Torts 08

CB: 101 Norberg v. Wynrib , SCC (1992) CB: 114 Malette v. Shulman , Ont CA (1990) CB: 119 Marshall v. Curry , NSSC (1993) 2. Self-defence CB: 127 Cockcroft v. Smith , QB (1705) 3. Defence of Property CB: 131 Green v. Goddard , QB (1704) CB: 132 Bird v. Holbrook , Common Pleas (1828) 4. Necessity CB: 134 Dwyer v. Staunton , AB Dist Ct (1974) CB: 136 Vincent v. Lake Erie Transportation Ltd. , Minnesota SC (1910) CB: 140 Southwark London Borough Council v. Williams , CA (1971 VIII. BUSINESS TORTS A. Deceit CB: 621 Derry v. Peek , HL (1889) CB: 623 Young v. McMillan , NSSC (1894) B. Inducing Breach of Contract CB: 627 Lumley v. Gye , QB (1853) CB: 630 DC Thomson v. Deakin , CA (1952) CB: 631 Torquay Hotel v. Cousins , CA (1969) CB: 634 Brimelow v. Casson , Ch. D (1924) C. Intimidation CB: 639 Rookes v. Barnard , HL (1964) D. Conspiracy CB: 644 Canada Cement v. B.C. Lightweight Aggregate , SCC (1983) E. Interference with Advantageous Business Relations CB: 648 Tuttle v. Buck , Minnesota SC (1909) III. OCCUPIERS’ LIABILITY Historical Overview CB: 607-14 -occupiers liability is concerned with tort liability of those who control land to those who enter onto it -subject is one of conflict between the general principles of the law of negligence and the traditional immunity of land-owners -incremental changes to the case law can be seen in older cases -balance shifted from property rights toward personal rights

(3) When in an action brought under this Act 2 or more occupiers of the same premises are each found to be at fault, the Tort-feasors Act applies. -Go to the act first to determine the category that a person falls into and the go to the common law to determine the duty that is owed. -Crown is bound except for roadways because the HTA sets out the care that he Crown has to take. Waldick (Resp/Resp/Pl) v. Malcolm (Appl/Appl/Def) (CB 614) (fell in icy area of Def’s farmhouse) v. (claimed no negligence b/c of custom of not salting/sanding) [1991 SCC] There are cases when the custom itself may be unreasonable Can’t always hide behind custom to avoid negligence Facts: Pl fell on the icy parking area of the Def’s rented farmhouse. The parking area had not been salted or sanded. Apparently few people in that region did so. It was argued that there was a custom in the area not to put salt or sand on icy parking areas. Issue: Did the Def meet the standard of reasonable care imposed by the Occupiers' Liability Act ? NO Did the local custom of not sanding or salting driveways oust the duty of care? NO Reasoning: (Iacobucci J) 1) Problems with proof- there was only the unsupported testimony of the Def that a custom existed. 2) Problems with reliance on defense of custom – negligent conduct cannot be supported, even when a large group is continually guilty of it - If, as the lower courts found, it is unreasonable to do absolutely nothing to one's driveway in the face of clearly treacherous conditions, it matters little that one's neighbors also act unreasonably. Presumably it is this type of generalized negligence that the Act is meant to discourage. Drewry v Towns (1995)…custom is worthy of judicial protection as long as it is not shown to be negligent, but a mere habit does not deserve similar treatment. Ratio: Courts will not rely on the existence of customary practices that are unreasonable in themselves to oust the duty of care owed. When courts do rely on custom, there must be evidence of the general practice. Class: custom is what normal people do. Normal people are usually reasonable. -custom can be unreasonable. -Court looks at s 2 and 3 of the OLA “the owner or occupier must provide reasonable safety for entrants, except for risks willingly assumed” -an occupier must take reasonable care to ensure that the area is safe -s4 Risks willingly assumed by Waldick or no? -case tells us the relationship between volenti (knowledge and risk and the waiver of legal rights). Must show that the plaintiff knew of the risk and waived their right to sue -court determined that s 4 means that volenti is incorporated into the statute. It means everything that volenti means. - IV. GOVERNMENT LIABILITY Proceedings Against the Crown Act, RSA 2000, c. P-25. SM: 62 -s 5(1) Crown is subject to all the liabilities of tort to which any other person is (vicariously) liable for in respect to a tort committed by any of its officers or agents. -crown is subject for breaches of duty that a person owes as an employer -no proceedings lie against the crown for anything of a judicial nature (Judges and Crown Prosecutor)

- They adopted a policy not to warn her because of a stereotypical discriminatory belief that as a woman she and others like her would become hysterical and scare off an attacker - It was implicit in the detective’s comments that a man in similar circumstances would have been warned - It is not necessary that their policy decision be based solely on discriminatory grounds - There is no s.1 justification Ratio: Constitution is another way to attack government policy decisions. If a policy decision is even partially based on discriminatory grounds it may be questioned on Charter grounds. Class: -the duty was owed individually by the police to the plaintiff. Relationship between police and Doe was created by the foreseeability of the rape. The police knew that it would happen in a particular area, to a white woman with a balcony. -standard of care to warn and to protect were both breached. -another charter breach was s. 7 right to life liberty and security of the person. Only exception is through due process of law. -police defence was basically “mind your business” we know how to police. -similar result would have occurred on basis of race, age religion, etc. Officials are not allowed to make decisions based on these factors. -remedy for this tort was a large damage award, but the court said that the remedy was the same as what it would be for the charter breach. (s 24 allows for awarding of damages) Notes: Damage awards for constitutional torts are becoming more common – imprisonment, confinement, unlawful search -SCC has said that awards may be given for Charter breaches, but there is not yet any jurisprudence that outlines principles of how to proceed. -Note 8 is tort law appropriately used as a political tool? -There were political overtones of the case, and the point was that police have to stop being discriminatory of women, and particularly rape victims. -this case was huge in its effect to change the way police operate in Canada V. NEGLIGENCE: PURE ECONOMIC LOSS -rules are different because it is PURE ECONOMIC LOSS -so far we have dealt with CONSEQUENTIAL ECONOMIC LOSS that attach to a tort such as a person can no longer work due to a tort -in these cases there is no physical damage occurring, but there is a claim for money due to some kind of loss -the duty of care is more circumscribed, and courts are reluctant to find a duty -where there is no physical harm to attach damages to then damages are more indeterminate -in the normal course of events, wealth transfers between people are normally dealt with by contract. The court will ask why are we dealing with this in tort when contract will take care of it? -even thought the courts are reluctant, 5 categories have developed where pure economic loss will be entertained: 1. Negligent misrepresentation -Hedley and Byrne is the breakthrough case 2. Negligent performance of a service 3. Defective products or structures 4. Relational losses – where someone loses money because a partner has been injured or suffered loss 5. Public authority liability A. Negligent Misrepresentation Why are words treated differently than acts? Because a person can avoid responsibility for their words by saying that they are not responsible. What is a special relationship in these cases of misrepresentation?

o In a sphere in which a person is so placed that others could reasonably rely on his judgment or his skill or on his ability to make careful inquiry, a person takes it on himself to give information or advice to , or allows his information or advice to be passed on to, another person who, as he knows or should know, will place reliance on it, then a duty of care will arise o Lord Morris explicitly deals w/ skill (Lord Reid alludes to it)  is this confined to ppl w/ special skill or knowledge? o Basically if a person has a special skill and uses that special skill irrespective of contract in aid of another who relies on it, then a duty arises.  Special skill-context that the advice is given in is important  Reliance  Knowledge or implied knowledge of reliance  = duty of care - Lord Hodson: o No special duty here o Looks at actual terms given – responsibility was never assumed so no duty o People can contract out of their duty o More confined to this particular case (v. the other judges who provide frameworks) - Lord Devlin: o Wherever there is a relationship equivalent to contract there is a duty of care – may be either a general or particular relationship  Particular could be solicitor - client, banker- client,  Just have to prove this relationship existed and then the duty of care will follow o Not confining this duty merely to people already in contractual relationships, but also to the ‘equivalent’  Is this pre-contractual only? Or does it extend to someone making inquiries? Or could it be no contract in mind at all? o Opening door a little wider for the duty Queen (Appl/Resp/Pl) v. Cognos Inc. (Resp/Appl/Def) (CB 443) (C.A. who applied for job w/ Def) v. (company that interviewed Pl) [1993 SCC] Leading Case in Canada Negligent misstatement can occur in absence of contract (this was pre-contractual misrepresentation) Facts: Pl sued the Def for damages as a result of negligent misrepresentations made during an interview. Pl applied for a position with the Def. He was told during the interview that the product would take at least two years to develop and had a bright and long future. Def neglected to say that funding was not yet guaranteed. Pl accepted the position, quit his job in Calgary and moved to Ottawa. The funding for the project was not approved and the Pl’s employment was terminated after one year. The Def argued that the employment contract, which provided that the Pl could be terminated without cause and that he could be reassigned, acted as a disclaimer of responsibility for the representations made during the interview. Issue: Did a duty of care exist during the interview? YES – appeal allowed Reasoning: - 2 nd , 4 th and 5 th requirements (below) are not in question. (#1 is the big issue) (1) Duty of care - Def conceded that it owed a duty of care to Pl not to make negligent misrepresentations - There existed a special relationship between the two - The Hedley Byrne duty of care is not restricted to professionals such as doctors and lawyers. While this factor may provide a good indication as to whether a special relationship exists, it should not be treated as a threshold requirement. (2) Breach of Duty of Care

business of giving info to others – what’s important is if they represent themselves as having an expertise) 2. Seriousness of the Occasion – more R&F when information is given in a business, professional, formal or serious occasion 3. An Initial Request for Information – more R&F to rely on information that was, at least initially, given at the request of some person 4. Pecuniary Interest – more reasonable and foreseeability if information or advice is purchased 5. Nature of the Statement – Reliance upon facts may be more reasonable and foreseeable than reliance on more subjective and speculative statements but there is no hard and fast rule about it ( Queen v. Cognos ) 6. Disclaimers – As a general rule, a disclaimer of responsibility for the accuracy or reliability of the representation will prevent the establishment of a duty of care ( Hedley Byrne ) 2 nd Branch – Does the prima facie duty create sufficient concerns of indeterminate liability that it must be negated on the grounds of public policy? - To not be negated: (1) Def must know identity of Pl or class of Pl, and (2) Reliance losses claimed by Pl must result from using the statement in the manner and for the purpose that it was intended to be used-which in this case it was clearly not Class Notes: -the court focused on the fact that the statements were prepared to help the shareholders manage the company, not make personal financial decisions. The purpose of the statements is key in this case. -the plaintiffs fell within the large class of investors who put money into the company. Allowing a huge class of investors to sue for this wrong would create an unfavourable policy. BG Checo International (Pl) v. B.C. Hydro (Def) (CB 455) (successful bidder) v. (called for tenders to erect transmission towers and string lines) [1993 SCC] Facts: Def called for tenders to erect transmission towers and string transmission lines. Pl was the successful bidder and entered into a contract with Def. The tender documents, upon which the Pl relied, and the contract documents both stated that clearing of the right-of-way would be done by others and not form part of the contract. The clearing was inadequate and caused Pl additional expenses. Pl sues, and Def says agreed in terms of contract that any liability would be sorted out in contract, not tort. Issue: Can a pre-contractual representation that becomes a contractual term found liability in negligent misrepresentation? Can a party sue in tort for a wrong where there is an express term in the contract dealing with the matter? YES Reasoning: (La Forest & McLachlin JJ.) - The right to sue in tort is not taken away by a contract that contains an express term dealing with the matter in question - However, a contract, by limiting the scope of the tort duty or waiving the right to sue in tort, may limit or negate tort liability - Where a given wrong prima facie supports an action in contract and in tort, the party may sue in either or both, except where the contract indicates that the parties intended to limit or negative the right to sue in tort - The tort duty not to misrepresent is not excluded by the contract that confirms the Def’s obligation to clear the right-of-way - Therefore, Pl may sue in tort Ratio:

