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Introduction to the Law of Torts

The word tort is derived from the Latin word torquere, which means twisted or crooked. At its most basic, wecan say that torts is the area of law that deals with wrongdoing. Tort law is about conduct and consequences.

Conduct such as: ntention ! consequences are desired

"egligence ! creating a reasonably foreseeable and substantial risk of its consequences

Accident ! no desire for consequences nor creates a foreseeable and substantial risk of consequences#strict liability e$tends liability to accidental conduct%

Objectives of Tort Law

&oralist 'iewo (ystem of corrective )ustice based on ethical *rinci*le of *ersonal res*onsibility for damage

caused by wrongdoingo +eflection and embodiment of intuitively ethical and moral *rinci*les

nstrumentalist 'iewo om*ensationo -unishmento eterrence

(*ecific

An as*ect of *unitive function of tort law

eters the individual defendant /eneral

&arket

&ost a**licable to manufacture of goods and the commercial su**ly of services

onsumers will buy goods that are safer and chea*ero -sychological dimensionso 0ducationo 1mbudsman role

efendant

But: The main *roblem with this definition is that it doesnt *rovide us with a clear way odistinguishing torts from other areas of law that are also concerned with wrongdoing. (im*lysaying that torts is concerned with wrongdoing is not enough.

-erha*s a better way to start is by focusing on the distinction between public and privatewrongs. According to this a**roach, in contrast to the criminal law! which is concerned with*ublic wrongs #that is, wrongs against society as a whole% ! tort lawis concerned with *rivatewrongs #that is, wrongs against a *articular individual%. f we take this a**roach ! based on thedistinction between *ublic and *rivate wrongs ! then we can define tort law as that area of lawthat is concerned with the rights and remedies associated with legal relationshipsbetween individuals.

What is wrong with this definition of torts?

Although it does hel* to distinguish torts from criminal law, the definition fails to take intoaccount a number of key as*ects of the law of torts.

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or e!ample" A great deal of torts is concerned with what is referred to as strict liability! that is, situations where liability is im*osed in the absence of a *riorrelationshi* between the *arties or any wrongdoing on the *art of thedefendant.

#o" Where does this leave us? $ow do we define torts?

Can identify three ways in which we can deal with the problems ofdening torts:

%&' efine torts in terms of the areas of law that are recognised by the courts as constituting torts. That is,torts is the area of law that deals with the various to*ics that are listed on your syllabus ! such as theintentional torts, negligence etc. ! which have historically been recognised by the courts as constitutingthe law of torts.

%(' efine torts as the area of law concerned with *rivate wrongs other than those arising out of contract.

%)' efine torts in terms of its aims and ob)ectives ! i.e. torts is the area of law concerned withcom*ensating *laintiffs for the *rivate wrongs committed against them by other individuals.

The dierence between torts and criminal Law

According to Osbornethere are threemain differences:

%&' The main function of the criminal law is to punish those who have committed offences under theriminal ode. n contrast, the aim of tort law is to ensure that those who have suffered in)ury ordamage are compensatedfor their losses.

*ow" According to Osbourne, *unishment is designed to *revent a re*eat offence by the defendantand to deter other citi3ens from similar antisocial conduct.

"ote that this is only partiall+true ! criminal *unishment is not always about deterrence, butcan also be based on retributive*rinci*les #that is, *unishing *eo*le *urely because what theyhave done is wrong% or for reasons of restitution#that is, to re4assert the rights of the victim%.

%(' The criminal )ustice system e$ists to *rotect and re*resent the communit+at large, whereas tort lawe$ists to *rotect the interest of individualclaimants. "ote that this difference in em*hasis is mainlyreflected in terms of who brings the *rosecution 5 action in a given case:

riminal *rosecutions are brought by the state

Tort actions are brought by the person who suffers the loss

%)' The standard of proofis higher in the criminal law. n criminal law, the *rosecutor must establish theguilt of the accused be+ond a reasonable doubt, whereas in torts the *laintiff only has to *rove thecase on the balance of probabilities.

The dierence between torts and contract

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A great deal has been written on the relationshi* between contract law and torts, but it is *ossible to identify anumber of key differences:

%&' The source of primar+ obligations

1bligations in tort are im*osed on the basis of circumstances. 7or e$am*le, a motorist owes a duty ofcare to all *edestrians, even if the motorist never agreed to take care or is unaware of the duty.

,n contrast"ontractual obligations are generally im*osed on the partiesb+ themselves.

%(' The notion of privit+

8ecause law im*oses tort obligations, they a**ly even if the *arties do not know each other.

n contrast: 8ecause contractual obligations are voluntaril+ created by the *arties, theienforcement is sub)ect to the doctrine of privit+! that is, only the *arties to the agreement can sueor be sued if that agreement is broken.

%)' The purpose of compensation

"1T0: The defendants must be worth suing such as *eo*le5institutions with liability insurance, large

cor*orations5government institutions or the government. 'icarious liability.

8ecause tortobligations are im*osed in order to *revent harm and *rotect an e$isting state of affairscom*ensation is torts is bac-ward loo-ing! that is, it aims to restore the *arties to the *osition they werein before the wrong was committed.

n contrast: n contract, agreements are entered into with the intention of bringing about a stateof affairs in the future, and as a result com*ensation is forward loo-ing! that is, it aims to butthe *arties in the *osition they would have been if the contract was *erformed.

*ow" 1n the surface, it may a**ear as if the difference between tort and contract is fairly obvious ! that is, in

the case of a contract the relationshi* between the *arties is defined by a *rior agreement, whereas intorts there is no such formal relationshi*

n one sense, this is right. 9owever, the waters get a little muddier when you start to think aboutimplied contractual terms#in contract law% and duties of carein negligence #within tort law%.

or e!ample"n some cases, the courts will im*ly terms into contracts, and therefore in effectim*ose an obligation on an individual to behave in a certain way

om*are this with the situation in negligence, where the courts will sometimes say thatan individual owes a duty of care to another *erson in a *articular set of circumstances,even if there is not *rior relationshi* between the two *arties.

Arguably, in both cases the wrong com*lained of arises out of an obligationthat has been imposed b+ thelaw, inde*endent of any relationshi* that may or may not e$ist between the *arties.

f we think that the main difference between torts and contract is based on the idea of *rior agreement, then itis easy to see how this distinction start to break down in certain situations.

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The Foundations and Objecties of Tort Law

7ocus of this lecture is the various arguments about the *ur*ose of torts. Asking the questions: Wh+ do wehave torts? What is it that the law of torts sets out to do?

