APSC 450 TORT LAW

Gregory S. Miller, P.Eng., LLB

Lindsay Kenney

Torts
Latin, meaning twisted or crooked Covers area of civil wrongs Mostly judge-made (common law) judge Primary Objective compensation Secondary Objective - deterrence

Lindsay Kenney

from the Latin tortus, meaning twisted or crooked; morphed through French into English as wrong; tort law is concerned with civil wrongs as opposed to criminal wrongs; civil - citizen v. citizen; criminal - state v. citizen; entirely judge-made (almost); primary objective of tort law is compensation for injuries; secondary objective is deterrence (punitive damages);

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Development of Tort Law

Writ of Trespass
13th C Responded to direct application of force Became the intentional torts Actionable Per Se no proof of damage 14th C Responded to indirect application of force Became the unintentional torts Damage must be proven

Writ of Trespass on the Case

Lindsay Kenney

Writ of Trespass: arose in 13th century as remedy for obvious forcible wrongs, the type of wrongs which would provoke retaliation - breach of the kings peace; elements of trespass were force and direct and immediate injury to person, lands or goods; actionable per se (without proof of damage); defendant has to raise issue of excuse or justification; roughly became the intentional torts; trespass to person became: assault; battery; false imprisonment; original fine and imprisonment were gradually eliminated, leaving damages; Writ of Trespass on the case: arose during the 14th century for those situations which didnt necessarily involve force and direct damage; plaintiff has to prove wrongful intent or negligence and damage; became negligence example of the distinction between trespass and case: A throws log over fence and hits B - trespass; log doesnt hit B, but he trips over it later - case;

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Bases of Liability
Intention Negligence Strict Liability

Lindsay Kenney

intention foresight & desire of consequences (intention); foresight of probability but no desire (recklessness); requires volition (conscious choice); mistake doesnt negate; youth/mental disability will negate; negligence: not a state of mind; conduct measured against reasonable person; strict liability: simple causal connection between act and injury; applies only to ultra-hazardous activities;

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Intentional Torts
Battery Assault False Imprisonment Defamation

Lindsay Kenney

Battery
Intentional harmful or offensive contact with another Actionable Per Se Intention relates to touching, not harm

Lindsay Kenney

battery = intentional harmful or offensive contact with another, whether direct or indirect; co-existent with criminal sanction; protection of bodily security is the obvious goal; avoiding societal chaos is another goal (avoiding eye for an eye conduct); proof of actual harm is not required - the touching itself is sufficient; not necessary for skin to be touched: clothing being worn; object being carried; horse being ridden; intention relates to the touching, not the harm; provocation is not an excuse: victim need not even be aware of the touching at the time; as when asleep or under anesthetic; as when a child doesnt realize what is happening;

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Assault
Intentional creation of apprehension of imminent battery Actionable Per Se Reasonable belief of victim is sufficient

Lindsay Kenney

assault = intentional creation of apprehension of imminent battery; protection of freedom from fear of interference with bodily security; actionable without proof of damage (actionable per se); need proximity in space and time: telephone threats may not be sufficiently proximate in space; I will beat you next week may not be sufficiently proximate in time; the actual intention of the defendant to use violence need not be proven, as the plaintiff need only reasonably believe that he is in danger of violence; doesnt extent to a third party: telling Bob that I will beat Joe isnt sufficient;

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False Imprisonment
Intentional wrongful confinement of another person within fixed boundaries Actionable Per Se Must be complete confinement Applies to everyone (incl. police) Police have statutory protection

Lindsay Kenney

false imprisonment = intentional wrongful confinement of another person within fixed boundaries; protects freedom of movement; actionable without proof of damage (actionable per se); must be complete confinement: not complete if reasonable mode of egress known to victim; victim need not be aware of the confinement at the time: for example, a child who may not be aware; available against government officials; police, prosecutors; Police are shielded from honest mistake by S.25 Crim code if reasonable and probable grounds: if find committing summary offence; if reasonable and probable grounds that has, is, or about to commit indictable offence; must state grounds for arrest unless too obvious or fleeing; ultimate charge does not have to be arresting charge; if arrest required, give police the information and let them use their discretion - dont want police acting as your agent because you dont have same protections;

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Defamation
A false statement about a person to his/her discredit Publication to third person required Truth is defence Libel written / recorded

Actionable Per Se

Slander oral
Proof of damage required

Lindsay Kenney

a false statement about a man to his discredit; can be caused by referring to someone as a liar, crook, drunk, traitor; standard: what ordinary decent folk in the community, taken in general would feel; interpretation: natural and ordinary meaning: particular characteristic or activity may yield defamatory meaning; calling unionist a scab might be defamatory, manager not; the time and place of the publication may make a difference; calling someone a communist during the McCarthy era; the form of the communication: words: actions eg. defamation by drawing; who may be defamed: living people; non-natural persons: corporations, partnerships; professional associations; municipal corporation; school board; trade union; defamation must be communicated to a third person for it to be actionable; every participant in the publication is liable - those who prepared the libel and those who distributed and disseminated the libel; publication takes place when the words complained of are heard or read;

apology: publication of a full apology at the earliest opportunity is a means of mitigating the damages; Defences justification: truth is a complete answer to an action for defamation, falsity presumed; absolute privilege: The smooth functioning of society requires that full and frank statements be made at certain times without fear of prosecution for defamation. Such occasions are: judicial proceedings; parliamentary proceedings; executive communications; covers ministers of the Crown; may not cover civil servants; does extend to spousal communications; qualified privilege: conditional immunity attaching to certain occasions if the otherwise defamatory statements are made without malice; four main types of occasions: protection of ones own interest: akin to self-defence; must be limited to that reasonably necessary to respond to the original attack; common interest or mutual concern: moral or legal duty to protect anothers interest: eg comments made by a father to a daughter concerning the daughters prospective husband; public interest: eg members of the public in reporting crimes to the police; malice: will defeat the claim of qualified privilege; will affect the assessment of damages;

the plaintiff must prove malice once a claim of privilege has been accepted by the judge; ill-will or indirect motive; excess of privilege: if the words are clearly outside the scope of the privilege, liability will attach;

