminence factor missing it was assize time and he specifically said he wasn t going to kill him at assize time. Bruce v Dyer, Ont. C.A. (1970) Facts: Shook fist and blocked passage with car. Decision: Assault. To fulfil reasonable apprehension requirement: no need for actual intention to use violence, it is enough if the plaintiff has reasonable grounds to believe he is in danger. Mainland Sawmills v USW, Local , BCSC (2007) Facts: Labour dispute. Local A went back to work at Local B was made. Local B came to mill, carrying sticks and intimidating workers from doing their jobs and preventing next shift-workers from entering. 16

18 Decision: Positive action (shouting, weapons, menacing manner) to raise reasonable fear. Ratio: Words alone don t make someone liable for assault but words with other acts/circumstances can be reasonable apprehension of imminent harm. In other words, you need a threat of violence which shows intention to assault and they have present ability to carry it out. Warman v Grosvenor, OSCJ (2008) Facts: Gave out his address on the internet and invited people to harm him. Decision: This is indirect but the defendant is still creating the risk of harm through his campaign would be partly liable. Battery Foreseeability in battery: o Can an intentional wrongdoer be held responsible for consequences he did not intend? (Does it matter if it is foreseeable?) No. o There is no limit on foreseeability if the physical contact was intended, the magnitude of injury makes no difference. Cole v Turner, (1705) Touching in anger is battery If two people meet in a passage and accidently touch without violence: no battery. Collins v Wilcock (1984 Eng) Facts: Officer lightly grabs someone s arm and leads her somewhere. Decision: This is battery no implied consent. Ratio: There is implied consent to physical contact that is generally acceptable in ordinary conduct (ex/ brushing shoulders on bus). Bettel v. Yim, Ont Co Ct (1978) Facts: Plaintiff was throwing lit matches into defendant s store and a bag of charcoal caught fire. Defendant grabbed him and shook him (to illicit confession) and it led to an accidental headbutting. Decision: Grabbing and shaking in itself is battery (direct, harmful/offensive contact). Foreseeability in Battery Can an intentional wrongdoer be held responsible for consequences he did not intend? (In other words, is there a negligence-like foreseeability involved?) o No There is also no foreseeability limit if the physical conduct was intended, the magnitude of injury makes no difference 17

19 Sexual Wrongdoing Norberg v. Wynrib, [1992] 2 S.C.R. 226 Female patient entered into sexual relationship with doctor in exchange for drugs Patient successfully sued for battery Doctor tried to use defence of consent court said consent was not valid M.(K.) v. M.(H.), [1992] 3 S.C.R. 6. K.M Incest sexual interference was found to be: o Battery (trespass to the person) o Breach of fiduciary duty There were limitation period problems case was brought 15 years after the event o Court applied the reasonable discoverability approach (idea that the nature of the event made it reasonable that the plaintiff would not have discovered the connection between the event and the damage within the time limitation) BC Limitation Act -discoverability principle: clock starts when person could have reasonably discovered connection between event and damage 8 Except for those special situations referred to in sections 9 to 11, a claim is discovered by a person on the first day on which the person knew or reasonably ought to have known all of the following: (a) that injury, loss or damage had occurred; (b) that the injury, loss or damage was caused by or contributed to by an act or omission; (c) that the act or omission was that of the person against whom the claim is or may be made; (d) that, having regard to the nature of the injury, loss or damage, a court proceeding would be an appropriate means to seek to remedy the injury, loss or damage. Exemptions from Limitation Act the Act does not apply to the following: 3(1) (i) a claim relating to misconduct of a sexual nature (including, but not limited to, sexual assault) (i) if the misconduct occurred while claimant was a minor AND (ii) whether or not the claimant s right was governed by limitation period 3(1) (j) a claim relating to sexual assault, whether or not it was governed by limitation period 3(1) (k) a claim relating to assault or battery (whether or not claimant s right was governed by limitation period) IF (i) was a minor OR (ii) was living in an intimate/personal relationship with, or was in a relationship of financial/physical/other dependency with a person who performed, contributed to, consented to, or acquiesced in the assault/battery 18