Facts: Def contractor built an apartment block that was later sold by the 1 st owner to the Pl. 10 yrs after construction, cladding started falling off and was a clear danger to people. The 2 nd owner spent 1.5M$ to get the plastering repaired. Pl is now suing the contractor in tort for negligence. Therefore, have a non-contractual relationship between Def and Pl. Issue: Can the Pl who suffered pure economic loss, sue in tort to recover for repair costs of a building negligently built? YES, building is a threat to safety Reasoning (La Forest J): - followed Anns test (1) Duty of Care – yes a) Prima facie duty of care – yes - It is reasonable to foresee that the negligence of contractors could affect the safety of future occupants & that this danger also applies to subsequent owners b) Policy reasons to negate? – no – indeterminacy concerns were not severe - Class of plaintiffs restricted to future occupants; amount of money payable restricted to the cost of repairs; duration of potential liability restricted to the useful life of the building. - Policy reasons to support imposition of duty: encouragement to prevent measures to avoid future damage to persons or to property; deterrence of poor construction; availability of affordable 3 rd party liability insurance for builders; purchaser’s difficulties in detecting latent defects Holding: - MB CA erred in deciding Bird could not, in principle, be held liable in tort to the condo corp  these costs are recoverable under economic loss (law of tort) in Canada Ratio: - SCC drew a distinction between product quality defects that create a real and substantial danger to the occupants of the building and non-dangerous defects such as poor quality or shoddy construction  Def owed a duty of care in respect of dangerous defects - “Where a contractor (or any other person) is negligent in planning or constructing a building, and where that building is found to contain defects resulting from that negligence that pose a real and substantial danger to the occupants of the building, the reasonable cost of repairing the defects and putting the building back into a non- dangerous state are recoverable in tort by the occupants.” - Liability to 3rd party when no contract b/w them is OK in cases of negligent construction if such construction is dangerous - Tort and contract are both OK as causes of action and overlapping as long as tort can rest independently from contract - Independent if risk to safety/dangerous  separate and apart from contract Class: -Dangerousness is a useful vehicle in the determinacy issue. It helps address the issue because there is a definable class of people who could be injured. -on this point the other side argued that caveat emptor applied to this case – that the buyer was in the best position to determine what they were buying. -the court did not allow the caveat emptor argument because it is the builder who knows what type of material goes into the building and the quality of workmanship. -the plaintiffs were only looking for damages in the amount of repairs. This limits the indeterminacy problem, and the court took the view that in cases of this kind the award is limited to the cost of repairs. -the court assigns liability for the short term and gives an out by saying that it was only to last for the useful life of the building. It will be harder to prove over time that an issue is due to wear and tear or dangerous workmanship. The burden of proof is on the Pl to prove that the danger was real and substantial and the repairs undertook were necessary to alleviate that danger. Rivtow note 1 page 470 Tugboat with crane had broken due to a fault in the crane. Someone was killed. Rivtow Marine had the same one and so they took it out of service to repair the crane and then sued the manufacturer for failure to warn. They sought

- LaForest disagrees w/ her rational in his judgment - Left w/ unclear position by 2 camps in SCC Bow Valley Husky (Bermuda) Ltd. (Pl) v. St. John Shipbuilding Ltd. (Def) (CB 485) (suffered economic loss) v (failed to warn of danger of fire) [1997 SCC] Claim for contractual relational economic loss Facts: 3 plaintiffs: HOOL 2 defendants: SJSL (builder) BVI Raychem (materials use) BVHB Rig was built by the Def SJSL for BVHB. A component of the heating system known as thermaclad was supplied by the Def Raychem. The rig was leased by the owner, BVHB to HOOL & BVI. During the drilling of an exploratory well, the thermaclad caught fire and, as a result, the rig was out of service for several months for repairs. During this time, Pls were obliged, under their contracts, to pay day rates to BVHB and they suffered additional financial losses in respect of contracts with suppliers. Pls claimed that Defs had a duty to warn them of the flammability of the thermaclad and that their failure to do so caused them contractual relational economic loss. Issue: Do SJHL and Raychem owe a duty of care to warn the pl of the flammability of thermaclad? Holding: 1) Liability in contract: - SJSL to BVHB  failure to warn: liability excluded by contractual term. Contract went to great lengths to avoid liability for certain losses. The risks were clearly allocated so no recovery 2) Liability in tort - SJSL to BVHB  failure to warn: liability excluded by contractual term. Contract went to great lengths to avoid liability for certain losses. The risks were clearly allocated so no recovery - Raychem to BVHB  failure to warn: economic loss and property damage: recovery subject to contributory negligence - SJSL to HOOL & BVI  failure to warn: pure economic loss: claim dismissed as contractual relational economic loss - Raychem to HOOL & BVI  failure to warn: pure economic loss: claim dismissed as contractual relational economic loss - Allocation of fault: 60% BVHB; 40% Rachem: contributory negligence no longer bar to recover at common law (even absent federal contribution legislation) Reasoning: - This case does not fall within any existing exceptional category of cases, and must therefore be examined under the Anns test: (1) Prima facie duty of care – yes - There was foreseeability of the economic loss - Where a duty to warn is alleged, the issue is not reliance, but whether the def ought reasonably to have foreseen that the pl might suffer loss as a result of use of the product about which the warning should have been made. (2) Policy factors to negate the duty – yes - Indeterminacy concerns were insuperable - Furthermore, there was no need for additional deterrence since BVHB sued the defendants, and there had been every opportunity for the plaintiffs to channel their economic losses back to BVHB by contract

Ratio (McLachlin J.): 1) Contractual relational economic loss is recoverable only in special categories of exceptional cases. This amounts to a recognition of a general exclusionary rule subject to exceptions 2) The exceptional categories of cases currently recognised by the SCC include: a) where the plaintiff has some possessory or proprietary interest in the damaged property (making it appear that the plaintiff is the owner in all but name). b) general average cases – in the course of a voyage, a ship may be in peril and the shipowner may incur expenses to save the ship and continue the voyage with minimal disruption. The cargo owners are obliged to contribute to these expenses in what are known as general average contributions. The cargo owners may recover the contribution from a tortfeasor even though they have no possessory or proprietary interest in the ship and their cargo is unharmed. c) cases where the defendant and plaintiff are involved in a joint venture . Where a number of people use property owned by one of them for a joint business enterprise. When the defendant negligently damages or destroys the property, all of the participants may suffer economic loss. These financial losses are recoverable directly from the tortfeasor by the owner and non-owners of the property. d) transferred loss cases . A contract for the sale of goods may allocate the risk of damage to the buyer before the ownership of the goods passes from the seller. If goods are damaged during this period, the owner may have no claim because she has suffered no loss (the risk being allocated to the buyer) and the buyer may have no claim because he has no ownership. This exception may support the buyer’s claim for the contractual economic loss. 3) Although the categories of exceptional cases are not closed, the Court will not assiduously seek to develop new categories. There must be compelling policy reasons in favour of recognising a new category. - New categories may be recognised in situations where: a) the deterrent effect of the potential liability the property owner is low b) the plaintiff has no opportunity to allocate the risk of economic loss to the owner of the property 4) The approach in Anns must be used to determine if a new category of exceptional cases should be recognized CLASS: - this case allows the SCC to correct the havoc created by Norsk and set the law firmly. -the relational losers are HOOL and BVI. They are losing money because they service and operate BVHB. -from Norsk, the court agrees that if it is a joint venture then award should be made. -the court has to make a methodology work. -McLachlin sticks with Anns. -the categories are not closed in relation to relational economic losses. -here is a prima face duty to warn owed to all three pl. -is the second staged negative? Yes, on page 847, there is no good reason to allow HOOL and BVI to succeed. The challenge is to place the Pl in a narrow category. -BVHB wins in the end on the failure to warn, SJHL gets out of liability due to their exclusion clause. -Mclachlin accepted the exclusionary rule, deferring to LaForest -the categories of relational loss cases are not closed - huge part of finding a duty has to do with proximity in the relationship, time, physical propinquity, and the other elements include foreseeability of the loss, and policy must be addressed in the second branch of the Anns test. D’Amato (Appl/Resp/Pl) v. Badger (Resp/Appl/Def) (SM 64) (body shop that employed D’Amato & suffered economic loss) v. (driver that negligently hit D’Amato) [1996 SCC] Facts: Pl was in a car accident and severely injured. He was part owner of a body shop and continued to work after the accident, but could no longer do physical labour, only paperwork. Continued to be paid at his old salary, but body shop had to hire someone else to do the work that he normally did. Body shop is now suing for economic loss and the Pl is suing for loss on earning capacity. Issue: Can the Pl Body Shop claim relational economic loss? NO - the relationship is a contractual one.

Reasoning: Major J. refused to choose between the 2 tests in Norsk and so applied both, which he suggested “will usually achieve the same result”: 1) La Forest J. test of a general exclusionary rule: - no policy grounds to justify a departure from the exclusionary rule - Policy criteria: a) no deterrence/ already liability for the physical loss b) if there is a contract there is a remedy already (damages) c) indeterminacy too many will recover due to relationship with the plaintiff - Left the door open  when these 3 elements are not present, there may be a chance to recover for relational economic losses (right now there is no case that was successful in this area) 2) McLachlin J. broader approach (applying Ann’s test) Step 1  the loss was neither foreseeable nor sufficiently proximate to the act of negligence to warrant recovery. No relationship between tortfeasor and company. Step 2  policy reasons: failed on first test so no need to examine Ratio: 1. Relational Economic Loss: (aka contractual and relational) economic loss that arises solely because of a relationship with the injured party 2. If the loss arises out of an employment contract, it is a contractual relational economic loss - Therefore, there is no foreseeability or proximity - No liability Class Notes: -these cases are usually about duty -these cases receive special treatment because the duty factor is highly involved - the leading case of relational loss is Norsk, read with Bow Valley. -finding for the Pl would create a flood of litigation from companies with injured employees. It is far to indeterminate. -para 51 -the injury of one person creates a ripple effect. -page 65, the McLachlin/LaForest approach is set out -proximity is not the end state, it also has to be found that the loss was foreseeable to the tortfeasor. FATAL ACCIDENTS ACT -page 67 of the SM -legislation allows an estate to sue a tortfeasor who causes death. -you can claim lost earnings if you are dependant on that person. 5. Possibly Other Categories? Martel Building Ltd. (Pl) v. Canada (Def) (SM 353) (treated rudely during negotiations w/ Dept of Public Works) v. (Dept of Public Works – Govt of Canada) [2000 SCC] Denied existence (in this case) of 6 th category of economic loss (bad / unfair / rude negotiations) - Through number of meetings, Martel led to believe contract w/ Dept of Public Works would be renewed, but it wasn’t - Martel was treated rudely and wasn’t told up front in pre-negotiations what was going on - In tendering documents, there were issues to do w/ space, security, renovations already completed that were additions to the bid proposed by Martel

- Martel was convinced by lack of info coming to him from govt they were not properly informed – would have been able to either adjust their bid or talk to these points - Contract went to company that bid $500k lower than Martel - Martel saying duty of care owed b/c of precontractual relationship (sufficiently proximate that activity by the govt like this would result in foreseeable economic loss) and duty of care extends to different stages of this process - Court says although it’s true that categories of economic loss are not closed, court has never before recognized this kind of a duty that Pls are alleging we should here - These categories are really analytical tools - Look at factors – SM 361 – which are relevant to proximity (para 50 – 51) - Para 50  factors for duty are physical propinquity, assumed or imposed obligations and close causal connection - Proximity exists here b/c of pre-contractual relationship  prima facie duty of care owed - But then with Anns test go to second branch – there are no sufficient policy reasons to allow this case to succeed on economic losses - SM 363  clearly set out reasons as to why second branch fails - Economic losses less worthy than physical damage - From public policy perspective it doesn’t make sense for courts to interfere w/ negotiations- not place for court to interfere – this would pre-determine the outcome and favour parties (pre-existing relationship would be owed higher standard of care by tort law, but this contradicts the fundamental principle that all parties be treated fairly) - Not prepared to say Martel was wrong in tort - This case looks at broad obiter discussion of this new category and why they’re NOT GOING TO ACKNOWLEDGE this as a new category (category 6) under economic loss - Badly, unfairly, rudely conducted negotiations  not what tort law is designed to address - Martel was aware of inherent risks in submitting bids, competition, etc – there was no negligent misrep, fraud, coercion, etc - Martel was unsuccessful  this is NOT going to be a new category - But can always fall back on McLachlin and LaForest’s comments that categories are never closed – perhaps w/ a different set of facts this category could possibly be created… unknown - pushed envelope on both LaForest and McLachlin’s comments in CNR  categories are not closed - new category that doesn’t fall into McLachlin’s factors for expanding LaForest’s categories, or into LaForest’s categories V. STRICT LIABILITY A. Origin and Scope 1. Rylands (Appl/Resp/Def) v. Fletcher (Resp/Appl/Pl) (built a water reservoir over disused mine shafts) v (mine got flooded as a result of the reservoir) (1868) UK HL – CB 515 - Those who engage in hazardous activity on their lands for their own profit, must expect to bear the cost to others nearby, if their activity causes harm Facts : Defs had a contractor build a water reservoir on their land. Unknown to Defs, the reservoir was built over disused mine shafts. As a result, when the reservoir was filled, water poured through the shafts onto the Pl’s neighbouring land. Pl brought an action for damages Issue: What is the obligation of a landowner towards his/her neighbour in case of escape that can cause harm to that neighbour’s land? ABSOLUTE duty Reasoning: - Exchequer Court – Blackburn J. => hazardous use - The Defs lawfully brought something on their land which, although harmless while it remained on their land, would naturally cause damage if it escaped