Unintentional Torts
Strict Liability Negligence Nuisance

Lindsay Kenney

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Strict Liability

The person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril; and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape

Lindsay Kenney

Rylands v. Fletcher The person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril; and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the Plaintiffs default; or perhaps, that the escape was the consequence of vis major, or the act of God the theory has been held not to apply to: overflow of domestic hot water heater; overflow of home plumbing systems; overflow from a sprinkler system; fire used for domestic purposes; the theory has been held to apply to: over flow of water industrial and commercial uses; fire used for industrial or commercial purposes; fire used in unusual ways: to thaw frozen pipes; to smoke out a rat; poisonous fumes from a fumigation activity;

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Negligence

ABC Rule
Duty of care exists There has been a breach of that duty Damage has resulted from the breach

Lindsay Kenney

Duty how does a Court decide, in a particular case, whether a duty is owed by the defendant to the plaintiff? The Court looks to the neighbour principle from Donoghue v. Stevenson; The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyers question, Who is my neighbour? Receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. BC v. RBO Architecture [1994] B.C.J. No. 1297 Architect engaged by owner to provide design Engineer engaged by architect to provide subconsulting Engineer (and its employees) can be liable to owner in tort

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Dha v. Ozdoba [1991] B.C.J. No. 303 Engineer is liable to employer for competence of design Municipality may also be liable (to employer) for approval of plans Sergius v. Janax Design & Drafting Services Ltd. [1992] B.C.J. No. 302 Sergius purchased a house with a defective foundation This was a pure economic loss for which no duty of care was owed by the foundation engineer Cooper v. Hobart 2001 SCC 79 A duty of care requires both foreseeability of damage and proximity Fiduciary duty is different (see Landview Construction v. Simic Engineering [1994] B.C.J. No. 113) the 3 criteria which must be met in order for a fiduciary relationship to exist: 1. 2. 3. Fiduciary has the scope to exercise discretion or power; Fiduciary can unilaterally exercise that power so as to affect the beneficiarys interests; Beneficiary is peculiarly vulnerable to the fiduciary holding that power.

Typically applies to: Lawyers; Trustees; Physicians; Spiritual advisors; Etc.

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Breach to determine b, one must first ascertain the nature and quality of the duty owed - this is the standard of care; the standard of care is set by law objectively: what would the reasonable person have done? some subjectivity in recognition that children, mentally disabled, professionals, etc. may owe a different amount of care (a different standard of care); experts/professionals: the reasonable person test is modified to the person of average competence exercising a particular calling; every recognized professional group has its own individual standard to which all members of the profession must conform; specialists may be required to conform to the standard of like specialists; Hilton Canada Inc. v. S.N.C. Lavalin Inc. [1999] N.S.J. No. 188 the engineer inspected a structure prior to purchase and concluded that no major structural defects existed; corrosion of the steel beams supporting the structure discovered later; an engineering firm can be liable for the acts of its non-professional employees if the standard of structural engineers is not met; if the standard of care at the time of the inspection was such that the corrosion might not have been found, there is no breach;

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White Rock Lodge Properties v. BC Hydro [1993] B.C.J. No. 515 geotechnical engineers did not identify a weak, thin layer of clay in the foundation soils; A slide, thought to be the result of this layer, caused damage and delay in the construction of a condominium; No breach of duty, because it couldnt be shown that average geotechnical engineers would have identified;

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Causation the but for (also called the sine qua non) test is the most common means of determining causation-in-fact: but for the negligence of the defendant, the damage would not have occurred; Metropolitan Toronto Condominium Corp. No. 902 v. Macklingate Development Inc. [1998] O.J. No. 6229 Defendant may have breached Building Code in the installation of fireplaces in condominiums Such a breach is not conclusive of connection with damage, so negligence not proven Stanco Projects v. British Columbia 2006 BCCA 246 Tendering case Engineer breached law of tendering by bid shopping BC (Engineers client) liable to contractor for such Engineer liable to client Mustapha v. Culligan 2008 SCC 27 Not an engineering case Culligan supplied water bottle containing fly Plaintiff suffered psychological injury from seeing fly No liability unless a person of ordinary fortitude would suffer multiple causes; can cause problems for the but for test: if two or more parties set independent fires which then engulf the plaintiffs house, each could say that the result would have occurred without their conduct;

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the substantial factor test: if the acts of two people are both substantial factors in bringing about the result, then liability is imposed on both;

Two Negligent Defendants (Onus): where two defendants have acted negligently and one only has caused a loss to the plaintiff, but the plaintiff is unable to prove which caused the loss, both will be considered to have caused the loss unless one can exculpate himself; this principle does not apply where the plaintiff has been contributorily negligent;

Nuisance
The unreasonable interference with the use and enjoyment of land by its occupier Unreasonable guaged by:

Type and severity of harm Character of locale Abnormal sensitivity Utility of conduct

Lindsay Kenney

in the most general terms, nuisance involves the unreasonable interference with the use and enjoyment of land by its occupier or some right by the public; damage must be proven; damage is typically indirect, in the sense that it does not arise from the direct application of force; the focus of the tort of nuisance is the type of harm that is suffered, rather than some narrow form of prohibitive conduct; liability flows to those who create the nuisance or allow it to continue.

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HEY, BE CAREFUL OUT THERE!

Lindsay Kenney