1ne way to a**roach this question is to begin with a descriptive accountof the functions of tort law #that is,look at the aims tort law *ursues and what tort law does in *ractice% before then moving on to a normative

accountof the functions of tort law #that is, look at the aims tort law could *ursue and what tort law should doin *ractice%

!escriptie "ccount

Taking a descri*tive a**roach, we can identify a number of aims and ob)ectives within the law of torts:

#$% Compensation

o To create stability and *redictability for victims and also *eo*le in societyo Allows individuals to organi3e their own behaviour accordingly to avoid liabilityo "ot have to fear for others wrong actions and being left uncom*ensatedo +eturn the *erson back to the original *osition as if the tort hasnt occurredo BTthis will mean we should only sue *eo*le with dee* *ockets or insurance

e. Tort systems *rovide ;>=o om*ensation does not s*eak of the underlying inequalities between the *arties #distributive

justice%o +awls on distributive )ustice

?hat would the society look like@ magine yourself in a room and your *osition in a society will be randomly allocated

when you walk out of the roomAccording to Osbourne, the most im*ortant function of tort law is to *rovide com*ensation for lossescaused by conduct that the courts regard as having fallen below acce*table standards.

/e+" entral to the notion of com*ensation is the idea that tort law should aim to restorethe *laintifto the *osition that he would have been in if the tort had not been committed.

0esult: om*ensation is tailored to the *articular loss that the individual *laintiff hassuffered, and seeks to *rovide a full indemnity for the *laintiffs losses.

Although we can argue that society has a legitimate interest in minimi3ing the disru*tion caused byin)uries to individuals #i.e. society functions better if *eo*le are com*ensated for their in)uries and arefree to continue contributing%, we can also argue that the commitment to com*ensation is reflective of abroader commitment to what is often referred to as corrective justice.

According to 1ules Coleman, corrective )ustice views tort law as a system of first4 and second4order duties:

%&' uties of the first order are duties not to injure.These duties establish norms of conduct.

%(' uties of the second order are duties of repair.

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These duties arise u*on the breach of first4order duties. That second4order duties soarise follows from theprinciple of corrective justice, which says that an individual hasa duty to re*air the wrongful losses that his conduct causes.

*ote: 7or a loss to be wrongful in the relevant sense, the wrongdoer does noneed to be morally to blame. The loss is only incident to the violation ofthe victims right not to be injured B a right correlative to thewrongdoers first2order dut+ not to injure.

#&% 'unishment

This is the idea that one of the main functions of tort law is to e$*ress societys disa**roval of theconduct of wrongdoers who cause harm to other citi3ens. #retributive )ustice: *unishing for the fact thatthe act was wrong, very good su**ort for criminal laws%. 9olds *eo*le accountable for their actions andmaking right choices. The key is whether they had control in committing the wrong.

According to Osbourne, an award of damages is not only designed to com*ensate the *laintiff,but also acts as a sanctionon the defendant.

#(% !eterrence

This is the idea that one of the functions of tort law is to influence the conduct of citi3ens, with a view to*romoting certain social goals #such as *ublic safety%

*ote" Torts generally seeks to influence behaviour through three main forms of deterrence: s*ecificdeterrence, general deterrence, and market deterrence:

i' #pecific 3eterrence! The law aims at changing the behaviour of the defendant who isthe sub)ect of the *articular tort action.

ii' 4eneral 3eterrence! The law aims to change the behaviour of a class of *otentialdefendants, with a view to *reventing future harms. 7or e$am*le, decisions in relation tomedical negligence frequently aim to send a message to the *rofession as a wholeabout the standards of care and conduct e$*ected.

iii' 5ar-et 3eterrence! The law aims to change the behaviour of the *roducer of goods soas to *revent future harms. "ote also that one of the other aims of market deterrence isto ensure that *roducers *ro*erly internalise their costs.

#)% *ducation

"ote that it is easy to confuse this aim with the related aim of deterrence. &ain *oint is that in itseducative role, torts aims to influence the behaviour of society at large, and not )ust the actions of*otential defendants.

+ormatie "ccount

Looking at the question of what it is torts shoulddo.

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"ote that one of the main critiques of corrective )ustice is offered by *ro*onents of distributive justice.Thiscritique is very old ! goes back to 6ristotle, who noted in Boo- 7 of The Ethicsthat under *rinci*les ofcorrective )ustice Dit makes no difference whether a good man has defrauded a bad man, or a bad man a goodone E the law looks only at the nature of the damage. Treating the *arties as equals.F

Gey argument is that the law of torts should *ay more attention to the *rinci*les of distributive )ustice,and be less s+mpatheticto the claims of those who already have a great deal.

,n addition to the distributive justice critique8 there are two alternative normative theories of torts"

%&' 0etributive theor+"Argues that torts should aim to im*ose liability on blameworthy defendants for the*ur*ose of *enali3ing them for their moral fault.

%(' 9conomic theor+"Argues that torts should aim to minimi3e the costs of accidents and the costs ofavoiding them. According to this theory, tort liability should only be im*osed where it leads to rationaleconomic behaviour and an efficient allocation of resources.

,asic 'rinciples of Liability for Intentional Torts

According to Osbourne, there are a number of key distinctions between intentional torts and the tort ofnegligence:

%&' ntentional torts have a long history, whereas the tort of negligence is a fairly modern tort. This isim*ortant because it e$*lain why the area of intentional torts a**ears to be quite static and unchangingwhen com*ared to negligence.

%(' ntentional torts are defined by rules that tend to be *recise, narrow and rigid, whereas negligence isgoverned by general *rinci*les and the use of what Osbournerefers to as discretionary *rinci*lessuch as reasonablenessand foreseeabilit+.

%)' ntentional torts have been relatively stable over time, whereas negligence has been in a state ofdevelo*ment over the last hundred #and *articularly the last eighty% years.

%:' ntentional torts are characterised by convention, orthodo$y, and conservatism, whereas the tort ofnegligence has been dynamic, e$*ansionary, and largely reflective of current *ublic attitudes and*olicies.

%;' ntentional torts are not covered by liability insurance and some have a *arallel in criminal law.

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IntentionAlternative definition from #olomon: Dn tort law, the term intent is used to refer to an actors desire tobring about the result or consequences of his act, rather than his desire to do the *hysical act itself.F

=ut another wa+8 we sa+ that 6 intended > when he wanted > to result from his actions.

The te$tbooks *rovide lots of e$am*les of intention in torts, but the *oint can be easily illustratedby the following case:

magine A is in a forest and, thinking that he is com*letely alone, decides to use a tin canfor rifle *ractice. (hoots at the can and hits it. The bullet, however, ricochets off the canand hits 8, who is walking through the forest but out of sight of A.

learly, A intended to hit the can. 8ut we *robably would not say that he intended to hit8. As a result, A could not be held liable for battery #as the tort requires the harmfuconduct ! i.e. striking 8 ! to have been intentional%.