- Based his finding of liability on the fact that the Def’s activity was hazardous in nature, and was carried on solely for the Def’s profit and benefit. - Those who engage in hazardous activity on their lands for their own profit, must expect to bear the cost to others nearby, if their activity causes harm - Other examples: escaping cow eats neighbour’s corn, escaping sewage invades neighbour’s cellar, noxious vapour - HL - Lord Cairns => unnatural use - Focused on the unnatural use to which the land was put. In his view, anyone who used the land in an unnatural way was liable to those nearby if harm arose from that use. - Problem with this approach => what does unnatural mean? Risky, unusual or novel? - Ratio: (Lord Cairns) - If a landowner uses land for a "non-natural" use, such as for the purpose of putting something into the land that is not naturally in or on it, which escapes and causes damage to adjoining land, the owner has used the land at his or her own peril, and is liable to the adjoining landowner no matter how careful the owner was and what precautions were taken to prevent the damage. (Blackburn J. - dicta) - Those who engage in hazardous activity on their lands for their own profit, must expect to bear the cost to others nearby, if their activity causes harm. Exceptions to the general rule are acts of God and plaintiff’s own fault Class: - Principles aren’t settled yet (even though it’s old case) - Strict liability isn’t just one thing. Can arise different ways, but is often used accord to Rylands v Fletcher - Pl can’t recover in negligence. Def did everything a reasonable person would do in constructing a reservoir - Recovery in trespass? Water was trespassing, but Def didn’t put it there - Lord Cairn would have strict liability triggered based not on danger but on unusually or non-natural use of the land. Potentially wider because anything could be non-natural. What does non-natural mean? Much more uncertain 2. Nichols v. Marsland (1876) Ratio: A Def cannot be properly said to have caused or allowed the water to escape if was caused by an act of God or the Queen’s enemies (in the case of war) 3. Rickards (Pl) v. Lothian (Def) (occupied the 2 nd floor) v (occupier of a business building) (1913) PC – CB 519 Unusual use of land – plumbing is natural 3 rd party act defence Facts: Plugged basin in the 4 th floor lavatory of a commercial building. Water overflowed from the basin and caused damage to the stock-in -trade belonging to Pl, who occupied the lower floor of the building. Issue: Was this a non-natural use of water as explained in Rylands v. Fletcher? NO Reasoning: - No negligence was found => Rylands v Fletcher strict liability tort was Pl’s only hope - A Def cannot be said to have allowed the water to escape if was due to the malicious act of a 3 rd party - Furthermore, it is not every use to which land is put that brings into play the Rylands principle. It must be some special use bringing with it increased danger to others, and must not merely be the ordinary use of the land or such a use as is proper for the general benefit of the community - The provision of water supply to various parts of the house is not only reasonable, but has become, in accordance with modern sanitary views, an almost necessary feature of town life. - It would be unreasonable for the law to regard those who install or maintain such a system of supply as doing so at their own peril. Ratio: (Lord Moulton) – A Def cannot be said to have allowed the water to escape if was due to the malicious (conscious or deliberate) act of a 3 rd party. Where a person is using his land in the ordinary way and damage happens to the adjoining property without any default or negligence on his part, no liability attaches to him.

Furthermore, plumbing is not an unusual use of water (it is ordinary & reasonable) and so Rylands does not apply Class: - Gave Rylands v. Fletcher a very narrow interpretation - Modern plumbing is a natural use. This could suggest that natural means ordinary or non-risky 4. Read (Appl/Resp/Pl) v. J. Lyons & Co. Ltd. (Resp/Appl/Def ) (injured in an explosion while at work) v (owner of the munitions factor) (1947) UK HL – CB 525 Escape – No ST for ultra dangerous activities where there is no escape No personal injury in strict liability (matter for negligence only) Facts: Pl had been hurt by an explosion in a munitions factory in which she worked during WWII. It was established that the factory had not been negligent, but Pl sought recovery on the ground that the Def carried on the manufacture of shells, which to its knowledge were dangerous things. Issue: Can strict liability apply in a case that involves a dangerous activity on the Pl’s land that injures the Def on the Pl's land and that doesn't involve escape on the land of another? NO Reasoning: (Viscount Simon L.C.) - Strict liability as recognised in Rylands requires 2 conditions: (1) escape from the land of something likely to do mischief if it escapes and (2) non-natural use of the land - Escape means escape from a place which the Def has occupation of or control over, to a place which is outside his occupation or control. There was no escape in this case - Dicta: making of munitions at the govt’s request in time of war is not a ‘non-natural’ use of the land (Lord Macmillan) - An action for personal injuries requires negligence, not strict liability - There is no escape of something from one man’s land to another man’s - Dicta: in these days and in an industrial community it is not a non-natural use of the land to build a factory (Lord Porter) - In an action for personal injuries if there is no negligence there is no liability: but no reason to decide the issue - There was no escape Ratio: In order to apply the principle in Rylands v. Fletcher there must be "escape" of something likely to do mischief if it escapes from a place over which the defendant has occupation and control to a place which is outside of the defendant's occupation and control and requires the "non-natural" use of the land. In an action for personal injuries, if there is no negligence there is no liability (ie: no personal injuries damage in strict liability) Class: - What escaped here? Gunpowder from the shell. But no movement or migration from one parcel of land to another - These types of cases won’t fit under strict liability but will be dealt with under negligence - To the extent that something is explosive or volatile, should raise precautionary standards [ Bolton v Stone ] - Cannot recover damages for personal injury under strict liability – not followed. Both personal injury and property damage can be subject of Rylands analysis - Ex: if water rushed in and you were in mine, wouldn’t have to sue for personal injury under negligence and property damage under Rylands. Could do both under Rylands. - Not enough that there is an escape. Escape must be likely to do mischief => obvious that dangerous things are likely to do mischief - May get into problems where Court interprets non-natural as not ordinary, not risky. Then requirement that must contemplate escape to do mischief becomes important - Very narrow interpretation of the Rylands v. Fletcher principle A. Defences

- Liability under the Rylands v. Fletcher principle is strict but is not absolute 1) Consent - If the Pl is to benefit in part from the activity being carried out by the Def then it is clear that strict liability rules will not apply [ Pattison v Prince Edward Region Conservation Authority, 1988 ] - Consent may be explicit or implicit - Mere acquiescence in the Def’s acts by the Pl, without more, will not provide the Def with the defence of consent 2) Acts of the Plaintiff - Even where the Def might be strictly liable under the Rylands doctrine, if the Pl suffered damages due in whole or in part to his own acts, then the Def may escape liability altogether - This is very different from ordinary negligence law, where contributory negligence may lead to an apportionment of liability - In negligence, if Pl is at fault, it’s contributory negligence. In strict liability, however, it operates as complete defence. Wording of s.2 of contributory negligence Act speaks of “fault” and so it can’t be invoked in strict liability offences. Makes strict liability more of a blunt tool. - For the Def to have the Pl’s default as a defence, the Pl’s acts would have to be a significant or sole cause of the damage [ Heard v. Woodward, 1954 ] 3) Acts of God - A natural but extraordinary event which could not have been foreseen by the Def, who therefore owes no duty with respect to it. Key is unforeseeability by defendant - Traditional view: parties are expected to anticipate extreme versions of natural events and to take responsibility for failing to do so. A party would only be responsible for natural events beyond the extremes [ Seneka v Leduc, 1985 ] - Relaxed view: focus is on whether the individual could not have reasonably anticipated the extraordinary event [ Nichols v. Marsland, 1876 ] 4) Acts of Third Parties - Pl can’t be held liable for malicious (conscious or deliberate) acts of 3 rd parties [ Rickards v Lothian ] - If a stranger’s act was the proximate cause of the harm, Def cannot be responsible - Problem arises when a Def should have anticipated, but failed to anticipate that a stranger might cause damage 5) Statutory Authority - If the Def acts according to the requirements of a statute, and harm results, Def cannot be held strictly liable - In effect, the statute confers an immunity - However, the courts have never been fond of statutory immunities and there are a number of ways in which they are avoided or minimized by construing or interpreting the statute strictly: a) There is no presumption made that the statute has abrogated or limited the CL right to sue , unless there is an unambiguous statement that such is the case b) The activities carried out must be expressly authorized by statute or necessarily incidental to activities which were so authorized. More general or implied authorization will not confer immunity c) The statute is not presumed to permit careless execution of the statutory duties contained in it. Those who cannot prove that they did what was authorized and did it carefully will be found liable. Class: - Division between cases: a) Minority – don’t allow Statutory Authority to protect a public body to evade strict liability obligations b) Majority – will look at statute – won’t be liable for strict liability if authorised by statute - Need to look at principles from LAP – How express does conferral of authority have to be? - Courts split on interpretation - Normally courts strictly construe statutes to minimise or avoid the immunity - If ‘must’ do something – will get protection; if ‘may’ do it, then it won’t protect you - Must be expressly authorised or necessarily incidental to authority - Can only claim benefit of statutory authority of public authority has acted carefully (with reasonable care) – importation of negligence standard 1) Majority in Canada : Pl starts with strict liability. Then its up to Def to make out that they have statutory authority to do something AND in making out defence, burden of proof is on defendant to show that they acted with reasonable care => big advantage to Pl

1. Peters (Resp/Pl) v. Prince of Wales Theatre (Birmingham) Ltd. (Appl/Def ) (tenant – sprinklers burst and damaged Pl’s stock) v (landlord) (1943) UK CA – CB 507 Consent – defense worked Facts : Def theatre leased to Pl a shop in a building which contained a theater and, over Pl’s shop, a rehearsal room. Pl knew when the lease was granted that the rehearsal room had a sprinkler system installed as a precaution against fire. The system extended to Pl’s shop. Due to an exceptionally severe frost, the sprinklers in the rehearsal room burst and water damaged the stock in Pl’s Issue: Is the defense of consent open to the Def? YES ~ Pl consented to the risk of the water system Reasoning: - A sprinkler system cannot be treated as analogous to ordinary water-closets, lavatories and baths. It is a system in which there is a potential danger of the escape of an enormous quantity of water - It is not the purpose to which the water is being put which is decisive. It is that the Pl takes the premises as they are, and accordingly, consents to the presence there of the installed water system with all its advantages and disadvantages - When the Pl took the premises the sprinkler system was installed and he knew of it Ratio: (Goddard L.J.) – The plaintiff takes the premises as they are, and accordingly, consents to the presence there of the installed water system with all its advantages and disadvantages Class: - Note that this is a very rare defense and that the consent to the risk of escape will not relieve a Def guilty of negligence - Claim that sprinkler is unnatural use and escape is what caused property damage - Arguments against (not discussed in case): wasn’t an escape from one property to another; sprinkler system is not unnatural, it’s a natural use especially for a theatre. Argument that it was the weather that caused it and so can’t be attributed to the defendants - Sheila: not sure this would have been result in Canadian court today. Asking who should be insuring the property against water damage – LL or tenant B. Defences to Strict Liability CB: 531 - 535 Defences -consent. -knowledge of the use the land will be put -default of the plaintiff. It is not clear that contributory negligence rules apply -act of god defence. The court did not mention in Rylands that Queens enemies defence works too. -act of god is arguable. Can’t just point to a storm and say that is what caused it. Must be an act of god that is unforeseeable. Difficult in Calgary to say that the annual summer hail storm is an act of god. These happen frequently, so it has to be something really unusual. -Deliberate act of a third party. Has its roots in the act of god and queens enemies defences. The onus is still on the defendant. -legislative authority. Where an activity is clearly authorised by legislation then the defence may apply. This defence will be interpreted very strictly Examples where courts have not allowed the legislative authority test is Ryan v Victoria , where the court held that the interpretation of the legislation was negligent. -defence will be limited to inevitable damage, but if there are ways for the activity to continue without harm the court will take a hard look. It is not good enough that the defendant is trying to save money. If there is no alternate means then the defence may hold. -the elements of strict liability will apply. There has to be an unnatural use and an escape. CB: 535-536 Notes on Liability for Fires -when suing someone for a fire you have to show that the fire was an unnatural use of the land. -even before Rylands v Fletcher the common law recognised a special action of trespass on the case against occupiers for their “negligent” use of fire, resulting in its escape