20 Other Tort Actions Negligence re institutional tort feasors (direct negligence) for failure to adequately supervise, control (and have adequate policies for that purpose) perpetrators sexual harassment recognised as a (distinct) tort- Lajoie v Kelly; Campbell-Fowler v Royal Trust Co but in most jurisdictions it must be litigated as under human rights legislation or subsumed within a tort such as battery, intentional infliction of mental suffering Intentional infliction of mental suffering Intentional Infliction of Mental Suffering Elements of the Intentional Infliction 1. that defendant s specific acts were extreme, flagrant or outrageous 2. the specific acts were calculated to produce harm ( some effect of the kind that was produced ) to an ordinary person (unless special knowledge) 3. the specific acts caused harm harm : recognizable physical or psychopathological harm; visible and provable illness (not mere upset) Wilkinson v Downton, Q.B. (1897) Facts: Defendant made joke that plaintiff s husband was severely wounded this was false. Plaintiff experienced violent shock to nervous system. Decision: This was intentional infliction of mental suffering because he wilfully did an act that was calculated to cause physical harm to the plaintiff (by interfering with her right to personal safety). Rule: The defendant has wilfully done an act calculated to cause physical harm to plaintiff Infringing her legal right to personal safety and has in fact thereby caused physical harm to her (physical harm: mental suffering) False Imprisonment Requirements of False Imprisonment Plaintiff must show that these 3 elements are present, then the onus shifts to the defendant to justify the detention Requirements: 1. He was totally deprived of liberty (or reasonably believed such) 2. The deprivation was against his will (no consent) 3. The defendant intentionally caused the plaintiff s bodily restraint a. Does not need to be material or physical ; can be psychological 19

21 Negligent False Imprisonment Negligent false imprisonment is possible but will require actual injury in order for party to recover o Example/ accidently locking someone in a walk-in freezer Bird v Jones (1845) 7 QB 742 **idea of total deprivation of liberty Facts: There was a public gathering that prevented P from proceeding in a desired direction on a bridge. No force was used, and he was free to travel in a different direction. Decision: no false imprisonment deprivation of liberty must be total o total: there are no reasonable means of escape left open to the plaintiff if the way of escape is unreasonable (have to swim to shore; jump out window) this is total deprivation o restraint must be total, even if it s only momentary o in this case, he could have gone the other way Ratio: it is not false imprisonment to block someone s way if another route can be taken Psychological, Moral Restraint Restraint can be physical, but it can also be by implicit or explicit threat of force or by an assertion of legal authority o Imprisonment: there has been an assertion of and submission to control Bahner v Marwest Hotel Co (1969) BCCA: a plaintiff who reasonably perceives that force may be used is considered to be imprisoned if they stay and don t risk violence Moral pressure may be considered restraint (and therefore imprisonment) if the plaintiff submits to the defendant s acts for fear of public embarrassment Chaytor v London, New York and Paris Ass n, of Fashion Ltd and Price, Newf. S.C. (1961) Facts: Comparison shoppers (competition store owners) were doing price comparisons in a store. The store employee said they were suspicious and called police. The shoppers left with the police, were detained, then released when the officer realized the store employees were wrong. The shoppers sued the store for false imprisonment because they caused the imprisonment. Decision: The store was liable for unlawful imprisonment store manager exercised a psychological type of imprisonment. Ratio: Even if you go voluntarily, the court said it was still imprisonment. It was unreasonable to expect them to refuse to go with the police and cause a scene (public embarrassment). False Arrest false imprisonment follows a false arrest o if the arrest was not lawful, the detainment would be unlawful can be used concurrently in Canada 20

