6. False Imprisonment
DEFINITON: total intentional restraint upon the movement of one person by another, restraint may be by barrier, other physical means, implicit or explicit threat of force, or assertion of legal authority
ELEMENTS: 1) Voluntary
2)Intention: actual, implied, or transferred
3)Fixed Boundaries: must be w/o any reasonable means of escape(need total confinement whihc is incomplete if other knows of another route)Bird v Jones[1845](QB)- where there is only an obstruciton musr be accomp by menace, force, or threat of force—but strong dissent from Denman ” as long as I am prevented from doing what I have a right to do, of wht impt’ce is it that I am permitted to do sthg else?”
4)Knowledge- necessity in Cda is ambiguous
- an individual may be liable in false imprisionment not only for restraining P, but for ordering someone else to do so.
Campbell v Kresge Co.[1976](NS TD)- rejection of defense of legal authority- D had no reason to ask the P to come inside the store for questioning, just b/c she went of her own volition is of no impt’ce(she didn’t believe she had a choice)
Herd v Werdale Steel Coal and Coke Co.[1915](HL)- won’t allow miner to come up fro underground. “…when a man goes down a mine, from which access to the surface does not exist in the absense of special facilities given on the part of the owner of the mine, he is only entitled to the use of these facilities on the terms on which he has entered……the end of his shift” To est. false impriosionment must be deprived of a right
Defenses: consent, legal authority
7. Malicous Prosecution
DEFINITON: means of proividing redress for unjustified interference w/ individual freedom and the embarassment , injury to reputation, and other losses that flow from it. Concerened primarlily w/ indirect interferences, specifically those resulting from improper insitution of criminal proceedings against an individual
ELEMENTS: 1) the proceedings must have been initiated by the defendant
2) the proceedings must have terminated in favour of the plaintiff
3) the absence of resaonable and probable cause “an honest belief in the guilt of the accused based upon a full conviction, founded on reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.” Hicks v Faulkner(1881)
4) malice, “wider meaning than spite, ill will or a spirit of vengeance, and includes any other improper purpose, such as to gain a private collateral advantage” (Flemming)or a primary purpose other than carrying the law into effect
- P must proove that s/he has suffered a loss or damage
- D can be held liable not only for wrongful intitation of charge, but also wrongful continuation
- limited almost exclusively to penal matters
Nelles v. Ontario[1989](SCC)-nurse charged w/ murder of four babies at TO hospital- determination that Attorney General and Crown Attorneys do not have the protection of absolute immunity as this this threatens the rights of individual citizens who have been malicously prosecuted.
8. Intentional Infliction of Nervous Shock
- based on principle of take your victim as you find him…should be no separation of physical and psychological injury
- when framed as intentional tort, focus is upon proving intent to harm (forseeabilty of injury is irellenvant)
Wilkinson v Downton[1897](QB)- recognition of new catagory of innominate intentional torts, infliction of nervous shock in absence of physical harm is actionable “[Where] the defendant…has wilfully done an act calculated to cause physical harm to the plaintiff - that is to say, to infringe her legal right to safety, & has in fact thereby casued physical harm to her. That proposition w/o more appears to me to state a good cause of action, there being no justificaiton for alleged for the act.”
Radovskis v Tomm[1957](Man QB)-only where there is pyschiatric evidence that real illness has resulted will defendant be held liable. Articulation of limitation “in every case the question is whether the shock and the illness were in fact natural or direct consequences of the wrongful act or default; if they were, the illness, not shock, furnishes the measureable damages”
Samms v Eccles[1961](Utah SC)- recognition of tort for infliction of emotional distress in absense of bodily impact or physical harm where “defendant intentioanlly engaged in some conduct towards the plaintiff, a)w/ the purpose of inflicting emoitonal distress, or, b) where any reasonable person would have known that such would result; and his actions are of such a nature as to be considered outrageuos and intolerable int hat they offend against he generally accepted standards of decency and morality.”
Page v Smith[1995](HL)- distinguish btwn infliction of nervous shcok as an intentional tort, and as the reuslt of negligence: where D can reasonably forsee that his conduct will expose the P to a risk of personal injury he comes under a duty of care to that P. D of C extends to liabilty for damages for nerovus shcok only if shock results in some form of legally recognized interest. By treating nervous shcok as a damages arising out of tort of negligence, scope of liabilty is greater than that of intentional tort, (fpcus upon remoteness of damage and forseeabilty as opposed to intent to harm”
Timmerman v. Beulow[1984](Ont HC)- damages are recoverable in nervous shock for recognizable psychiatric disorders, but not for stress, strain or emotional upset.
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