-according to the common law once the pl has proven that the fire originated from the def property, the def has to establish the defence of act of God or act of a stranger -the principle in Rylands v Fletcher applies to some fires, however the qualifications of Rylands v Fletcher still apply The fire must be a “non-natural use of the land. CB: 536-539 Notes on Liability for Animals There are two types of dangerous animals 1. ferae naturae, animals that are dangerous as a group. Ie lions, tigers, bears, elephants, zebras etc. If damage is done by any of these creatures, strict liability is automatically imposed. -with wild animals there is no need for escape, and liability is strict. 2. mansuetae naturae, animals that may be dangerous as individuals, even though they may be of a species considered harmless. Ie: dogs, cats, horses, etc. Where one of these individuals is known to be dangerous, and harms someone, strict liability will be imposed. -in addition to these strict liability doctrines, animals may render their owners liable on negligence theory. -in Bacon v Ryan the court stated that it is not the ownership of the dog that creates responsibility, but the possession and control of it. C. Products Liability CB 539: Greenman v. Yuba Power Products Inc. , California SC (1963) Facts: The pl wife bought him a three in one Shopsmith saw, drill and lathe. A piece of wood he was working flew out of it and smoked him on the forehead. What a tool. Issue: Is the manufacturer liable? YES. Reasoning: -in the present case the plaintiff was only able to plead and prove an express warranty because he read and relied on the representations of the shopsmith’s ruggedness contained in the manufacturers brochure. -to establish the manufacturers liability it was sufficient that the pl prove that he was injured while using the shopsmith in a way it was intended to be used as a result of a defect in deign and manufacturer of which the plaintiff was not aware that made the shopsmith unsafe for its intended use. Ratio: a manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection of defects, proves to have a defect that causes an injury to a human being. Class: -strict liability as it applies to manufactured goods. --another way that people win on these is in Kn as there is an implied warranty of fitness. D. Vicarious Liability vicarious liability describes the event when the law holds one person responsible for the misconduct of another because of their relationship. CB: 547 671122 Ontario Ltd. v. Sagaz Industries, SCC (2001) (Resp seat cover supplier) (Appl who hired consultant that secured kn through bribe.) Facts: The resp suffered financial loss when it was replaced as the supplier of seat covers at Canadian Tire. This happened because a bribe was paid by a rival company’s consultant to the head of Canadian tires automotive division. Issue: is Sagaz vicariously liable for the tortious conduct of the consultant who was hired to assist them? NO

Reasoning: the consultant was not an employee of the supplier but an independent contractor. Based on policy considerations, the relationship between an employer and independent contractor does not typically give rise to a claim in vicarious liability. -vicarious liability is not a distinct tort, it is a theory that holds one person responsible for the misconduct of another because of the relationship between them. -vicarious liability does not diminish the personal liability of the tortfeasor. Two policy considerations: 1. vicarious liability provides a just and practical remedy to people who suffer harm as a consequence of a wrong perpetrated by an employee. 2. deterrence of future harm of employers. -the must common situation giving rise to a vicarious liability is a relationship of employer/employee. -subject to certain limited exceptions, employer/ contractor relationships do not give rise to a claim for vicarious liability. -if the employer does not control the worker, the policy justifications underlying vicarious liability will not be satisfied. This place a precise limitation on the scope of the doctrine. Ratio: the main policy concerns justifying vicarious liability are to provide a just and practical remedy for the plaintiff’s harm and to encourage the deterrence of future harm (Bazley). Vicarious liability is fair in principle because the hazards of business should be borne by the business itself, thus it does not make sense to anchor liability on an employer for acts of an independent contractor, someone who is in business on her own accord. Class: Policy reaons: 1. fair and just result 2. deterrence -the main aspect of the employer/employee relationship that courts look at is control. Who hires, pays, fires, provides equipment and directs activities? -the degree of control is determinant Bazley (Resp/Pl) v. Curry (Appl/Def) (SM 481) (former resident) v. (non-profit organization that ran homes for treatment of emotionally troubled kids) [1999 SCC] Vicarious liability Facts: Appl foundation, as a “substitute parent” practiced total intervention in all aspects of the lives of the children it cared for. The foundation’s employees were to do everything a parent would do, from general supervision to intimate duties like bathing and tucking in at bedtime. Appl unknowingly hired a pedophile to work in one of its homes. Appl did not know he was a pedophile; checked and was told that he was a suitable employee. After investigating a complaint about the employee, Appl fired him. Resp sued for compensation for the injury he suffered while in the Appl’s care. Issue: Is the Appl vicariously liable for its employee’s tortious conduct? YES – appeal dismissed – remitted to trial Reasoning: - The opportunity for intimate private control and the parental relationship and power required by the terms of employment brought to fruition the victims’ sexual abuse - The Appl’s enterprise created and fostered the risk that led to the ultimate harm - As between the Appl, which created and managed the risk, and the innocent victim, the Appl was to bear the loss Ratio: (McLachlin J.)

- Vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrong that accrues there from, even if unrelated to the employer’s desires - Once engaged in a particular business, it is fair that an employer be made to pay the generally foreseeable costs of that business - In contrast, to impose liability for costs unrelated to the risk would effectively make the employer an involuntary insurer - The fundamental question is whether the wrongful act is sufficiently related to conduct authorized by the employer to justify the imposition of vicarious liability - - In determining the sufficiency of the connection for intentional torts, the relevant factors include: a) the opportunity that the enterprise afforded the employee to abuse his or her power b) the extent to which the wrongful act (which occurs as a result of the opportunities ) may have furthered the employer’s aims c) the extent to which the wrongful act was related to friction, confrontation, or intimacy inherent to the employer’s enterprise d) the extent of power conferred on the employee in relation to the victim e) the vulnerability of potential victims to the wrongful exercise of the employee’s power (The main things to consider are the nexus) - Appl is not exempt from vicarious liability by virtue of its non-profit status Class Notes: -vicarious liability arises out of employment. The employment can cause opportunities of risk to arise. -employers never hire people to do wrong Salmond test: 1. The employee is acting within the authority of the employer Or 2. Whether the unauthorised acts are modes of doing the authorised act a. PRECEDENT; McLachlin says, in applying the test look at precedents. b. POLICY REASONS; If this is not possible the court should ask whether or not the case fits the policy reasons we have for vicarious liability (fairness and deterrence) i) ambit of risk created by employers enterprise. If the nexus is close enough then vicarious liability applies -the connection cannot be one of time and place. It has to be something more. A one-off in the staffroom does not make the employer liable. Caution must be exercised. See the relevant factors above. -in obiter the court says that time and place may negate vicarious liability. Jacobi (Appl/Resp/Pl) v. Griffiths (Resp/Appl/Def) (SM 497) (children who belonged to Club) v. (Boys & Girls Club & Program Director of the Club) [1999 SCC] Vicarious liability Facts: Boys and Girls Club employed Resp Griffiths as a Program Director. The Club required Griffiths to supervise staff and to organize activities and outings for children. Griffiths sexually assaulted 2 children in his home, and one child in the Club van. The Club terminated Griffith’s employment. The children brought an action against the Club for damages on the theory that it was vicariously liable for the assaults committed by Griffith. Issue: Is the Boys and Girls Club vicariously liable for the sexual assaults committed by one of its employees, while off the premises? NO – appeal dismissed – remitted to trial

Reasoning: - The opportunity that the Club afforded Griffiths to abuse whatever power he may have was slight. The sexual abuse become possible only when Griffiths subverted the public nature of his employment activities - The progress from the Club’s activities to the sexual assaults was a chain with multiple links, none of which could be characterised as an inevitable outgrowth of its predecessor - The links in the chain of events were the employee’s independent initiatives for his personal gratification. The employee’s ultimate misconduct was TOO REMOTE from the Club’s enterprise to justify the imposition of vicarious liability Ratio: Bazley v. Curry test applies  2 step process for determining when an unauthorized act of an employee is sufficiently connected to the employer’s enterprise that vicarious liability should be imposed: 1) A court should first determine whether there are precedents which unambiguously determine on which side of the line between vicarious liability and no liability the case fails - Courts have consistently held that mere opportunity to commit a tort does not suffice to impose no-fault liability. Even where the job-created opportunity is accompanied by privileged access to the victim, courts have not thought there to be a sufficiently strong connection between the type of risk created and the actual assault that occurred - Courts will find vicarious liability if the strong connection between the employment and the assault was enhanced by a combo of job-created power and job-created intimacy IS THIS WHERE THE FIVE FROM BAZLEY COME IN? 2) If prior cases do not clearly suggest a solution, the next step is to determine whether vicarious liability should be imposed in light of the broader policy rationales behind strict liability (costs; deterrence) - The theory is that a person who employs others to advance his own economic interest should in fairness be placed under a corresponding liability for losses incurred in the course of the enterprise. Non-profits lack the ability to internalize such costs - Deterrence also has to be assessed with some sensitivity to context, including the nature of the conduct to be deterred, the nature of the liability to be imposed, and the type of enterprise sought to be rendered liable  To find a strong connection, there must be a material increase in the risk of harm occurring in the sense that the employment significantly contributed to the occurrence of the harm Class: -the majority focussed on the main enterprise of the club, which was recreational activities. Griffith subverted the public nature of the club’s activities. -Mahoney figures this one is analytically wrong and wrongly decided, so don’t use it on an exam. Use Bazley instead. Blackwater v. Plint (SM 500) [2005 SCC] Facts: Charges of sexual abuse in residential schools. Pls brought action against Govt of Canada and the Church. Issues: Should the Church also be vicariously liable along w/ Canada? Were damages decided and apportioned appropriately? Holding: CA erred in finding that the Church was protected by the doctrine of charitable immunity. Also, TJ erred in finding a non-delegable statutory duty on Canada on the terms of the Indian Act . Appeal of Mr. Barney is dismissed. Appeal of Canada is allowed in part. Each party to bear own costs. Reasoning: (McLachlin) Vicarious Liability

