Tort Law

2. Factors Which Vitiate Consent: Duress, Fraud, MIstake and Public Policy
a) DURESS
Latter v Braddell[1880](CP)- majority held that yeilding to examination because of fear of force or being overpowered by violoence does not consitute consent, but minority argued that there is no distinction between consent and reluctant obedience.

b) FRAUD (DECEIT)
TEST: 1. defendant must be aware or respoinsible for plaintiffs misconception
2. fraud will only negate consent where it relates to the nature and quality of        the act (court has adopted a narrow view of teh nature of the act, while                  adopting a broad view of collateral matters so as to rarely vitiate consent) pg137
- deciet as to the harmful consequences of act raely vitiates consent (R v Lee, R v Ssenyonga, R v Currier) unless a duty of care can be established (Bell Ginsburg v Bell Ginsburg)

c) MISTAKE
- consent will only be vitiated when the P gave consent under a misapprehension for which the D is responsible. this is not the same as cases where the D mistakenly believes the P has constented

d) PUBLIC POLICY
- consent has been vitiated for these reasons in R v Jobidon, Norberg v Wynrib, M(k) v M(H)
e) BREACH OF FIDUCIARY DUTY
- concept of consent operates on ass’n of individual autonomy, miust be free, full and           informed
- where there is exploitation of a pos’n of poewr or trust, consent will be vitiated
-Test to det. if fiduciary rel’n exists: 1) is there an inequality between the two parties?
2) is this inequality being exploited?
3) vulnerabilty on behalf of one party must be                          shown

Norberg v Wynrib[1992](SCC)- concerned doctor who continued hte percription hius drug dependent patient in return for sex- held liable for battery, consent vitiated due to doctors exploitation of power imbalance, two judges held breach of fiduciary duty was independant of both tort and contract, one justice held D liable for breaching accepted standards of medical practise
M(K) v M(H)[1989](BC CA)-Ps consent to father sexual advances negated b/c of breach of fiduciary duty. (esp reprehensible nature of conduct led to punitive damages?)

3. Consent to Criminal or Immoral Acts

Ex Turpi Causa Non Oritur Actio: a person cannot recover in tort law for the consequences of his/her own immoral or illegal conduct
- application has been narrow and limited in Cda due to considerable disagreement about purpose of doctrine - prot’n of integrity of legal system? or prevent an award of damages from whcih P would profit for illegal behaviour?

Protection of Privacy
- difft’y in determining how to frame action(is case by case approach best way to proceed?)
a) IS THERE A COMMON LAW TORT ACTION FOR THE INVASION OF PRIVACY?
Motherwell v Motherwell[1976](Alta CA)- attempt to create new catagory of nuicance, but limited by stare decisis. Rely upon Clerk v Lindell, “A nuicance of this kind, to be actionable, must be such as to be a real interference with the comfort or convenience of living according to  the standards of the average man”- in this case P was being harrassed over hte telephone

b)A NOTE ON THE COMMON LAW ACTiON FOR THE BREACH OF CONFIDENCE
action still evolving in Canada, but based on equitable principle that a trustee or fiduciary may not profit from a relationdship w/ his principle. Was limited to commercial situations, but moving into personal sphere.
Elements:1)info must have a qualoity of confidence
2)info must have been impartrd in circs creating an obligation of confidence
3)unauthoirzed use of the info must have been detrimental to the confider
Analysis first used in LAC Minerals Ltd v International Corona Resources Ltd [1989](SCC)..extended into sit’ns of personal liability

C) THE STATUTORY PROTECTION OF PRIVACY
The Privacy Act Mabitoba

10. The Common Law Tort of Discrimination
- pre Charter- no common law recognitoin granted Bhaduria v Seneca College

III THE DEFENCE OF CONSENT
1. General Principles of Consent
- must be framed specifically in terms of tort action at issue
- defendant bears burden of proof
- may be given either implicitly or explicitly, but must be free and full