/e+ =oint" ?hen we are dealing with intentional torts, the central issue is usually whether the defendantdesiredto bring about the s*ecific consequence that gives rise to the tort in question.

m*ortant to note that the defendants intent does not need to be hostile or otherwiseblameworth+.

"ote that it is im*ortant to recognise the difference between a voluntar+ act and an intentional act. Avoluntary act is one that the defendant was able to e$ercise control over #*erson wanted to do it%. 0$am*les ofinvoluntary acts include acts committed while aslee*, in the throes of a sei3ure or e*ile*tic fit etc.

.oluntary

This is im*ortant because volition is not usually enough to establish liability, e$ce*t in cases of strict

liability. "eed to also show that the defendant intended the consequences of the involuntary act.

/ood e$am*le of this is in the very old 0nglish case of Smith v. Stone %&

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-raiseworthy motive is not a defense, although can be an element of a valid defense

Gilbert v. Stone%&

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*ote: The doctrine also a**lies in cases where the defendant sets out to commit one kind ofintentional tort but ends u* committing another.

According to Osbourne, the idea of transferred intent is )ustified on the grounds that thedefendants conduct is culpableand the *laintiff is innocent.

-ut another way, it is )ustified on the basis that we should res*ond to the wrongfuintentionand the harmcaused even if the defendant does not achieve his *articular

aim.

This might be controversial if we consider in a criminal conte$t. (hould the *erson receive less*unishment because they failed in their intention or ends u* hurting someone else@

o ourts are more liberal in the case of torts to give the *laintiff com*ensation and also becausethe defendant is not receiving a *enal sentence, )ust monetary com*ensation

o ourts are more strict in a criminal case

Ising transferred5constructive intent in a suit for intentional torts does not *reclude a *laintiff from suing underother grounds instead, such as gross negligence or negligence if a duty of care was owed.

9aving de*arted from the social standard of conduct, he is liable for the harm which follows from his act,although he did not intend it #'ettel v. *im)

#(% The meaning of capacity in tort

/enerally, we assume that all adults have the ca*acity to form the sorts of intentions that we talk about inrelation to intentional torts.

$owever: ?e sometimes make e$ce*tions in the case of children and the mentally disabled.

Basic rule" A defendant cannot be held liable in tort if he or she did not understand thenatureand qualit+of their act.

*ote: A defendant can be held liable even if they did not realise that the act in question waswrong or unlawful. D*rior faultF ! courts will consider your ca*acity being affected by your own*rior faults and may not be as liberal.

"ssault and ,attery

?hen we s*eak of assault, it usually includes assault and battery because it is blurred # %amriell v Ca$arell(19+4))

"ssault

/eneral *oints amages for assault unaccom*anied by battery is usually small. #Ste$ens v Myers (1-30))

efendant being assaulted may *rovide a basis for defence of consent or self4defence or *rovocation#'rue v &yer (19))

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According to 1sbourne, an assault in tort law is an+ direct and intentional act that causes a person toapprehend immediate harmful or offensive bodil+ contact.

,ased on this denition- in order to succeed in a claim for assault aplainti must proe:

%&' The act com*lained of was direct #*rove by *laintiff% and intentional#reverse4onus on defendant%K and

%(' aused the *laintiff to apprehend immediate harmful or offensive bodil+ contact

#$% The act complained of was direct and intentional

3irectnessn order to satisfy the requirement of directness, the *laintiff must *rove that the interference was animmediate result of the defendants action ! that is, the interference is a direct consequence of the defendantsact.

9!ample" f A raises their hand as if to strike the *laintiff, that would constitute a direct assault.

9owever, lets say A says to 8 Dthe ne$t time see m going to hit her like thisF andstrikes a tree. 8 then *asses this on to . There is no assault, as the threat isnt direct.

,ntentional1nce the *laintiff has *roved that there is a direct act, it is for the defendantto *rove that he did not intend tocause the defendant to a**rehend immediate harmful or offensive bodily contact.

D" Wh+ do we reverse the onus of proof here?

6" Osbournesays on *age 6J that it arises out of the direct causal link between the defendantsanti4social conduct and the violation of the *laintiffs right to *ersonal autonomy.

*ow: Also need to note that the *rinci*le of transferred intent clearly a**lies here. 7or e$am*le, if Awalks into a room brandishing a knife yelling Dm here to kill avidF and there are two avids inthe room, both can sue for assault if the act *ut them in fear.

$owever: ?hat about the situation where the *laintiff misunderstands the defendants actsand intentions@ 7or e$am*le, lets say that the staff at a holiday resort stage afake bus hi)acking and, using fake guns, *retend to hold everyone in the bus toransom, threatening to kill them if their demands for money are not met@

4eneral view" Once it has been held that the defendant has theapparent intent and apparent capacit+ to carr+ out thethreat %judged b+ the standards of a reasonable

person'8 the+ can be liable %Kennedy v Hanes [191!S"# $%&.

#&% Caused the plainti to apprehend immediate harmful or oensie bodilycontact

an break this second element down into threeim*ortant *arts:

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%i' Causedthe *laintiff to a**rehend #but4for test%%ii' ,mmediate%iii' $armfulor offensivebodily contact

CauseThe first *art is usually not hard to *rove, and is established by reference to the idea of but2forcausation !that is, but for the actions of the defendant, would the *laintiff have immediately a**rehended harmful oroffensive conduct. Actually being terrified is not necessary #'rady v Sat/el 1911). n addition, *assiveconduct of the defendant will suffice, does not need to be active conduct.

,mmediaten order to establish immediac+, the *laintiff must be able to *rove that they e$*ected the attack or contact toha**en immediatel+ following the threat. -ut another way, the threat must be one that is capableof beingcarried out at once. There is a degree to the immediacy. e. (omeone calling and saying they are on their waycan be quiet immediate. 7urthermore, the *laintiffs o*tions #ie. +unning away% will not be taken into account bythe court

Two important points"

%&' The a**rehension of immediacy must be reasonableK and

%(' Threats of futureviolence will not suffice

$armActual bodily harm can include in)ury to any *art of the body including organs, nervous system and the brain# v Canook 1994 2 ll 6 552)"ote that the anadian courts have yet to consider whether to ado*t the a**roach taken in the 0nglish case of#. v. 'reland %&AA'. This case #about making silent *hone calls which amounted to assault% is interestingbecause the court held that:

-sychiatric in)ury was ca*able of being bodily harm.