- TJ was correct in concluding that both the Church and Canada are vicariously liable for the wrongful acts of Plint - The fact that wrongful acts may occur is a cost of business - When determining whether vicarious liability should be imposed, the court bases its decision on several factors, including: a) The opportunity afforded by the employer’s enterprise of the employee to abuse his power b) The extent to which the wrongful act furthered the employer’s interests c) The extent to which the employment situation created intimacy or other conditions conducive to the wrongful act d) The extent of power conferred on the employee in relation to the victim, and e) The vulnerability of potential victims - The TJ made the following findings to support that the Church should be vicariously liable as one of Plint’s employers: 1. The principal was hired by the Church subject to Canada’s approval 2. It was the Principal’s understanding he was hired and fired by the Church 3. The Church was involved in all aspects of the operation and management (periodic inspection, all hiring, religious education, etc) 4. The Church managed a pension plan for lay employees, though the employer’s contributions were paid for by Canada 5. The principal’s authority to dismiss employees was subject to review by the Church 6. The Church made periodic grants to the school’s operation 7. The Church inspected the school annually and provided the Christian education at the school 8. The Church appointed an advisory committee to ensure that Church policies were being carried out at the school - The TJ specifically found a partnership b/w Canada and the Church, as opposed to finding one acted independently of the other – no compelling jurisprudential reason to justify limiting vicarious liability to only 1 employer when a partnership exists - Church (as non-profit charitable organization) can still be liable - CA’s finding results in converting a policy observation in Bazley into a free-standing legal test that dictates that non-profit orgs should be free from liability for wrongs committed by employees, provided they are less at fault than a party better able to bear the loss  not the case! Non-delegable Statutory Duty - No non-delegable statutory duty can be inferred from language of the statute (therefore TJ was wrong on this) - Text of ss. 113 & 114 does not support the inference of mandatory non-delegable duty - Uses the permissive term “may” rather than “shall” - The power of the govt to enter into agrmts w/ religious orgs for the care and education of Indian children suggests that the duty is eminently delegable and was contracted out of by the govt Fiduciary Duty - Neither TJ or CA found breach of fiduciary duty – Mr. Barney appealed this – dismissed Apportionment of Damages - Uphold TJ’s finding of Canada 75% at fault and Church at 25% at fault - TJ found, as evidence, Canada in better position than the Church to supervise the situation and prevent the loss - Effect of prior abuse on Mr. Barney - Rules of causation consider whether “but for” the Def’s acts, the Pl’s damage would have been incurred on a balance of probabilites - Need to reconcile thin skull, crumbling skull, etc - Uphold TJ’s finding of no evidence as to effect of prior abuse  therefore TJ was right to isolate these particular traumas - TJ considered the correct factors in arriving at the damages awarded - Emphasized the nature and frequency of the assaults and the dreadful physiological and psychological effect on the victim

- No compelling reason to disturb TJ’s finding on punitive damages imposed on Def for “high-handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour” - CA correct to award a conventional amount of future loss of earnings damages Ratio: Class Notes: -trial judge found Canada liable and vicariously liable -church was found liable -court of appeal bought the argument that the church could be bankrupted. -BCCA created a charitable immunity and found that the church was not an employee but an agent. -the principle of vicarious liability applies where there is a significant connection between the wrong committed and the authority granted by the employer to the employee. -the victim has to get a just remedy and the wrong must be deterred consistent to Bazley -the court apportioned the damages as Plint was an employee of both the church and Canada -this is the most recent case and hould be used. Cost should never be a deterrent to litigation. A charter right should never be denied due to cost. IV. INTENTIONAL TORTS -This area of law developed to keep the peace, and maintain a well ordered society -the area of law is called trespass -the law of trespass is the oldest, and then there is the action of “case” Trespass: -trespass dealt with directness of interference with people or with their property or chattels -key is the concept of directness. -an interference with a person, their property or chattel will give rise to a remedy -no motive is required. -no damage is required either -the notion of security of the person, property or chattel and the importance of keeping those safe from direct interference. -no wrongful conduct or sense of fault is necessarily required as long as it is a direct interference. The wrongness arises where there is directness. This is unlike the requirement for mens rea. -evil intent is irrelevant. Intent to interfere is the key. -there is no evil intent to kiss someone, but there is direct interference by planting the kiss. -showing the interference is enough to prove the case Action of Case: -this morphed into negligence and eventually criminal law -this is wrongful conduct -damage must be proven -there must be evil intent or negligent intent -meaning that the damage could have been foreseen and was not prevented 1. wrongful conduct  fault 2. damage required 3. evil intent  negligence -these are the plaintiffs burden

A. Intentional Interference with the Person 1. Intention Goshen (Resp/Pl) v. Larin (Appl/Def) (CB 37) (pushed down by the Def and fractured his wrist) v. (referee at a wrestling match) [1974 NS CA] Once Pl proves injury, burden shifts to Def to prove no intention or negligence Facts: Def wrestling referee made an unpopular decision as far as the crowd was concerned. After leaving the ring he proceeded toward the dressing room escorted by the police amidst a mass of thrown objects. He was struck on the head by one of these objects and fell to his knees, a bit stunned. He got up and continued out of the arena with his right arm shielding his face. Although no one saw him strike anybody, Pl alleged that he pushed him Reasoning: - Appl did shove or push the Resp to the floor, but there was no malice and no intention on the part of the Appl to wilfully injure him - Appl did not act negligently because he was in protective police custody at the time Ratio: In an action for damages in trespass where the Pl proves that he has been injured by the direct act of the Def, the onus falls upon the Def to prove that his act was both unintentional and without negligence on his part ACCIDENTAL, NEGLIGENT, AND INTENTIONAL CONDUCT – CB 38 Accident  Negligence  Intentional Torts - When considering the Def’s conduct as an element of a cause of action in tort, and describing it as accidental, negligent, or intentional, one is having regard to the Def’s state of knowledge and appreciation of the consequences of the contemplated act, and the steps which ought to have been taken to avoid them Differences in knowledge and foreseeability of consequences - Accidental: where a Def acts and produces consequences which were either not reasonably foreseeable or not reasonably preventable - Negligent: where a Def ought to have reasonably foreseen and avoided the result - Intentional : where a Def acts either knowing with substantial certainty what the consequences of the act would be, or desiring them, the Def can be said to have intended those consequences - As a practical matter, suing someone in tort has much to do with the Def’s ability to pay. People are not normally insured for intentional acts. Class: -Continuum: Accidents:---------------------Negligence:---------------------------Intentional torts ---- ---------- Deliberate Intent to injure -not preventable -foreseeable -knows with certainty -criminal -consequences unforeseen -could have been avoided or substantial certainty of consequences of action Garratt (Appl/Pl) v. Dailey (Resp/Def) (CB 41) (injured when sat down and missed the chair) v. (5-year old who moved the lawn chair) [1955 SC of Washington]

Absence of intent irrelevant if knowledge is present Facts: This case involved an action against a five-year-old boy for injuries sustained when he allegedly pulled a lawn chair out from under the plaintiff when she started to sit down. The boy claimed that while the Pl was in the house he moved the chair slightly in order to sit in it, and that the Pl later sat down, not realising that the chair had been moved. The trial judge dismissed the action, finding that the boy had moved the chair, but without the purpose or intent of harming the Pl. Reasoning: - A battery would be established if it was proved that when the boy moved the chair, he knew with substantial certainty that the Pl would attempt to sit where the chair had been - Mere absence of intent to injure the Pl or to play a prank on her or to embarrass her, or to commit an assault and battery on her, would not absolve him from liability if, in fact, he had such knowledge. Ratio: A battery would be established if the Pl, when he moved the chair, knew with substantial certainty that the Pl would attempt to sit down where the chair had been. The mere absence of intent to injure, play a prank, or embarrass would not absolve him of liability if in fact he had such knowledge. Class Notes: -case pled in trespass and negligence -court follows Cook v Lewis where the two hunters shot simultaneously at a “deer” and hit a person -court found that the def was not acting negligently or with intent Test: 1. Pl has to show a trespass, then the onus shifts 2. Def has to disprove negligence and/or intent Note 2 page 39 Ellison v Rogers CB: 41 Garratt v. Dailey , Washington SC (1955) -age does not apply as the intent of this area of law is to keep the peace and order in society. -intentional tort does not require evil intent Carnes(Resp/Pl) v. Thompson (Appl/Def) (CB 42) (Def accidentally hit Pl with pliers) v. (attempted to evict Pl and her husband) [1932 Supreme Court of Missouri] Transferred intent - If 3 rd party is accidentally injured, Pl is still liable in intentional tort Facts: The Def in an attempt to evict a former employee and his wife from a farm house, tried to hit the husband with a pair of pliers. The husband dodged the blow and the Def corked the wife. The wife, upon coming to, brought the action before the court. Issue: Is the Def liable even though he never intended to hit the Pl (was aiming for her husband)? Ratio: If one person intentionally strikes at, throws at, shoots at another, and unintentionally strikes a third person, he is not excused, on the ground that it was a mere accident, but it is an assault and battery of third person. The Def’s intention, in such a case, is to strike an unlawful blow, to injure some person by his act, and it is not essential that the injury be to the one intended. Class Notes:

- court says defence of ‘I didn’t intend to hit her, I meant to hit him – it was an accident’ doesn’t work  can’t use the accident defence b/c you had the intention to touch / threaten to touch somebody - go to the purpose for which this tort was created – to protect bodily integrity - here you have an invasion of somebody’ bodily integrity even if it was a different person - doctrine of transferability  still a tort here when hits his wife rather than intended man - have it for notion that tort is trying to protect bodily integrity and in both instances that is violated, so won’t let Def off on a technicality intention can be transferred from person to person, and from tort to tort Basley (Pl) v. Clarkson (Def) (CB 43) (didn’t give permission for Def to be on his land) v. (accidentally mowed some of Pl’s lawn) [1681] Intentional Act - mistake is no defence Facts: The Def became a little carried away while mowing his hay and mowed some of the Pl’s. The Def apparently didn’t notice he crossed the balk (the dividing ridge) and the hade (strip of land left unploughed to act as a dividing line). Ratio: - Mistake as a defence doesn't work in intentional torts - He intended his result and is therefore liable - What’s important is that the Def’s actions were voluntary - His intentions and knowledge are not material because they cannot be ascertained Class Notes: - mistake is no defence here b/c the intention was clear – to cut down the grass there - Note 3  City of Calgary expropriated Pl’s land and a number of yrs later, SCC found order was invalid so Pls took action against city for trespass - City said didn’t intend to trespass – relied on expropriation order - Court said didn’t matter – City intended to do exactly what they did - Volition is the important aspect -Note 4: Def shoots pl dog thinking it was a wolf -liable due to the intent. Smith v. Stone (CB 44) ( [King’s Bench 1647] Non-voluntary action cannot be intentional Facts: Pl brought action against Def for trespass. Def pleads that he was carried onto the land by force and violence of others, and was not there voluntarily. Reasoning : Trespass committed by those carrying him onto the property, no voluntary action on the part of the Def Ratio: - He that drives my cattle into another man’s land is the trespasser against him, and not I, who am owner of the cattle. - It is a general condition of tort liability that the act of the Def must be voluntary in the sense that it was directed by his conscious mind. Class Notes:

- court held, no intention on party of Stone to trespass on Smith’s property o it wasn’t his choice  element of volition is required o the mind must be directing the body. o The others intended the trespass. o not enough if others intend the consequence and you don’t Tillander (Pl) v. Gosselin (Def) (CB 45) (baby who received fractured skull and brain damage from actions of Def) v. (3-yr-old who dragged baby) [1967 ON HC] ‘Tender years doctrine’ - Young child cannot act intentionally (also not voluntary) Issue: Can a 3-year old infant be held responsible in damages? NO Reasoning: - Followed Cook v Lewis TEST: 2) Child of such tender years clearly couldn’t be guilty of negligence because such an infant is considered to be lacking in sufficient judgement to exercise reasonable care 3) Likewise, the child cannot be said to have acted deliberately and with intention when the injuries were inflicted upon the baby 4) Cannot describe the act of a normal 3-year old child in doing injury to the baby as a voluntary act on his part Ratio: - A child of tender years lacks the mental ability to appreciate or know the real nature of the act he is performing - Therefore, the act is not intentional Class Notes: - consequences – this is what Court will look for o would 3-yr old understand the consequences here? o No, not according to the Court - Mahoney thinks 3-yr olds do have understanding of cause and effect o But might be different if thought it was a doll, etc o But good decision overall b/c 3 yr olds shouldn’t be tortfeasors Lawson (Appl/Pl) v. Wellesley Hospital (Resp/Def) (CB 47) (non-psychiatric patient attacked by a psychiatric patient with a history of violent conduct ) v. (hospital) [1975 ON CA] Mentally ill person might not be able to act intentionally (also not voluntary) Ratio: (Dubin J.A.) - Where a person, by reason of mental illness, is incapable of appreciating the nature of quality of his acts, such person has committed no tort since the intention, which is an essential element of the cause of action, is missing - It is an essential element in the tort of assault that there be a voluntary act Class Notes: - challenge here was to show no tort was committed even though violent act, b/c if no tort then hospital would have to pay for the harm - backwards way of going at the hospital – show it was NOT a tort and then hospital would be on the hook