a) IMPLIED CONSENT
- generally applies to sporting context: consent to ordinary risks of sport in which one is         engaged
- prinicple of Violenti no fit injuria applies- a man cannot complain of harm to the chances of which he has exposed himself w/ knowledge and his free will.
Rule: ” …combatants consent to take the ordinary risks of the sport in whcih they engage…but only while the play is fair, and according to rules, and the blows are given in sport and not maliciously…if theses tacit conditions of fair play and good temper are not kept the consent is at an end, and the parties are remitted to their rights.” Wright v MacLean[1956](BC SC)- boys throwing lumps of mud at each other, no il will or malice, engaged in game to whcih risks where known…therefore absent a finding of negligence, no liability

b) EXCEEDING CONSENT

Agar v Canning[1965](MB QB)- injuries inflicted in circumstances which show a definate resolve to casue serious harm to another, even where there is provocation and in the heat of the game should not fall w/n the scope of implied consent–case result of injuries which arose out of a hockey match

c) COMPETENCY TO CONSENT
- in order be valid person giving consent must be capable of appreciating the the nature and quality of the act to which it applies…abiliy to understand the act at issue

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.

2. Related Issues: Mistake, Motive and Accident

a) MOTIVE- desire to bring about a certain result, not reason for wanting that result to occur, must establish blameworthy motive but not an element in COA,

i) DURESS- will negate neither volition nor intent, but will be a fcator in assesing damages Gilbert v Stone[1648](KB) D stole gelding under threat of armed men, but this did not relieve him of liabilty(would though have claim in assault)

ii) PROVOCATION- must be immediate and directed in such a manner as to cause the D to lose lose his power of self control through the enflaming of sudden and uncontrolled passions (Test one of reasonable person) Miska v Sivec[1959](Ont CA)-no defence in provocation as too much time elapsed between time D was threatned on the road, and the time he got home and fired a gun at P
- uesful in assesing damagages and can argue as constituting contributory negligence on part or P

b) MISTAKE- occurs when D intends consequences of his act, but these consequences have a diff’t factual or legal significane than that which was contemplated. Not a recognised defence per se
MISTAKE OF LAW - missapprehension as to illegality of act being carried out, Hodgkinson v Martin[1928](CA)- defendant believed he was justified at law in his actions Again, no defence but will come into play re assesment of damages
MISTAKE OF FACT- missunderstanding of an aspect or attribute about what sthg is, Ranson v Kitner[1888](Ill CA) D’d hunting for wolves, accidentally killed dog, liable for value of dog.

c) ACCIDENT- D unitientionally and w/o negligence injures P, distinguish form mitake on this point, no libilty in either intentioanl tort, or negligence

d) A NOTE ON THE LIABILTY OF CHILDREN AND THE MENTALLY ILL
- governed by same principles of liabilty as others, but courts have tended to frame issue as whether defndant appreciated nature and quality of act. No vicarious libilty for parents or guardians

4. Battery
DEFINITION: intentional infliction upon the body of another of a harmful or offensive contanct
ISSUE:  can an intentional wrongdoer be liable for consequences which he did not intend? Yes. (Shall be no importation of forseeability into intentional torts)  Bettel v Yim[1978](Ont Co Ct)- shopkeeper grabs and shakes child with w/ intention of bringing about harmful contact for the purpose of extracting a confession, in the course of action he he hit the plaintiff in the nose cuasing it to bleed.- In finding for P, court differentiates between intentional torts and negligence “…it is in the dignitary interest, the right of the P to insist that the D keep his hands to himself…if physical contact was intended, the fact that its magnitude exceeded all reasonable or expectations should make no difference.” TEST : WHETHER THE DEFENDANT WAS  GUILTY OF DELIBERATE, INTENTIONAL AND UNLAWFUL VIOLENCE OR THREATS OF VIOLENCE. IF HE WAS AND A MORE SERIOUS HARM BEFALLS THE PLAINTIFF THAN WAS INTENDED BY THE DEFENDANT, THE DEFENDANT, NOT THE INNOCENT PLAINTIFF MUST BEAR THE BURDEN OF RESPONSIBILITY.