?ords alone #and silence in some circumstances% can constitute an assault.

(ilence, de*ending on the circumstance, could amount to a**rehension

8ased on *ro)ection, words and silence should constitute assault but the )uris*rudence in this area is notwell4develo*ed

-sychiatric in)ury is included but not mere feat, distress or *anic

Assault requires fear of an immediate a**lication of force. (uch fear could have e$isted in this case if fore$am*le the victim of the silent caller had feared the *ossibility of immediate *ersonal violence due to thecallers imminent arrival at her door.

7olome v. Witaker, 6J< Ala. (o.6d 6>J #2JHC% ?hether conditional threats #cou*led with *hysical *resence% amount to assault@

o -rior to this case, words does not amount to assaulto D?hile words standing alone cannot constitute an assault, they may give meaning to an act and

both, taken together, may constitute an assaultFo Gey is the im*ression created in the *laintiffs mind

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,attery

According to Osbourne, battery is a direct8 intentional8 and ph+sical interference with the person ofanother that is either harmful or offensive to a reasonable person. "o need to show damage, becausethere is a right to bodily integrity. an break this definition down into four key elements ('ettel v. *im). n

anada, battery may be committed intentionally or negligently #Cook v 8eis):

*lements%&' -hysical interference

%(' irectness

%)' ntention #defendant must establish lack of intent and negligence #&aler# v. :aydiuk (199))

%:' 9arm

#$% 'hysical interference

0ssentially means that there has to be some form of contact or *hysical interaction with the *laintiff. -hysicainterference does not mean the same as *hysical in)uryMM

"1T0: 8attery must be a *ositive act. According to 0nglish )uris*rudence (Wilson v ;rin#le 19- C), there isim*lied consent in certain day4to4day social interactions, *laintiff has to establish hostility on the defendants*art to succeed%

"ote that the defendant does not have to have actually touched the body of the *laintiff ! that is, bodily contact

is not required for *hysical interference #orde v Skinner (1-30) hair cut%. nstead, sim*ly grabbing someonesclothing or snatching something from them will be enough to establish *hysical interference

*ote: Osbournes*eculates on whether N4raying someone, or e$*osing them to ultraviolet light in a suntanning salon would amount to *hysical interference for the *ur*ose of battery. 9e seems to think thatthey would, as they constitute interferences with the *hysical integrity of the *erson #that is, they havean effect on the body%.

This seems to make sense, in *art because these sorts of actions clearly interfere with anindividuals right to determine what ha**ens to their body.

n addition, the argument is also in kee*ing with the long4standing rule that a *laintiff

does not need to be awareof the battery when it takes *lace. 7or e$am*le, someonewho is touched without their consent while aslee* or unconscious will be able to sue forbattery once they become aware of the interference.

"ote that this view is reflected in the decision in (alette v. Shulman%&AAE'

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9as the same general meaning as in assault. "ote that as a *ractical matter, this means that things like tra*sor deliberately *oisoning someones food cannot be battery. There &AO be a move towards more liberalinter*retation, such as in the I(A #&onald v Seastian (19-+) landlord !ailin# to arn aout ontaminatedater soure)

nterfering with something he *laintiff is carrying, wearing or riding on may also be battery #I( ase: Mor#an v8oyaomo, 1 So2d 510)

#(% Intention

ntention has the same meaning as in the case of assault, although it is im*ortant to remember that you onlyhave to intend to bring about ph+sical contact! you dont have to intend to cause harm or be sociallyoffensive. Also, as with assault it is for the defendantto *rove an absence of intent once directness has beenestablished.

'ettel v. *im#2JH>%, >> .L.+. #d% C

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(he argued that because the *ur*ose of battery is to *rotect *ersonal autonomy rights, itwould be wrong to e$*ect a *erson whose bodily integrity has been violated in such afundamental way to then have to *rove the contact was non4consensual.

*ote:n this sense, Pustice &cLachlins decision marks a re)ection of the formal equalityof *laintiffs and defendants that underlies most civil litigation

,nstead: (he e$*licitly recogni3ed the *ower imbalance *resent in se$uaabuse as well as its often gendered nature, the inherent wrong to

victims of se$ual abuse, and more generally, *ersons who havesuffered intentional invasions of their *ersonal autonomy and dignity.

Consent

n "Q and 0ngland, *laintiff must *rove absence of consent #Ceristo$erson v 'are%. n Australia, this is not thecase (Siley v Miltinovi).

"ote that the court can also refer to the idea of constructive consentwhen faced with an absence of cleaevidence.

That is" The court asks whether it would have been reasonable for the defendant to believe that the

*laintiff was consenting to the battery

=ut another wa+" onstructive consent is to be ob)ectively determined based onwhether the complainantHs conduct lent itself to a reasonableinference of consent to se!ual contact.

$ence: There must be a reasonable basis for the defendants belief in the *laintiffsconsentK a reasonable *erson in the defendants *osition should have believedthe *laintiff consented to se$ual contact in the *articular circumstances.

*ote: n order to determine whether there was consent or not, the court wilconsider the *laintiffs demeanor as well as the surrounding

circumstances at the time of the alleged assault.

*ow" The reason why this decision was seen as a victory for feminists was because, by re)ecting a sub)ectiveassessment of belief, the court also re)ected the idea that a honest, mistaken #but unreasonable% beliefcould be a defence.

$owever" an be argued that because Saleradidnt go into great detail n the question of constructiveconsent, there are a number of *roblems with this a**roach:

%&' t is unclear as to whether the defendant needs to adduce evidence about reasonableefforts to ascertain the claimants consent.

%(' The ob)ective a**roach means that the *laintiffs *erce*tion of events and e$*erienceof se$ual violation is irrelevant *rovided the defendant can show that there is areasonable basis for their belief in her consent.

%)' 0m*loying the idea of constructive consent could lead to a situation in which the courtsin effect blame victims for having behaved in ways that induced defendants intobelieving consent was *resent, or for failing to resist in circumstances where areasonable *erson would have *rotested.