- must be a voluntary act (volition directed by the mind) - if Pl establishes that patient suffered from such profound mental disorder that he was incapable of comprehending the nature or quality and consequences of the act or is unable to form the necessary intention then it cannot be a tort since the intention is missing  cannot be said to have committed a tort - Note 6 on CB 49 o Similar case o Defence raised of mental incapacity o Moral quality of it  Def doesn’t have to appreciate that what he’s doing is wrong  Much lower standard of intention than in criminal law  In civil cases, don’t need to know it was wrong  Key thing is what consequences did they desire B. Assault Assault: Intentionally causing another person to fear imminent contact of a harmful or offensive nature. Assault is the intentional creation in another person of a reasonable apprehension of imminent harmful or offensive contact. As will be seen, harmful or offensive contact constitutes a battery. Accordingly it can be said that assault is the creation of a reasonable apprehension of battery. Elements of Assault: 1) Reasonable Apprehension - Assault is committed where the Pl has a reasonable apprehension of imminent harmful or offensive contact, even if the Def in fact lacks the actual ability to cause the harm - E.g. Pointing an unloaded gun can constitute assault [Kennedy v Hanes, 1940] - Actual fear on the part of the Pl is not required; what is needed is merely an apprehension of the harm 2) Imminent - The apprehended contact must be imminent - If the Def threatens to harm the Pl at some point in the future, the conduct does not constitute the tort of assault - E.g. It would not constitute assault to threaten someone over the telephone, unless the call is made from very close by, or the threat is to detonate a bomb by remote control - E.g. of assault: shaking a fist [Bruce v Dyer] ; unleashing a growling dog Relationship Between Assault and Battery - Can have assault without battery. E.g. Def takes a swing at Pl but misses [I. De S. & Wife] - Can have battery without assault. E.g. Def strikes the Pl from behind or while Pl is asleep I. De S. & Wife (Appl/Pl) v. W. De S (Resp/Def) (CB 50) (pub owner) v. (obnoxious drunk who wanted in) [1348] Actual physical contact not required for assault Facts: Def came to a pub to drink. Upon finding the door closed he starting hitting at the door with a hatchet. As he was pounding, the female Pl poked her head out a window and asked him to stop. The guy struck at her with the hatched but did not hit her. Issue: Was there trespass even though no physical harm was done? YES

Ratio: (Thorpe C.J.) There was harm done, and a trespass for which they shall recover damages, since Def made an assault upon the woman, although he did no other harm Class Notes: - no offensive contact being made here – just swung the hatchet at the Pl (she wasn’t hit) - court held it is also harmful to cause the Pl an immediate apprehension of harm - didn’t need to hit her w/ hatchet, just needed to create in her the immediate apprehension of being hit - purpose of this area of the law is to maintain the peace Stephens (Pl) v. Meyers (Def) (CB 51) (Chairman of a parish meeting) v. (threatened Def at a public meeting) [1830] Assault requires the available means to carry out the threat Facts: Def, a participant at a public meeting, threatened to remove the chairperson and advanced towards him, fists clenched. He was stopped before he got near enough to the chairperson to strike him. The jury found in favour of the chairperson. Ratio: Not every threat (when there is no actual violence) constitutes an assault. If the Def was advancing with intent to harm, and if he would have done so if he had not been stopped, then that amounts to an assault in law. To be an assault there must be means available to carry out the threat. Class Notes: - court held that he had committed an assault by being just about to strike the Pl and intending to do so - there must be a means of carrying the threat into effect, and it must be imminent - sent back for trial w/ question being whether the means was available to carry out the threat - wouldn’t be an assault if the Chairman believed the Def would be stopped Tuberville (Pl) v. Savage (Def) (CB 51) ( [1699 KB] Must be an intention to assault Facts: In the course of some 17 th Century banter, Pl, put his hand on his sword and said to Def, "If it were not assize-time (i.e. court in town), I would not take such language from you." The Def retaliated by hitting the Pl in the eye. The Court of King's Bench dismissed Def's action for assault. Ratio: If one strikes another in discourse, it is no assault, because there is no intention to assault. If one who intends to assault strikes at another and misses him this is an assault. So, if a person holds up his hand against another in a threatening manner and says nothing, it is an assault. Class Notes: - was no assault here - conditional threat “if it wasn’t assize-time” – so he’s not going to do it  not an immediate apprehension of harm - Def unsuccessfully argued self-defence - E.g. “come one step closer and I’ll run you through”  there’s an out, don’t come closer - E.g. “I’ll run you through if you don’t get out of here”  immediate apprehension of harm? - E.g. “I’ll run you through if you don’t give me your money”  yes, b/c this is illegal act - E.g. Def phones Pl and tells him he’s coming over to shoot him  No, b/c doesn’t meet test for “immediate apprehension of harm” – there is a delay which doesn’t fit this requirement - E.g. Def arrives and knocks on the door  still not an assault

- E.g. Pl answers the door and Def is there w/ gun pointed  yes! This is an assault - Immediate apprehension of harm is a subjective test – what you apprehend (i.e. doesn’t matter if gun is loaded or not – if immediate apprehension of harm is still there then it’s assault) - E.g. B is threatened to be shot at while asleep, when he wakes up he is told of it then has a heart attack - Do have apprehension but it is delayed b/c not conscious of the time - Public policy reason – concept of bodily integrity that needs protection  something wrong w/ having no consequences here for putting loaded gun to somebody’s head - b/c of twist of the facts are we going to leave it and have no repercussions? - Could then ‘transfer the tort’ - E.g. of shooting over someone else’s property and shooting a person on it - Intention was to trespass (shoot over the property) but court found trick that the tort was trespass of the person (shooting him) even though this wasn’t the intention - Might say here that the fact that there was a delay in response was irrelevant b/c immediate apprehension was there as soon as person woke up – just delayed by sleep - Another argument – if can prove nervous shock – could say the intention might have been to assault the Pl or to batter the Pl by pulling the trigger and you didn’t do it, but you still committed a tort  the intentional tort of nervous shock - Red flags here: - Whole purpose of this area of the law is to prevent his kind of behaviour (to prevent retaliation, escalation of tension and threat of violence)  so court will push and pull the law to make it fit Bruce (Pl) v. Dyer (Def) (CB 53) (wouldn’t let Def pass & then gestured with a clenched fist) v. (hit Pl & fractured his jaw) [1970 ON] Facts : Def attempted to pass a line of cars on the highway, but because of an oncoming vehicle was unable to do so. He then attempted to pull into a space in the driving lane between the 1 st and 2 nd cars in the line. Pl, driving the 2 nd car, accelerated and closed the gap, forcing Def to fall back and to enter the space between the 2 nd and 3 rd cars. Pl claimed that thereafter Def drove with his car's high beams on, in retaliation. Def claimed that Pl kept accelerating to prevent him from passing. After some distance, Pl suddenly stopped his car, forcing Def to stop, and gestured at Def with a clenched fist. A fight ensued in which Def struck one blow that fractured Pl’s jaw. Pl brought an action for assault. Def claimed self-defence on the basis that Pl’s conduct on the highway had constituted assault. Ratio: (Ferguson J.) - The striking of a person against his will has been, broadly speaking, always regarded as an assault - Attempted assault is itself an assault; so an attempt to strike another is an assault even though no contact has been made - Usually, when there is no actual intention to use violence there can be no assault. When there is no power to use violence to the knowledge of the Pl there can be no assault - However, there need not be in fact any actual intention or power to use violence, for it is enough if the Pl on reasonable grounds believes that he is in fact in danger of violence (reasonable man test) - Therefore, if a person shakes his fist at another the person so assaulted may strike back, if he, on reasonable grounds, believes that he is in danger - One who is being assaulted has the right to hit back in defence of oneself, one's property or one's way. The defence, though, must not be disproportionate to the severity of the assault. Class Notes: 3. Battery Class Notes - in CC  assault and battery are the same thing – a person commits an assault when, w/out consent, applies force to another or attempts to apply force (s. 265- a) is assault and b) is battery)

- Cole v. Turner [1785]  common law dfn - The least touching of another is battery - Can be touching w/out it being battery - American Restatement - Battery if intending to cause (or cause imminent apprehension of causing) harm, if those occur to either the party or a third person - Hostility is not required – it can be a mistake, so long as the contact is offensive Battery: the intentional infliction of a harmful or offensive contact with another person Trespass to person is essentially battery. Elements of Battery 1) Intention - Def must have intended the harmful or offensive contact to occur. However, he need not have intended to actually harm or injure the Pl [ Wilson v. Pringle, 1986 ] - The focus is on the act itself and not on the consequences of the act 2) Harmful or Offensive Contact - Any touching of another person, however slight, may amount to a battery [ Collins v. Wilcock, 1984 ] - The contact does not have to harm the Pl to constitute battery. It must merely be offensive or unwanted (e.g. spitting). If the contact is unwanted by the Pl, it does not matter that the Def did not intend it to be offensive (e.g. unwanted kiss) - However, jostling in a crowd or tapping someone on the shoulder to get his attention do not constitute battery because a certain amount of unwanted contact is considered by the courts to be inevitable in everyday life [ Cole v Turner ] - Battery even if the Def did not intend the consequences. (No doctrine of foreseeability in intentional torts) [ Bettel et al. v.Yim ] - Battery even if the purpose of the contact is meant to benefit the person (e.g. surgery or blood transfusion, if performed without consent) - Battery even if the victim is unaware of the contact at the time it is made (e.g. sexual touching of an anaesthetised patient) [ Schweizer v. Central Hospital, 1974 ] 3) Another Person - Contact need not be with the Pl’s body, it may be with something the Pl is carrying or wearing - Contact can be made by a part of the Def’s body, by something the Def is carrying, or by something the Def has thrown Cole v. Turner (CB 55) ( [1705 Engl] Ratio: (Holt C.J.) 1) The least touching of another person in anger constitutes battery {In Canada it doesn’t have to be in anger – battery is wider than described in this case} 2) If 2 or more meet in a narrow passage, and without any violence or design of harm, the one touches the other gently, it will be no battery 3) If either uses violence against the other, to force his way in a rude inordinate manner, it will be a battery; or any struggle about the passage to that degree as may do hurt, will be a battery. Bettel et al. (Pl) v. Yim (Def) (CB 57) (threw a lit match into the Def’s store) v. (storeowner who accidentally hit Pl) [1978 ON County Court]

Good case to cite – court is very clear No doctrine of foreseeability in intentional torts (don’t need to show proximity) Facts: Pl and his friends threw lit matches into a store, and one match, thrown by Pl, caused a bag of charcoal to ignite. Def grabbed Pl with both hands and, while shaking him, Def’s head came into contact with Pl’ nose, severely injuring Pl (why you little!). Def’s purpose in shaking Pl was to force him to confess to setting the fire; he did not intend to injure Pl in the manner he did, though he did intend to grasp him firmly and to shake him. The action for assault against the Def was successful. Issue: Can an intentional wrongdoer be held liable for consequences which he did not intend? YES Is the doctrine of foreseeability as found in the law of negligence applicable to the law of intentional torts? NO Reasoning: - Properly speaking, this action should have been battery, which is the intentional infliction upon another of harmful or offensive contact. In Canada, however, the distinction between assault and battery appears to have been blurred, so that assault may include battery. - Following the test in Cook v Lewis , onus is on Def to disprove both intention and negligence on his part - It’s obvious that Def desired to bring about an offensive or harmful contact with the Pl for the purpose of extracting a confession from him. Therefore, Def’s own evidence proves intention Is Def liable for consequences he did not intend? - As a matter of sound policy , it is clearly better that the risk of such unintended and unforeseeable consequences should fall on the intentional wrongdoer than on his victim - If physical contact was intended, the fact that its magnitude exceeded all reasonable or intended expectations should make no difference - To import negligence concepts into the field of intentional torts would be to ignore the essential difference between the intentional infliction of harm and the unintentional infliction of harm resulting from a failure to adhere to a reasonable standard of care and would result in bonusing the deliberate wrongdoer who strikes the Pl more forcefully than intended Ratio: (Borins) – The intentional wrongdoer should bear the responsibility for the injuries caused by his conduct and the negligence test of foreseeability to limit, or eliminate liability should not be imported into the field of intentional torts. The logical test is whether the Def was guilty of deliberate, intentional, and unlawful violence or threats of violence. If he was, and a more serious harm befalls the Pl than was intended by the Def, the Def (and not the innocent Pl) must bear the responsibility for the unintended result Class Notes: 4. Sexual Wrongdoing (CB 61) - Relatively new action in civil law – probably as a result of more public awareness of sexual abuse, esp of children - Institutional abuse cases in past number of years have been quite numerous - Also, higher damages lead to more frequent suits b/c more worthwhile - Unwanted sexual contact clearly constitutes a battery and may also constitute other torts such as assault and intentional infliction of emotional distress. - In many cases, sexual wrongdoing amounts to a breach of trust  breach of fiduciary duty [ M.(K.) v. M.(H.) ]