22 Malicious Prosecution requires: false imprisonment was directly caused by the defendant Trespass to Land trespass to land: an interference (without the owner s permission) with the owner s right of exclusive possession or immediate right to possession (Entick v Carrington) o this means that trespass to land requires that the other person has either possession or an immediate right of possession o Doctrine of trespass by relation this allows a plaintiff who only has an immediate right to possession (not actual possession) to sue in trespass for the intrusion after he actually acquires possession (Cooper v Crabtree) trespass to land occurs when someone enters onto land (including air and subsurface space) of another without lawful justification o defendant has to show justification permission/consent it is actionable per se no proof of actual damage is necessary Trespass to Land in Canada reverse onus plaintiff only has to prove that the interference was direct then defendant has to try to prove it was not trespass by showing it was not intentional/negligent negligent trespass is possible in Canada Trespass Act Trespass prohibited 4 (1) Subject to section 4.1, a person commits an offence if the person does any of the following: (a) enters premises that are enclosed land; enclosed land (b) enters premises after the person has had notice from an occupier of the premises or an authorized person that the entry is prohibited; land with sign prohibiting entry (c) engages in activity on or in premises after the person has had notice from an occupier of the premises or an authorized person that the activity is prohibited. (2) A person found on or in premises that are enclosed land is presumed not to have the consent of an occupier or an authorized person to be there. (3) Subject to section 4.1, a person who has been directed, either orally or in writing, by an occupier of premises or an authorized person to (a) leave the premises, or (b) stop engaging in an activity on or in the premises, commits an offence if the person (c) does not leave the premises or stop the activity, as applicable, as soon as practicable after receiving the direction, or (d) re-enters the premises or resumes the activity on or in the premises. Is committing an offence 21

23 Entick v Carrington 1765 Ratio: Every invasion of property is trespass, even if there is no damage. Ratio: The burden is on the defendant to show that entering the land was justified. Cooper v Crabtree Ratio: right to possession must be immediate for trespass to land to occur. Case: Landlord seeks to bring action for trespass, but cannot do it because he does not have the immediate right to possess the property the tenant has that right Harrison v Carswell SCC Issue: Was the picketing at the shopping mall trespassing under Manitoba s Petty Trespass Act? Legislation says: It is trespass if you do not leave the premises after being directed to do so by the occupier. Issue: Trespass issue: did the shopping centre owner have sufficient control or possession of the common areas, having regard to the unrestricted invitation to the public to enter upon the premises, as to enable it to invoke the remedy of trespass? (sufficient control to = exclusive right of possession) Decision: Yes: possession does not cease to be exclusive so long as there is the right to control entry of the general public, and here the owner had not relinquished that right of control Wildwood Mall LTD v Stevens (SASK) Facts: Union members picketing in a shopping mall. The plaintiff proprietor of the mall sought an injunction to restrain this activity There was no legislation prohibiting people from not leaving after being asked to so it is distinguished from Harrison* Decision: Legislation did not say that their actions were against the law. The mall owner extended an unrestricted invitation to the public he may exercise control over premises, but does not exercise that control to the exclusion of others. Tree Trespass When branches or roots protrude into someone else s air/subsurface Property has right to prune them back to property line without giving notice to neighbour who owns trees If the pruning crosses the property line (no matter how slightly), it is a trespass (Anderson v Skender) Unclear about what happens if tree dies but there is common law idea that we should take reasonable care not to cause injury to someone else s property 22

24 Turner v Thorne **trespass can be caused through continuous presence on the land Facts: Driver of Speedit Delivery Service went to plaintiff s house. No-one was home; the driver went to plaintiff s garage, opened it, and placed the boxes inside. When plaintiff came home, he tripped over the boxes in his garage, sustaining serious injuries assessed at over $9,000. Decision: Judgement for plaintiff. Trespassers are liable for both direct and indirect personal injuries resulting from their trespass. A trespass may be committed by the continued presence of something that someone tortuously placed on the land. Defences to Trespass Possible Defences to Liability: Trespasser o Necessity o Legal authority Property owner: o Can sometimes act in self-defence or defence of their property o If they consent to an invasion of their interests, then they cannot claim protection Consent People are the masters of their own bodies and property o They can forgo their rights to exclusive possession/control If an individual consents to the intentional invasion of their interests, they cannot recover for damages in tort that result Consent is based on autonomy and freewill o Consent must be real freely given by an autonomous person There is a presumption that people are autonomous and are able to consent Consent is a defence to trespass onus on the defendant to establish that valid consent was given Consent can be: o Explicitly (written or verbal) o Implicitly (through participation in certain event, demeanour or other behaviour) Written consent is not consent itself may be evidence they probably consented, but the actual consent occurs metaphysically o Written consent can be undermined with other evidence of factors such as fraud, duress, incapacity Consent may be implied by law in certain circumstances even where the plaintiff has done nothing to indicate his consent 23