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. om*lete restriction on *hysical libertya. As regards the requirement of restraint, it is im*ortant to note that *hysical im*risonment in a

room or a building is not necessar+. +estraint may be im*osed by:i. 8arriersii. An im*licit or e$*licit threat of forceiii. An e$*licit assertion of legal authorityiv. -artial obstruction not im*risonment #'ird v =ones) if the *erson has o**ortunity to go

another directionv. -sychologically #Cam$ell v S.S. >re#e Co)

Threat of arrest or embarrassment is enough to cause *sychological restraintb. Lack of a reasonable means of esca*e #ie. rossing a third *artys land is unreasonable but

there is case law in 2;JJ that shows otherwise, Wri#t v Wilson%i. ourts have to determine whether the means of esca*e was reasonable #7anson v

Wayne?s Ca!e 8td)c. "o need to be conscious of being falsely im*risoned #no case law in anada but some mention

of this =.(M.@.) v %rieve%. There is 0nglish and I(A case on this #Murray v Ministry 199-)i. 0esult" A remedy is *robably available to kidna**ed infants and mentally

incom*etent adults who, because of age or an illness such as Al3heimers disease, areunaware of their detention.

d. -risoner being *laced in solitary confinement is false im*risonment (7ill v 'ritis Columia)which is different from the IG *ers*ective #7a#ue v. &e$uty %overnor o! ;arkurst ;rison1991 78)

*ote: The issue of whether the im*risonment was lawful#or false% is treated as a defenceby the courtrather than as an element of the tort #that is, it must be raised by the defendant%.

1ne can be liable for false im*risonment for ordering another to do so #if that *erson had no discretion5control%eid v Wester (19) ;6@SC

4uestion of indirect false imprisonment

onsider the case of #oberts v. uster/s 2uto To,in3 Service td.%&A

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o If there was discretion, there may be liability for the action-taker

/alicious 'rosecution

According to Osbourne, two interests are in tension in the tort of malicious *rosecution:

%&' The freedom of individual citi3ens from groundless criminal *rosecutions that may result in damage totheir re*utation, a loss of liberty, and financial loss

%(' The *ublic interest in the effective and uninhibited *rosecution of criminal wrongdoing.

*ote" The tort of malicious *rosecution strongly favours the *ublic interest by *rotecting *rosecutorsfrom liability unless the *rosecution was brought maliciously and without reasonable and*robable cause.

"ot only for criminal *rosecutions but also by4law infractions taht can lead to im*risonment #&elaney v &ale ACo. 8td (1959))

?rongful initiation of disci*linary *roceedings against *rofessionals (>anna v oyal Colle#e o! &entalSur#eons)

ontinuation of charges that are known to be error is also considered malicious *rosecution (niel vMetro$olitan Boronto ;olie ore)

7ailure on malicious *rosecution does not mean *laintiff cannot sue on negligent *rosecution and negligentinvestigation which is a lower burden #7ill v 7amiltonWentort e#ional ;olie Servies 'oard 200+ SCC41)

*lements of the tort:The *laintiff must *rove that

%&' efendant initiated the *roceedings against the *laintiff

%(' The *roceedings terminated in the *laintiffs favour

%)' There was no reasonable and *robable cause for the *roceedings

%:' There was malice on the *art of the defendant

%;' The *laintiff sustained damage.

#$% Institution of the 'roceedings by the !efendant

0ule" The defendant must have instigated the *roceedings. This means that the defendant must havebeen actively instrumental in bringing a *rosecution.

*ote: &erely *roviding information to the *olice is normally not sufficient unless a false re*oris deliberately given to the *olice for the *ur*ose of *rom*ting a wrongful *rosecution.

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#&% Termination of the 'roceedings in the 'lainti5s Faour

0ule: A conviction indicates that there was reasonable and *robable cause for the *roceedings.

$ence: A conviction that has not been set aside will *revent an action in malicious*rosecution.

#(% Lac6 of 3easonable and 'robable Cause

Traditionall+, this requirement was seen as having two elements: subjectiveand objective

(ub)ective element R an actual beliefin guilt

1b)ective element R a rational basisfor that belief

n *ractice, this means that the *laintiff had to show that:

a' The defendant did not honestly believe ! assuming that the facts of the case are true ! that thatthe *laintiff was guiltyK and

b' "o reasonable *erson, *laced in the *osition of the defendant, would have come to theconclusion that the *laintiff was guilty

9owever: The *osition a**ears to have changed as a result of the decision in (ia43a v. Kvello EstateF(EEAG #CC ;&

acts: -rosecutor #&% *rosecuted two *arents for se$ual assault, who had been accused of the crimeby their three children #they also accused a range of other *eo*le, including the foster *arents%.

& had doubts about the credibility of the children, and consulted with his head office, whoadvised him to continue the *rosecution if he believed the essential elements of the childrensstory of the accusations.

*ow: -arents were convicted, but then it later emerged that the children had been lying-arents sued & for malicious *rosecution. & was convicted, and the trial )udgeaddressed the third ste* of the test, and noted that & never testified whether he believedthe children, and even if did believe the children it would not have been reasonable.

& a**ealed to the (u*reme ourt, which considered the subjectiverequirement of thetest

$eld: The ourt found that Sreasonable and *robable groundsS is concerned with therowns *rofessional, not *ersonal o*inion about the merits of the case.

/e+: Lack of a sub)ective belief of the *laintiffs guilt is inconsistent with the roleof a *ublic *rosecutor in u*holding the *ublic interest.

The ourt also noted that in reviewing whether there were reasonableand *robable grounds, the court should only consider the facts availableto the *rosecutor at the time the decision was made, not the facts thatlater came out.

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0ule: "o need to consider sub)ective belief. 1nly consider ob)ective at this stage, thenmove to malice test.

#)% /alice

0ule" &alice includes the notion of s*ite, ill will, and vengeance

But: Also e$tends to any improper purpose. The *ro*er *ur*ose of a *rosecution is to bringan offender to )ustice and to enforce the criminal law. 0$am*les of im*ro*er *ur*oseinclude: nstigating a *rosecution to secure a *rivate collateral benefitK coercing a*erson into a desired course of conductK and shifting the blame for causing damage to*ro*erty to an innocent *erson.

*ote" The court in Mia/#a v. >vello 6state 6JU ( C2 also had things to say about therequirement of malice #&alice cannot e inferred from absence of belief in a reasonableand *robable cause alone%:

$eld: &alicious intent #wilfully% requires an im*ro*er *ur*ose that was inconsistent with the

office of the rown attorney. An honest #and negligent% but mistaken belief that therewere reasonable and *robable grounds does not su**ort a finding of malicious intent.

6lso: ourt found that while the lack of a sub)ective belief of reasonable and *robablegrounds is a relevant factor in determining malice, it does not automaticallyequate with malice. t may be the result of ine$*erience, incom*etencenegligence, recklessness or gross negligence 4 none of which are the same asmalicious intent.