Norberg v. Wynrib (1992) SCC Facts: female patient successfully sued her doctor for a sexual battery. The doctor had agreed to prescribe a drug to his addicted patient in exchange for sexual activities. Ratio: Where 2 parties are in a position of inequality and where the dominant party exploits that position, consent is not a valid defence M.(K.) v. M.(H.) (1992) SCC Ratio: SCC upheld a claim of an incest victim against her father both as a tort and a breach of fiduciary duty. Limitation period for a sexual battery based on incest doesn’t begin to run until the victim discovers the connection between the harm and the incest (therapy in this case). K.(W.) v. Pornbacher (1997) BC SC Ratio: Litigation against institutions responsible for the care of persons victimized while in their custody. Bishop found personally negligent and the church vicariously liable for sexual assault a priest inflicted upon the Pl. Samms v. Eccles (1961) Utah Ratio: Victims of sexual misbehaviour may also be able to bring an action in intentional infliction of mental suffering. Pl received persistent indecent proposals (accepted even though no physical injuries) Lajoie v Kelly (1997) Man QB Ratio: A new tort action which has emerged is that of “sexual harassment” 5. Intentional Infliction of Mental Suffering Intentional Infliction of Mental Suffering: The performance of an act or the making of a statement (probably false) which is calculated to cause mental anguish to the Pl and which in fact causes such mental anguish Wilkinson (Pl) v. Downton (Def) (CB 64) (suffered emotional distress)v. (practical joker) [1897 QB] Important case – will be a useful tool! First recognition of tort of intentional infliction of mental suffering Facts : Def, as a practical joke, falsely represented to Pl, that Pl’s husband had had a serious accident in which both his legs were broken. Pl suffered acute emotional and physical distress and spent a long time recovering. These consequences were not found to be the result of previous ill health or a predisposition to nervous shock. Reasoning: - Def has wilfully done an act calculated to cause physical harm to the Pl – that is to say, to infringe her legal right to personal safety, and has in fact thereby caused physical harm to her - An intention to produce such an effect on the Pl can be imputed to the Def. It is difficult to imagine that such a statement, made suddenly and with apparent seriousness, could fail to produce grave effects, and therefore an intention to produce such an effect must be imputed. Ratio: (Wright J.) - When a person wilfully does an act calculated to cause physical harm to another, or, in other words, infringes on another's legal right to personal safety and, in fact, thereby causes physical harm, there is a cause of action if there is no justification for the act - The result is intended (or can be imputed) - A person intends the natural consequences of his act

- It is no answer in law to saw that more harm was done than anticipated, for that is commonly the case with all wrongs B. Defences to Intentional Torts 1. Consent O’Brien (Appl/Pl) v. Cunard (Resp/Def) (CB 99) (immigrant passenger) v. (steamship doctor) [1891] Don ’t cite for the decision – example of what judges shouldn’t do! (same with Norberg ) Nature of consent – example of implied consent No battery Facts: Passengers immigrating to US. In Boston there are strict quarantine regulations in regard to the examination of immigrants, to see that they are protected from smallpox by vaccination. Only those persons who hold a certificate from the doctor of the steamship, stating that they are so protected, are permitted to land without detention in quarantine, or vaccination by the post physician. Notices of the regulations at quarantine, and of the willingness of the ship’s doctor to vaccinate were posted about the ship in various languages. Pl stood in line with other women, and saw the procedure for the women in front of her. When it was her turn, she held up her arm to be vaccinated. Issue: Did the Def commit an assault on the Pl? NO Reasoning: - There was nothing in the conduct of the Pl to indicate to the surgeon that she did not wish to obtain a card which would save her from detention at quarantine, and to be vaccinated, if necessary, for that purpose - All objective manifestations and surrounding circumstances indicated consent. There were notices posted; she saw other women before her get vaccinated; and she held out her arm Ratio: (Knowlton J.) Consent can be explicit or implied. If the Pl’s behaviour was such as to indicate consent on her part, the Def was justified in his act, whatever her unexpressed feelings may have been. In determining whether she consented, he could be guided only by her overt acts and the manifestations of her feelings Class Notes: Norberg (Appl/Appl/Pl) v. Wynrib (Resp/Resp/Def) (CB 101) (young drug addicted patient) v. (elderly doctor) [1992 SCC] Dissent here is a very attractive argument – welcome change to the law – good extension of trust law Nature of consent - consent must be voluntary – not under duress No battery Facts: Pl became addicted to painkillers, which she had obtained from various doctors and also from her sister. She then began seeing the Def doctor. At some point after Pl began obtaining prescriptions for painkillers from Def, he confronted her about her addiction and she admitted to it. Def then made suggestions of a sexual nature, pointing upstairs to his apartment. After this incident, Pl got painkillers from other doctors, but when they reduced her supply she went back to Def and gave in to his demands. Fondling and simulated sexual intercourse occurred several times

during the course of over 1-year. After a while, Pl told Def that she needed help with her addiction; he told her to "just quit". Def ceased giving Pl prescriptions after she became the subject of a criminal investigation, but continued to give her pills after visits upstairs. Pl sought damages on the grounds of sexual assault, negligence, and breach of fiduciary duty and breach of contract. Issue: Can the defense of consent be raised against the intentional tort of battery in such circumstances? NO Reasoning: Battery – the Nature of Consent - Failure to resist or protest is an indication of consent if a reasonable person who is aware of the consequences and capable of protest or resistance would voice his objection - However, consent must be genuine ; it must not be obtained by force or threat of force or be given under the influence of drugs - Consent may also be vitiated by fraud or deceit as to the nature of the Def’s conduct - Furthermore, in a situation where a Pl is induced to enter into an unconscionable transaction because of an inequitable disparity in bargaining strength, it cannot be said that the Pl’s act is voluntary. For consent to be genuine, it must be voluntary - Two-step process in determining whether or not there has been legally effective consent to a sexual assault: 1. proof of an inequality between the parties which will ordinary occur within the context of a special “power dependency” relationship 2. proof of exploitation. A consideration of the type of relationship at issue may provide a strong indication of exploitation. Community standards of conduct may also be of some assistance Application to this Case 1) An unequal distribution of power is frequently part of the doctor-patient relationship. This makes opportunities for sexual exploitation more possible than in other relationships. This vulnerability gives physicians the power to exact sexual compliance. Def’s medical knowledge and knowledge of the Pl’s addiction combined with his authority to prescribe drugs, gave him power over her 2) There was exploitation because a reasonable practitioner would have taken steps to help Pl end her addiction - Pl’s drug dependence diminished her ability to make a real choice. She was very vulnerable - While Def may have vulnerabilities of his own, he was the one that instigated the relationship - Keep in mind that while addiction may indicate an inequality of power, this will not by itself render consent legally ineffective. There must also be exploitation Ratio: (La Forest J.) – Consent must be genuine and informed; it must be voluntary and it cannot be obtained by - force or the threat of force, - fraud or deceit as to the nature of the defendant's conduct, - or under the influence of drugs Two-step process in determining whether or not there has been legally effective consent to a sexual assault: 1) Proof of an inequality between the parties which will ordinarily occur within the context of a special “power dependency” relationship 2) Proof of exploitation. A consideration of the type of relationship at issue may provide a strong indication of exploitation. Community standards of conduct may also be of some assistance Class Notes: - Iacobucci connects harm to consent – no harm if consensual  controversial dissent - Turning civil intentional tort of battery into same approach that’s taken in criminal law (serve different purposes and incorporating problems of burden in criminal law into his analysis) - (1) Def intended to do the action and (2) the reasonable person would have taken action to be harmful / offensive - For sexual activity, act is harmful if not consent - He was older and educated, she was young, uneducated and a drug addict  these are the two parties involved when thinking about consent in this case - For battery, she has to show it was an unwanted touching - He pled consent – that she consented to this touching

- So court here had to figure out the boundaries of consent in this factual situation (for the purposes of battery in civil law) - Majority looked at relationship b/w doctor & patient  ppl go to doctors when they’re vulnerable / going for help by dfn and there is therefore a power imbalance, by dfn - The doctor has a legal and statutory and contractual duty to look after the person that comes to see them - Duty to care for the patient - Furthermore, there was a big imbalance of power (he was the power –holder using his power to do so and also the power is derived from his relationship in law to her that he is abusing) - Held that given the circumstances of exploitation of his own patient, that there was no consent - Minority (Dissent) (McLachlin & L’Heureux-Dube) decides w/ majority that Pl should win but for very different reasons! - Hang on a minute, imbalance of power is important, but consent isn’t even relevant here - That would set the bar too high – the cases where you could win would be too rare - Said when you’re in a position of trust (doctors to patients) you have a fiduciary obligation not to harm the interests of the beneficiary of the trust relationship - It doesn’t matter if she consented – he was not entitled to do something which would harm her further (furthering her drug habit and having sex w/ her to feed the habit) - It’s up to him to say “No, that will harm you further – it is my duty to take care of you”  he had the duty to get her off the drugs and, at worst, not do anything to worsen it (by satisfying his own desires to feed her habit) - Duty of trust / fiduciary relationship is the strongest legal duty – duty to do no harm to the beneficiary  over and above the tort relationship which is just not to harm - For trust relationship, cannot do anything which negatively affects their interests - SCC said there are other things that can vitiate consent (other than having a gun to your head) – - Power relationship, doctor’s behaviour in terms of community standards (using her addiction for his own benefit), etc - Court held (SCC) that there was no free consent in this case - Task force at this time – b/c a number of cases of doctors exploiting their female patients - Coincidentally the task force reported right before this decision - They recommended zero tolerance for any sexual activity b/w doctor and patient (based on relationship of power-imbalance) - CB 109 – McLachlin and L’Heureux-Dube’s decision - Sex was consensual, but Norberg is liable for breach of fiduciary duty - This would be more in line w/ report of the task force (in note above) - Say it doesn’t matter if it is consensual – the fiduciary duty requires doctor to refuse any sexual relations w/ the patient b/c of imbalance of power and the community standards argument - Law society has basically picked up on this - If any allegation against professional for sexual assault, the burden shifts to the professional! Very big change – stakes are high  don’t even look at consent here, looking only at fiduciary responsibility - This is important decision- for all professionals dealing w/ vulnerable people Malette (Resp/Pl) v. Shulman (Appl/Def) (CB 114) (Jehovah’s Witness injured in a motor vehicle accident) v. (doctor who treated her) [1990 ON CA] Consent in Medical Context  card = consent Battery in this case Facts: Pl was severely injured in a car accident and taken, unconscious, to the Def hospital. The Def performed a blood transfusion even though he saw a card that was discovered in Pl’s purse identifying her as a Jehovah's Witness and requesting, on the basis of her religious convictions, that she not be given a blood transfusion under any circumstances. Def’s opinion was that the transfusion was necessary to preserve Pl’s life and health, so he ignored the card. He also refused to follow Pl’s daughter's instructions to stop the transfusion. Pl recovered and brought an

action against the hospital, its executive director, Def and four nurses, alleging that the transfusion constituted negligence and assault and battery on the basis that Def tortiously violated his patient's rights over her own body (unprivileged battery). Reasoning : - The general rules governing battery are applicable to a doctor-patient relationship. - Def’s honest and justifiable belief that the treatment was medically essential did not serve to relieve him from liability for the battery resulting from his intentional and unpermitted conduct - The right to refuse treatment is an inherent component of the supremacy of the patient’s right over his own body - The doctrine of informed consent has developed in the law as the primary means of protecting a patient’s right to control his medical treatment. Under the doctrine, no medical procedure may be undertaken without the patient’s consent, obtained after the patient has been provided with sufficient information to evacuate the risks and benefits of the proposed treatment and other available options - The emergency situation is an exception to the general rule requiring a patient’s prior consent. When immediate medical treatment is necessary to save the life or preserve the health of a person who, by reason of unconsciousness or extreme illness, is incapable of either giving or withholding consent, the doctor may proceed without the patient’s consent - The delivery of medical services is rendered lawful in such circumstances either on the rationale that the doctor has implied consent or (more accurately) that the doctor is privileged , by reason of necessity, in giving the aid and is not to be held liable for so doing - 3 requirements for the privilege : (1) the patient must be unconscious or without capacity to make a decision, while no one legally authorized to act as agent for the patient is available (2) time must be of the essence (3) under the circumstances, a reasonable person would consent - The facts of this case did not constitute an "emergency situation" exception. Pl’s decision to refuse blood in the present case was communicated to Def through her Jehovah's Witness card , which was a valid restriction on the emergency treatment that could be provided to her. There was no reason on the evidence not to regard this card as a valid advance directive, and so Def was liable for battery. Ratio: (Robins J.A.) - A doctor is not free to disregard a patient’s advance instructions any more than he would be free to disregard instructions given at the time of the emergency Class Notes: Marshall (Pl) v. Curry (Def) (CB 119) (patient – required a hernia operation) v. (surgeon) [1993 NS SC] Not a case of consent – emergency situation Facts: While performing an operation to fix the Pl’s hernia, the Def doctor without the knowledge or consent of the Pl removed the Pl’s left testicle. Torts: negligence in not informing patient of risk and assault. Doctor’s defence was that the removal of the testicle was a necessary part of the operation and that the necessity could not have been reasonably ascertained by diagnosis before any operation was begun Issue: Was the Def doctor liable for assault in removing the patient’s testicle during a hernia operation without his consent? NO Ratio: (Chisholm C.J.) – Propositions of law 1) That in the ordinary case where there is opportunity to obtain the consent of the patient it must be had. A person’s body must be held inviolate and immune from invasion by the surgeon’s knife, if an operation is not consented to. The rule applies not only to an operation but also to the case of mere examination