25 o Everyday conduct that is expected in day to day life o ordinary uses of society o Examples/ sheltering yourself under someone s tree during a rainstorm (unless there is a sign, etc) touching someone on shoulder to get their attention o to determine if this applies: is this the kind of activity which would ordinarily be understood by society in general as one to which we all generally consent? Consent may also be implied from an individual s acts or from past behaviour o O Brien v Cunard (1891 SC) She was immigrant coming from Ireland to Boston People on ship were supposed to be vaccinated When they arrived in US, they checked their arms to see if they had a mark indicating that had been vaccinated She said she had been, but they said she had no mark She lifted arm and was vaccinated She claims battery b/c she was vaccinated without consent, but defendant said she consented when she acquiesced Decision: based on surrounding circumstances, it was not a battery Non-Marine Underwriters v Scalera (2000 SCC) ***sexual activity does not fall into the category of activities where consent is implied Facts: Scalera engaged in sex with bus drivers. She is claiming sexual battery. Bus driver says there was implied consent. Ratio: Sexual activity is not an area of implied consent consent is not implied unless the conduct is generally to be expected in hurly burly of daily life. Norberg v Wynrib (1992 SCC) Power imbalance + exploitation of relationship = vitiates consent in sexual battery Facts: Plaintiff was addicted to painkillers. Doctor began giving her painkillers in exchange for sexual favours. She consented. Decision: This is sexual battery. She consent, but it was impaired by her need for drugs and the power imbalance between doctor and patient. Consent needs to be free, genuine and autonomous so even though her behaviour showed consent, it is not valid b/c there was a power imbalance and exploitation of the vulnerable party. Consent in the Sporting Context example of implied consent person is taken to have consented to the ordinary risks of the sport they are engaged in 24

26 o consenting to playing hockey includes consent to the normal risk inherent in hockey Agar v Canning: some limits must be placed on a player s immunity from liability o in extreme cases (such as Bertuzzi) player can be liable each case must be decided on facts but generally, injuries inflicted in circumstances which show a definite resolve to cause serious injury to another, even where there is provocation and in the heat of the game, should not fall within the scope of the implied consent. consent is to the risks of the sport when it is conducted fairly and in good temper o this is different than playing the sport within the rules o even if the rules are violated, if the violation is common and it was done in fair play, consent will not be exceeded Charland v Cloverdale Minor Baseball Association (2013 BCSC) Facts: Mutual and consensual physical altercation at baseball game. Father #1 is alleging battery. Father #2 is arguing consent as a defence (onus on him to prove) Decision: In mutual fights, if they are an equal match and excessive force is not used, there will be no trespass to person. No damages recoverable unless force was excessive. Consent in Medical Context A doctor must not treat or event touch a patient without the patient s consent A person may refuse to accept medical treatment, however objectively foolish this might be, even if it results in death A doctor cannot therefore provide medical treatment against a person s will, however beneficial it might be If a person is capable of giving consent, it is only his or her consent that it required The consent of the next of kin is relevant only if that person is NOT capable of giving consent (HCCA) A person may consent explicitly, either verbally or in writing, or implicitly, through behaviour A patient coming to a doctor s office for treatment, for example, implies some measure of consent to being examined, although a patient may expressly limit the scope of his consent to what happens Emergency Consent Only applies if patient cannot consent and no one can be found to consent for them Consent in this situation: Doctor has implied consent or is privileged by necessity o Would a reasonable person have consented if they could? Malette v Schulman (1990 Ont CA) **emergency consent 25