#ome # 1urisdictions put the burden of proving malice on the defendant and plaintiff onl+ need toshow there was some other motive other than justice %no need to prove malice'8 but is not the case inCanada as stated above and also in 9ngland 5(oulton v "hief "onstable of the 6est (idlands&

#7% !amage

0ule" &alicious *rosecution is notactionable without *roof of actual damage

9!amples of actionable damage"

Loss of re*utation

Loss of liberty

7inancial loss

Intentional In8iction of +erous 1hoc6

Like malicious *rosecution, intentional infliction of nervous shock #"(% is a tort usually defined in terms of itselements. According to Osbourne, the *laintiff must *rove:

%&' 1utrageous or e$treme conduct cou*led with actual or constructive intent to cause a severe im*act onthe *laintiffs *sychological well4beingK and

%(' "ervous shock, defined as recogni3able *sychiatric illness or *hysical harm.

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*ote: ntent is often inferred from the seriousness of s , and may also be inferred wheremental distress to - was reasonably foreseeable #for e$am*le where - witnesses violentattack on immediate family member#s% 4 -urdy v. ?o3nesensky%

"ote also that intent to inflict mental distress may also be inferred from the e$tentand duration of harassment #as was in "lar0&.

inall+: need not have foreseen the full e$tent of -s in)ury as long assome *sychological in)ury was intended

#(% +erous shoc6

"ervous shock is defined in this conte$t as a recogni3able *sychiatric illness or *hysical harm. Isuallydont take into account the circumstances of the defendant #ie. 0asily shocked *eo*le%, some courtstake into account age5gender.

*ote: Anguish, worry, and emotional distress are insufficient to su**ort an action. #7ei#in#tonv ntario 19-+))

#adovs0is v. Tomm: -laintiff failed in claim for "( against an offender who hadcommitted a serious se$ual assault on her five4year4olddaughter 4 on the grounds that she *resented no evidenceof illness.

$owever: "ote the decision in #ahemtulla

acts" - wrongly fired by after a false accusation of theft #money in bank went missing%. -suffered mental anguish #de*ression, slee*lessness, sto**ed eating% as - could notobtain em*loyment after the incident due to defamation. &edical evidence to su**or*laintiffs claim was not introduced

$eld" Can have ,,*# where no medical evidence of mental illness e!ists8 provided

that there are s+mptoms of depression present and the behaviour of 3 isKoutrageousF. efendant need not intent nervous shock if the defendant actedrecklessly or there is foreseeable mental distress.

*ote: 1sbourne argues that in recent years there has been some rela$ation in the inter*retation of nervousshock, and that the courts are edging towards recogni3ing severe emotional distress as sufficientdamage #*articularly where the defendants conduct is utterly outrageous%.

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/e+ Case" 6il0inson v. 7o,nton

acts: efendant, by way of a *ractical )oke, told the *laintiff that her husband had beenseriously in)ured in an accident and that he was lying in a tavern with both of his legsbroken. The defendants statements were false. The *laintiff became seriously ill fromthe shock to her nervous system and she suffered serious and *ermanent *hysicaconsequences.

$eld: was liable on the basis of his constructive intent to shock and harm the *laintiff.

1tal6ing- 0arassment- and !iscrimination

!iscrimination1ne of the key questions for the courts in recent years has been whether there should be a freestanding tortof discrimination

As Osbournenotes, some courts have been attracted to the idea because it would com*lemente$isting equality *rotections established by federal and *rovincial human rights legislation.

*ote: The key challenge for such a tort would be to balance equality #and the right to be freefrom discrimination% with other legitimate legal interests, such as freedom of contract

Osbourne: Argues that this wouldnt actually be that difficult, as e$isting legislationcould serve as a guide to the courts when it comes to the balancing*rocess

$owever" 7or the time being at least, it a**ears that the (u*reme ourt is unwilling to recognise a tort ofdiscrimination. (ee the decision in Seneca "olle3e of 2pplied 2rts 8 Technolo3y v. hadauria 5case hasbeen used to stri0e out harassment claims. 2lthou3h seual harassments have had some success and

some not ojoe v Kelly- Sul4 v "&.

/e+ point" Although at trial the court u*held an a**lication to strike out the statement of claim as disclosingno cause of action, the 1ntario ourt of A**eal later held that the *laintiff had a common lawright not to be discriminated, which was inde*endent of statutory obligations and remedies

*ote: Pustice ?ilson begins by citing -rossers Handboo0 of the a, of Torts,

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"ote that Laskin .P.. actually says that the ode forecloses on the possibilit+ ofrecognising a common law right J cause of action

#olomonseems to suggest that ?ilsons inter*retation of the law is more accurate than Laskins #ie. 7orsley vMa8auren 19+2 SC 441) ! argues that she is right to say that statutes can and should affect thedevelo*ment of the common law

*ote: m*ortant to remember that the decision in Senecaonly e$cludes tort actions that are founded on abreach of a human rights code. ourts in some cases sideste* an *rovides remedy on the basis ofwrongful dismissal or "( #>eays v 7onda Canada)

6s a result" -ossible to argue that an action based on an independent tortsuch as an assault ointentional infliction of nervous shock should work

1tal6ing

(talking is where a *erson knowingly #i.e. intentionally% or recklessly harasses another *erson in a manner thatleads that other *erson to fear for her own safety ! referred to as criminal harassmentin the riminal ode

and *rohibited by under section 6;

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/e+ point" ourts are only really willing to consider the question of harassment where the *laintiff isthe clear target of the harassment and suffers severe mental distress. 9owever, even where this is thecase, the a**roach taken varies between:

8asing liability on a *reviously recogni3ed tort

-roviding a remedy through consumer *rotection legislation

+ecogni3ing a new tort of harassment.

As Osbourne notes, the *roblem with the current situation is that it *roduces uncertainty andconfusion, as illustrated by the case of "hapman v. $( "anada 'nc5courts stri0e out harassmentclaim because of statute eistin3&

n 0ngland, -rotection 7rom 9arassment Act 2JJH #2JJH, c.

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t is im*ortant to note that the action is available to anyone who is in legal possession of land.This meansthat the following cannot usually sue in tort for tres*ass to land:

1wner of leased *ro*erty #because they have effectively surrendered *ossession of the land to thetenant for the term of the lease%

A *erson who only has a licence to be on the *ro*erty #such as a live4in nanny or a hotel guest%

*ote: There is a key e$ce*tion to the general requirement of *ossession. +eferred to as thedoctrine of trespass b+ relation.

Basic rule" -laintiff can sue in tres*ass even if they were not necessarily in*ossession of the land at the time of the interference ! *rovided that noone else was in *ossession and they subsequently take *ossession. &ostcommon e$am*le of this is where tres*asses onto vacant land owned#but not occu*ied or controlled% by the *laintiff. 1nce - retakes*ossession, they can sue in tres*ass.