2) That such consent by the patient may be express or implied. If an operation is forbidden by the patient, consent is not to be implied. It must be constantly remembered that in this connection silence does not give consent, nor is compliance to be taken as consent 3) That consent may be implied from the conversation preceding an operation or from the antecedent circumstances. It is said that if a soldier goes into battle with a knowledge beforehand that surgeons attached to the army are charged with the care of the wounded, the consent of the patient may be implied. Class Notes: 2. Self-defence Self-defence: A person may, without liability, harm another person in order to protect himself from an actual or threatened attack. The right to use force to prevent harm or threat of harm. Self-defence is not just for yourself - person is entitled to defend family, employees - defending your property o before you can physically remove the trespasser, you have to ask them to leave unless they are using violence or there is an immediate threat - question is pets – are you entitled to defend your pet? Courts have held that yes, you can b/c huge value placed on pets - what about strangers? Raises question of rescue Cockcroft (Pl) v. Smith (Def) (CB 127) (run her fingers towards Def’s eyes) v (bit off one of Pl’s fingers) [1705 QB] Self-defence v revenge Issue: Was this an overreaction or was it reasonable as self-defence? OVERREACTION Ratio: (Holt C.J.) - If there is a delay (time for reflection) between the assault and a return assault, this is not self-defence; it is revenge - Being hit a little blow on the shoulder is not reason to draw a sword, and cut a hew the other - The defence must be reasonable and proportionate - Do have the right to self-defence but it must be measured Class Notes: 3. Defence of Property Defence of property: A person is permitted to use reasonable force to defend his or her property from wrongful interference. - Defence is most commonly raised where a property owner takes steps to physically eject a trespasser. Elements of the Defence 1) Amount of Force - The force used must be only sufficient to expel the trespasser and must not cause unnecessary injury

- If the trespasser initially entered the land lawfully , and his presence is peaceful, force cannot be used to eject the trespasser until he has first been asked to leave and has not done so [ Green v. Goddard ] - The rules are different if the trespasser used force to enter the property or has come there to commit a crime. In that case, there is no need to ask the trespasser to leave before force can be used to eject him [ Green v. Goddard ] 2) Reasonable Steps to Keep Out Trespassers - A property owner can take reasonable steps to keep trespassers off his property, but cannot deliberately harm trespassers in trying to keep them off. - A property owner may not set a deadly trap such as a spring gun [ Bird v Holbrook ] - While it is permissible for a property owner to protect his or her property with guard dogs or barbed wire fences, they must be designed to keep trespassers out, not to catch them after they have entered CB Notes: - Note 1  Def shot a robber (who was in the process of fleeing), court held Def could not do that through defence of property b/c robber was on his way out - So Def was no longer defending his property, he was taking over role of apprehension - Have been exceptions to this (including a case in Calgary) but Mahoney thinks that case was a bizarre result and it is better to follow this case in the Notes Green v. Goddard (CB 131) ( [1704 QB] Ratio : - If an individual enters another's property without the use of force , the property owner must ask the trespasser to depart before the owner can lay hands on the trespasser to turn him out; otherwise, the owner has committed an assault and battery - On the other hand, if an individual uses force to enter another's property , as in burglary, it is lawful for the owner to oppose the trespasser with force; no request for the trespasser to leave is necessary Bird (Def) v. Holbrook (Pl) (CB 132) (set a spring gun in the garden to protect tulips) v (climbed garden wall to rescue a stray fowl) [1828 Engl] Facts : Def occupied a garden bordered by walls, in which he grew rare and expensive tulips. As a result of some tulips being stolen, he set a spring gun in the garden, without any notice, at a distance from his house. Pl, while climbing over the garden wall in pursuit of a stray fowl, was shot. Def was found liable in damages. Issue: Even though Pl was a trespasser, is the owner liable for the intentional tort? YES Reasoning: - A person cannot do indirectly what he cannot do directly - The spring gun was not used for the purpose of deterring, but for the express purpose of doing injury, for, when asked to give notice, Def said, "If I give notice, I shall not catch him" - Pl was a trespasser, not a thief - If Def had been present when Pl trespassed, Def would not even have been legally authorised to take Pl into custody Ratio: A person cannot do indirectly what he or she cannot do directly. Pl. overreacted to the defence of property - should have at least posted a warning. Use of force was not reasonable in these circumstances Class Notes:

4. Necessity Necessity: Defence is raised where the Def committed a tort in order to prevent or remedy a situation of immediate danger. *Will be an objective test about whether there is dire need Elements of the Defence 1) Innocent Plaintiff - Pl is usually totally innocent; has done nothing intentional, provocative, or negligent. Pl has usually not participated in creation of danger - Different from self-defence or defence of 3 rd parties because the person whose interest is harmed is not an alleged wrongdoer, but someone who is innocent of responsibility in creating the dangerous situation 2) Imminent Peril - Defence would only excuse personal injury to the innocent Pl where the threatening harm is great and the injury to the innocent person is slight - Def is asking to be excused for his own intentional behaviour 3) Damages - Even where the defence is successfully raised, it is not certain that the Def will be totally relieved of all responsibility to pay damages tot he Pl. It may be that there will be a finding that the Def was justified, because of necessity, in committing the tort, but the Pl may still be entitled to damages Types of Necessity: 1) Public Necessity – where Def is arguing interference with person’s private rights for the public good; community interest – greatest good for greatest number. Ex: police who pushes someone to chase after a criminal [ Dwyer v. Staunton ] 2) Private necessity - In the case of great and imminent danger, in order to preserve life, the law will permit encroachment on private property. But must be limited somehow. Mere hunger and want is not defendable - lead to chaos Dwyer (Pl) v. Staunton (Def) (CB 134) (farmer) v. (trespassed through Pl’s farm b/c public road was impassable) [1974 AB] Public Necessity – public welfare trumps property law Facts : The public highway running past Pl’s farm was impassable because of snowdrifts. Employees of an oil company who were working in the area bulldozed the highway as far as possible towards the nearby town, but were unable to follow the road past Pl’s farm. Therefore, they bulldozed a path for about a quarter of a mile on Pl’s land, without his permission (but did have surface rights). Def, who lived nearby, attempted to drive on the path over Pl’s land, along with 4 or 5 other vehicles, but they were stopped by Pl. He finally let all of the vehicles through but warned them that he would stop them if they tried to return. Def inquired in town and discovered that the highway would not be opened that day and so he and the others tried to get home that evening on a different route. They could not, so they drove over Pl’s land and again were stopped by Pl at a gate. After some argument, Def drove his car through the barbed wire gate and the others followed. Pl brought an action for damages for trespass to his land. Issue: Did the Def, under the circumstances, have the right to leave the highway and proceed over the land of the Pl? YES Reasoning: - A traveler who is lawfully using a public road has the right to go upon private land at places where the public way is impassable, as long as no unnecessary damage is caused to the private land in so doing

- Def was, thus, within his legal rights in crossing Pl’s land in the circumstances; he did no unnecessary damage in using the land Ratio: (Sissons D.C.J.) - Regard for the public welfare is the highest law  If public road is impassable, one can use private lands, taking due care to do no unnecessary damage - Doctrine of necessity - interference with private property dictated and justified by the immediate urgency with a due regard for public safety and convenience - Private property rights to be respected but rights of public are higher rights Class Notes: Vincent (Resp/Pl) v. Lake Erie Transportation Ltd. (Appl/Def) (CB 136) (dock owner) v. (steamship owner that left boat tied at dock during a storm) [1910 SC of Minnesota] Private necessity - denied Facts: Def tied its steamship to a dock for the purpose of unloading its cargo. During the unloading a storm developed and continued to grow in violence throughout the night. Navigation was practically suspended until the second morning after the unloading. After Def finished unloading, a signal was sent for a tug to tow the steamship from the dock, but none could be obtained because of the severity of the storm. The lines holding the steamship to the dock were kept fast throughout the storm and replaced as they became damaged. The dock owners sued for damage caused by Def’s keeping its steamship tied to the dock throughout the storm. Def alleged that the wind was so strong after unloading the cargo that the crew was powerless to move the steamship. Issue: Was the Def entitled to invoke the defense of necessity? NO – appeal dismissed Reasoning: - If during the storm Def’s boat had entered the harbor and become disabled and thrown against the dock, the dock owner could not have recovered. Again, if while attempting to hold fast to the dock the lines had parted, without any negligence, and the boat was smashed against some other dock or boat in the harbor, there would be no liability upon Def - But here, it was found that those in charge of the steamship had deliberately and by their direct efforts held her in such a position that damage to the dock resulted. Having preserved the steamship at the expense of the dock , Def was held to be responsible to the dock's owners for the injury. - Public necessity, in times of war or peace, may require the taking of private property for public purposes but under the present system of jurisprudence, compensation must be made. - Distinguished other fact situations in which Def would not be liable for the damage. This is not a case where life or property was menaced by any object or thing belonging to the dock owner, the destruction of which became necessary to prevent the threatened disaster. Nor is it a case where, because of an act of God, or an unavoidable accident, the injury was beyond Def’s control. - Rather, the situation was one where Def prudently and advisedly availed itself of the property of another for the purpose of preserving its own more valuable property; as a result, the dock owners were found to be entitled to compensation for the injury done. Ratio: (O’Brien J.) - Where a Def prudently and advisedly avails itself of the Pl’s property for the purpose of preserving its own more valuable property, the Pl is entitled to compensation for the property damages done - Dissent would say it was mere inadvertent accident (act of God) that could not be avoided with due care Class Notes: Southwark London Borough Council (Resp/Pl) v. Williams and Anderson (Appl/Def) (CB 140)

(housing authority) v. (squatters) [1971 CA Engl] Private necessity - denied Facts: During a London housing crisis a group of squatters had taken up residence in a group of Council-owned houses. Although the Council had originally bought the buildings to house the homeless, these particular houses were empty while the Council waited for the money to demolish them and build better ones. At trial, the Council secured an order for possession of the homes, and the squatters appealed to the Court of Appeal. Issue: Can homelessness be a defence of necessity to trespass onto land? NO. A policy decision to prevent floodgate of homeless breaking into buildings. Reasoning: - If homelessness were once admitted as a defence to trespass, no one’s house would be safe. Necessity would open a door which no man could shut - It would not only be those in extreme need who would enter. There would be others who would imagine that they were in need, or would invent a need, so as to gain entry - The courts must, for the sake of law and order, take a firm stand Ratio: Courts must refuse to admit the plea of necessity to the hungry and the homeless, and trust that their distress will be relieved by the charitable and the good.