Defenses: self defense, defense of 3rd party, defense of property,consent, capacity, ex turpi causa

5. Assault
DEFINITON: intentional creation in the mind of another of a reasonable apprehension of immediate physical contact (recent focus upon impression created in P’s mind) words alone not enough (unless create reasonable apprehension…) defendant must have means to effectuate threat

- damages for assault unaccompanied by battery tend to be small - if assault is prelude to battery may only be disscussed superficially

TEST: WHETHER AN OBJECTIVELY REASONABLE PERSON IN SAME SITUATION WOULD PERCIEVE THREAT OF IMMINENT HARMFUL CONTACT

Holcombe v Whitiker[1975](Ala SC)- words alone cannot constitute assault, but coupled w/ beating down door and trying to open it, they can: Question: whether accused has means to carry out threat, if yes: Assault.

Police v Greaves[1964](NZ CA)- threat against police officers investigating sit’n of domestic violence found to be real: charge of assault restored.

Defenses: consent, self defense, possibilty of provocation

+I  AN INTRODUCTION TO THE LAW OF TORTS

1. The Concept of Torts
Tort law is the field of law which recognises and recompenses injuries inflicted upon a     persons body, dignity and privacy, to a person’s property or proprietary interests ina     business. Torts are civil wrongs in which the injured party (or parties as in a class     action) sues the wrongdoer(tortfeasor) for damages to compensate for the infury     suffered or seeks an injunciton to prevent an injury or wrong from continuing. The     injured party must prove that the tortfeasor committed the wrong on a balance of     probabilities. Obligations in tort are imposed as a matter of law.

2. Tresspass and the Case
should action be framed as trespass vi et armis or case? (differentiate between direct     immediate injuries and consequential ones)
Scott v Shepard[1558-1774] All ER- (lighted squib) he who does the first wrong is answerable for all the consequential damages
Leame v. Bray[1803](KB)- ( collission of carriages- result of negligence or tresspass?) whether or not there is intent to harm is immaterial, that injurious act was the result of immediate application of force is enough to consitiute trespass
Williams v Holland[1833](CP)- gave P choice between tresspass and case when there was a direct negligent act - where injury is caused by nrgligence can be framed as action on the case even when injury is result of direct harm- easier to show negligence than direct chain of events
Holmes v. Mather[1875](Exch)-if awrongful act as a result of direct force whether intentional or a result of negligence does an injury, the remedy is tresspass, if the act is not wrongful for either of these reasons no action is maintainable- act must be wrongful to be actionable!! limits framing action in case
Cook v. Lewis[1951](SCC)-onus rests upon D to establish absense of intention and negligence when injury is the result of the direct application of force(Stanley v Powell)

3.The Basis of Imposing Liablity in Tort Law
OBJECTIVE
1. Absolute Liabililty: D held liable if his conduct casues P’s loss- essential issue is             causation not fault
2. Strict Liabilty: liability w/o intent or negligence, w/ focus on defect and causal              connection
3. Negligence: failure to take reasonable care to prevent forseeable harm to others         (special rules of proof)
SUBJECTIVE
4. Intentionally Inflicted Harm: i)express
ii)implied/imputed/constructive
iii)transferred(for directly casued injuries) as well as                             assault, battery, tresspass to land and                             chattels, false imprisionment

II INTENTIONAL INTERFERENCE WITH THE PERSON

1. Basic Principles of Liability

DEFENDANT WILL ONLY BE HELD LIABLE IF HIS CONDUCT IS BOTH VOLUNTARY AND INTENTIONAL

a) VOLITION
-conduct must be voluntary and conducted by a concious mind: ability to appreciate the     nature and quality of ones actions, not whether conduct is right or wrong
Smith v Stone[1657](KB) “…that it is the trespasse of the party that carried the defendant upon the land, and not the trespasse of the defendant”

b) INTENT
- desire by actor to bring about certain consequences or results, rather than desire to do     act itself, intent need not be hostile - proof of intent does not automatically mean     liabilty
-means of imposing liability for unintended consequences:
i) IMPUTED (CONSTRUCTIVE)
- where consequences are subjectively unintended, but were sunbstantially certain, or     reasonably probable to result from D’s actions
ii) TRANSFERED
- where D has intent to harm one person, but actually harms another, or has the intent to     commit one type of tort, but actually commits another

Note- as the law of negligence developed, these catagories became less important to use, but they are advantagous to the P becasue when pleading in tresspass the onus of proof is shifted to the defendant.