*lements of the tort #actionable without proof of damage%

%&' The intrusion onto the land must be direct

%(' The interference must be intentional or negligent

%)' The interference must be *hysical

#$% The intrusion onto the land must be direct9

-ut another way ! the intrusion must be a direct resultof the actions of the defendant.

As Osbourne notes, the requirement of directness means that a *laintiff cannot sue fointrusions like oil s*ills or situations where something washes u* on to their land.

*ote: (uch situations #indirect tres*ass% are usually dealt with by the tort of *rivate nuisance(nderson v Skender(1993)).

#&% The interference must be intentional or negligent

/e+ point" The burden of *roof is on the defendant.

That is" 1nce the *laintiff has *roved that there has been direct interference, thedefendant must *rove a lack of intention or negligence. n *ractice, thetort of tres*ass to land is usually only used for intentionalinterferences !law of negligence has essentially made the old tort of negligent tres*assto land redundant.

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*ote: t is not necessary for the *laintiff to *rove that the defendant intended tocause harm to the land or the *laintiff ! instead, all that is required is anintention to intrude onto the land or interfere with it.

"ote also that mista-e is no defence %asely v "lar0son&. oesnmatter if, for e$am*le, that you thought you had *ermission to enter theland or that the land was yours. (ee Burner v. Borne, #2J;% #1nt. 9%the *ostal work her case.

Tres*ass from an innocent mistake does not relieve liability or any results thereof (>o$ka et u" v. 'elltele$one Co. ! ;ennsylvania(1952)). Tres*asser becomes liable not only for *ersonal in)uries that resultdirectly and *ro$imate, but also for indirect and consequential results.

#(% The interference must be physical

ntrusions caused by smog, chemical fumes, smoke, noise, or odour are unlikely to satisfy this element! and again are likely to be dealt with via the tort of *rivate nuisance.

*ote also that trespass to land is actionable without proof of damage.

!efences

There are threemain defences to tres*ass to land:

%&' onsent%(' "ecessity%)' Legal authori3ation

#$% Consent

Basic 0ule" There is no liability in tres*ass to land where the *ossessor has consented to anotherentering his land.

*ote: onsent to enter *ro*erty is commonly known as a licence. As Osbournenotesthe licence may be e!pressor implied, contractualor gratuitous, and given toan individual, a grou*, or the world.

,f a third part+ gave such license8 the third part+ must have better right ofpossession than the plaintiff.

#&% +ecessity #complete defense%

Basic 0ule" A tres*ass to land may be )ustified where there is an emergency and it is necessary forthe defendant to tres*ass in order to *revent harm to themselves, the *ublic, the*ossessor of the land, or a third *arty.

6lso" The wrongful acts must be *rom*ted by imminent *eril and must be necessary inthe light of the advantage to be gained and the absence of other availableo*tions.

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6nd" efendant must be able to show that the danger significantly outweighedthe damage or loss caused to the innocent *laintiff by the tres*ass.

#(% Legal "uthority

Basic 0ule" ?here entry onto land is authori3ed by statute ! for e$am*le, by virtue of a searchwarrant issued under -art N' of the riminal ode #(ection >% ! then there is notres*ass.

,n particular8 some provinces such as BC have legislation dealing with trespass such as KTrespass 6ctF0#BC &AA

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6lso: "ot necessary for the defendant to know that theinterference is wrongful

;ey points about the tort:

%&' Any direct interference with a chattel is actionable, with the result that damage, destruction, taking, or

movement of the chattel can all *rovide a basis for the tort. Dsim*le as*ortation of a chattel, evenwithout intention of making further use of it as sufficient for an action in tres*ass, not in conversionF(oulds v Willou#y (1-41))

$owever: n *ractice, tres*ass is most commonly used where a chattel has been damaged owhere there has been some minor unauthori3ed use or movement of the chattel.

*ote: The destruction or taking of chattels is usually remedied by the tort of conversionor the tort of negligence.

%(' 1nce the *laintiff has established that there was an interference with *ossession, then it for the

defendant to *rove an absence of intent.

%)' Gnowledge that the interference is wrongful is not required. 5ista-e is no defence. (Cameron vMoran# (19+-))

%:' "ot clear if tres*ass to chattels is still actionable without *roof of damage.

Two main views"

"o damage should be required, as making the tort actionable *er se enables it to *lay a role in

*reventing *eo*le from touching valuable art and museum *ieces. Also ensures that there is aremedy for the unauthori3ed moving or tem*orary use of chattels.

There are no anadian cases in relation to com*uter systems, but in alifornia in the ntel v 9amidcase, it was held that there must be direct harm to the chattel as an essential element of tres*ass inchattels.

Inless goods are taken, damage should be an essential element of liability #there is dignitaryinterest in the inviolability of chattels%.

*ote: 1n *age 22H, #olomonargues that the better view is that the tort is actionable *er se#William 8eit A Co v. 8eydon 1931 C 90 (78)). This is from the I(A where they distinguishdis*ossession #considered sufficient damage% and mere interference #not actionable without*roof of loss%. (estatement o! Borts 195)

%;' The remedy for tres*ass to chattels is an award of damages. The measure of damages for a damagedchattel is the reduction in its mar-et value or the cost of re*airs #where that is less%. An alternative toclaiming com*ensation could be to receive the defendants gains. #:eate v 7ardin# (1-51))

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#&% !etinue

3efinition" etinueis available where the *laintiff ! who has a right to the immediate *ossession of the chatte! has asked the defendant to return it. "ote that the action is also available where the *laintifhas lost the chattel as a result of his wrongful act. Actionable *er se (Williams v ;eel iver 8andA Mineral Co ltd (1--)). an seek defendants gains as com*ensation. (ordin# to 8ord&ennin# in Strand 6letri A 6n#ineerin# Co. . 'ris!ord 6ntertainments )

*ote"The tort *rotects the *laintiffs right to the chattel and focuses on the defendants deniaof the *laintiffs rights by refusing to return it. #There is an e$ce*tion if the *laintiffcan clearly show that the demand would have been refused ('aud Cor$. : v'rook (19+3) 12 311(C))

;ey 3ules

%&' -laintiff must first ask for the item back #and the defendant must refuse% before the action can be broughtbefore the court.

#&% &ain remedies are an order from the court #requiring the defendant to return the chattel% or an award ofdamages for its value #and detention%. There is no right to the chattel, it is u* to the court to make theorder. (C! Senta# v %autier (19+2))

Three 5ain 0emedies (%en A inane ailities 8B& v. Cooks Cars (om!ord) 8B&. 193 1W W8 44(C))

2.'alue of the chattel V damages for detention6.+eturn of the chattel V damages for detention. @@@@

*ote: The fact that the court may order return of the chattels in detinue is what distinguishes the tortfrom trespassand conversion.