27 Facts: Plaintiff was Jehovah s Witness and was injured in car accident. Doctor say the card in purse forbidding blood transfusions, but gave a transfusion anyways. Decision: No consent was given. Emergency consent does not apply because the doctor had advance instructions (made prior to and in anticipation of the emergency). He is not entitled to disregard advance instructions. Marshall v Curry 1933 NS SC Facts: Testicle was removed during a hernia operation. He consented to hernia operation, but not testicle removal. Doctor said testicle removal was necessary to the successful hernia operation b/c it would have been a menace to the health and life of patient. Issue: Battery? (Consent)? Decision: Judgement in favour of doctor no battery. Ratio: In a medical emergency where it is impossible to obtain consent, doctor may intervene to save that person s life. Self-Defence and Defence of Property Cockcroft v Smith (Eng 1705) Facts: C went to poke S s eye. So S bit his finger off. Decision: Not self-defence not proportional. Ratio: Self-defence is no offence where the person does not respond immediately, or if the defence is more violent than the initial assault. MacDonald v Hees (1974), 46 DLR Ratio: Use of force to defend property is only justified if it is 1) reasonable and 2) the intruder was given the opportunity to leave. Killing in Self-Defence Permissible when necessary (to preserve one s life or avoid serious injury) but no right to stand your ground It is not necessary to kill in self-defence where the assailant can defend himself by withdrawing to safety Killing must be proportional to the threat Defence of 3 rd Persons People are entitled to defend other people who are being attacked or threatened Self-defence principles apply Defence of Property Green v Goddard; Bird v Hollbrook 26

28 the owner must first request the trespasser to depart before he can physically remove him MacDonald v Hees must be asked to leave before being removed by force; force must amount to nothing more than forcible removal it cannot include beating, wounding or physical injury Necessity Dwyer v Staunton (1947 Alberta) Facts: Public highway was impassable, so the defendant drove through private property. Decision: He was within his rights, as long as unnecessary damage was not caused. Ratio: Interfering with private property can be justified if it is necessary Vincent v Lake Eerie Transportation Co (1910) Facts: There was a storm, so after unloading the boat, the owner left it tied to the wharf. Wharf was damaged as a result. Analysis: Would have been highly imprudent to leave in the ship, or to set the boat adrift. But they did deliberately hold the boat against the dock preserving their boat at the expense of the dock. Therefore, must compensate for damage to wharf. Southwark London Borough v Williams (1971 UK) Facts: Squatters tried to rely on argument of necessity for trespass because there were in dire need of a place to live. Decision: not necessity. Strict Liability Vicarious Liability a form of strict liability requires no proof of personal wrongdoing (liability without fault) a theory that holds a not-at-fault person responsible for the misconducts of another simply because of the relationship between them o commonly used in employment cannot be justified on mere deep pockets (suing not-at-fault person simply because you will get more) it must be fair 27

29 Vicarious Liability in Employment Requirements: 1. Tort must be committed 2. Tort feasors must be the employee of the defendant (or be in an employment-like relationship) 3. Tort must be committed in the course and scope of employment Hern v Nichols (1709 UK) Ratio: Someone has to be the loser ; makes more sense for the employer to be the loser than the stranger (because the employer puts trust and confidence in the employee) Ontario Ltd. v Sagaz Industries Canada Inc. (SCC 2001) Facts: consultant hired by Sagaz offered a bribe to Can Tire to replace as supplier of car seat covers. Issue: Is Sagaz vicariously liable for the bribery scheme perpetrated by their consultant? Decision: Not an employee was a true independent contractor. So no vicarious liability. Employee or Independent Contractor: Vicarious liability more likely imposed in case of employee Differentiation: element of control that the employer has over tortfeasor o If the employer has no control over the person, they cannot reduce risk (so deterrence and fairness policy reasons for vicarious liability are missing) Test for Control: Non-exhaustive list of relevant factors: Whether the worker provides his own equipment Whether the worker hires his own helpers The worker s personal level of financial risk The workers responsibility for management and investment The worker s opportunity for profit Salmond Test Bazley v Curry An employee s wrongful conduct is said to fall within the course of his or her employment where it consists of either: 1. acts authorized by the employer or 2. unauthorized acts that are so connected with acts that the employer has authorized that they may rightly be regarded as modes- although improper modes- of doing what has been authorized Bazley v Curry SCC