When should a plaintiff sue in detinue rather than conversion or trespass to chattels??here the good in question is unique or not easily re*laced ! i.e. an heirloom, )ewellery, orunique industrial or commercial machinery.

*ote" An action in detinue will fail if the defendant returns the chattel before )udgment is given.

6lso: 8ecause the tort is a continuing one arising out of the *ersistent failure of thedefendant to com*ly with the request to return the chattel, damages for the valueof the chattel are assessed at the time of judgment rather than the date of the

initial refusal to return it. (%en A inane ailities 8B& v. Cooks Cars (om!ord)8B&. 193 1W W8 44 (C)) ontrast this with the general rule in conversionthat damages should be assessed at the time of the conversion.

#(% Conersion

3efinition" onversion is where the defendant intentionall+ interferes with the chattel in such as wa+ asto seriousl+ harm the plaintiffs rights to it! i.e. by taking, destroying, or refusing to return

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the chattel. The *erson converting should intend some use to be made of it. # oulds vWillou#y, te orse ase)

*ote" onversion is a relatively new tort, and has gradually e$*anded in sco*e so that it nowcovers many situations that would have *reviously been dealt with by tres*ass tochattels and detinue.

"ote also that in conversion the *laintiff is seeking damages, whereas in detinue theyare seeking return of the chattels. Also im*ortant to remember that the *laintiff is allowed

to chose which action they want to *ursue.

9!amples of conversion##olomon, *ages 26C426;%:

Ta-ing possession: A takes 8s car without his consent.

Withholding possession: A refuses to return 8s good #which he is storing for him%.

Transferring possession" A, acting as an agent of 8, buys goods from #which were originallystolen from %. f A delivers them to 8, then A and will be liable for conversion.

3estruction: A destroys 8s car.

;ey 3ules

%&' The tort is restricted to intentional interferences with *ossession #or an immediate right to *ossession%.As a result, the tort of conversion is not available for negligent interferences.

%(' The act of conversion must be one that so seriously interferes with the *laintiffs rights to the chatte

that the defendant should be held liable for its full value. (ome authorities say that it is not actionableunless *laintiff establishes e$istence of a loss. #various law reform re*orts and torts te$tbooks%,istorially ationale $er se.

,n effect" onversion allows for the forced judicial sale of the chattel to the defendant.This

e$*lains why orders for the return of the chattel are not made in a conversion action. Thedefendant is treated as if he had bought the chattel and he can kee* it.

%)' &istake is no defence to conversion. (@rvin#ton 7oldin#s ltd. v. 'lak (19-+))

Therefore" An innocent seller of stolen goods and the innocent *urchaser can both be liable inconversion.

$owever" There are various e$ce*tions to this rule #involuntary bailee% (7ollins voler):

-acking, storing, or carrying goods for someone who lacks title to the goods will notgive rise to conversion *rovided the *erson res*onsible is not aware of the lack oftitle.

%:' amages are assessed at the time of conversion or when the *laintiff became aware of the conversion

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%;' -laintiff must attem*t to mitigate his loss by re*lacing the chattel as soon as is *ractical

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or e!ample" The courts have held that a *erson has an obligation #fiduciaryduty% to disclose a defect in a house for sale if that defect wouldmake the house dangerous or uninhabitable.

#&% The defendant must hae 6nown the statement was false #or was

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+easonable *eo*le are less likely to rely on o*inions, because they recogni3e that they aresub)ective and o*en to inter*retation.

,mportant to note a number of other points"

f the defendant can show that the *laintiff would have acted in the same way even if there hadbeen no fraudulent re*resentation, the action in deceit will be dismissed. +ule is that the attem*tto deceive must be successful

"o requirement that the re*resentation is the sole statement on which the *laintiff relied ! but itmust make a material contribution to his actions 5 decision.

#&% 'assing o

-ur*ose of the tort is to *rotect a *laintiffs business by *reventing the defendant from *resenting theirgoods and services as being those of the *laintiff. an demand com*ensation or *aying u* of thedefandants wrongful gains #&ra$er v Brist (1939))

5ore specificall+" The tort aims to *rotect the re*utation and goodwill of *roducers, and to *reventcustomers from being deceived.

6lso: an define *assing off as a tort that *rotects unregistered trade mar-s0ssentially, a trader must not sell their own goods under the *retence thatthey are the goods of another trader.

*lements of the tort:

According to Lord 1liver in #ec0itt 8 "olman ;roducts td. v. orden 'nc. F&AAEG#as cited in "iba*Gei3y"anada td.%, the *laintiff must establish:

%&' /ood4will or re*utation attached to the goods or services which he su**lies in the mind of the*urchasing *ublic by association with the identifying Sget4u*S #whether it consists sim*ly of a brandname or a trade descri*tion, or the individual features of labelling or *ackagingK

%(' A misre*resentation by the defendant to the *ublic #whether or not intentional% leading or likely tolead the *ublic to believe that goods or services offered by him are the goods or services of the*laintiffK and

%)' 9e has suffered or is likely to suffer damage by reason of the erroneous belief engendered by the

defendants misre*resentation that the source of the defendants goods or services is the same asthe source of those offered by the *laintiff.

*ow" According to the (u*reme ourt in Kir0bi 2G v #tvi0 Holdin3s 'nc [! $ S"# $=

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#)% 'ublic 'olicy

4eneral 0ule" onsent can be vitiated in some cases for reasons of *ublic *olicy. 7or e$am*le, a*erson cannot consent to being killed or seriously in)ured #ane v. Hollo,ayI #. v.:obidon%. Also, a *erson cannot consent to someone e$*loiting a *osition of authority#as in the case of se$ with *arents, doctors, teachers, etc.% (M.(M.) v. >.(k.) (19-9 3-'C8 (2d) 2+3 (C))

According to the court in )elit4 v. 7yc0 %(EE&' %Ont. C6', there is a two4*art test todetermine where a *ower imbalance vitiates consent. &ust *rovide:

-roof of inequality, usually in the conte$t of a D*ower de*endencyF relationshi*K and

-roof of e$*loitation ! considers the ty*e of relationshi* in light of communitystandards.

Intentional Torts: !efences #&%

1elf?!efence

To invoke the defence of self4defence, defendant must establish on a balance of *robabilities that:

%&' 9e or she honestly and reasonably believed that as assault was imminentK and

%(' That the amount of force that he or she used to avert the risk was reasonable in all of thecircumstances.

*ote" (elf4defence *rovides a com*lete defence, on the grounds that the defence is one of)ustification rather than e$cuse.

?hen determining whether the force used was reasonable or not, courts will look at the nature of the forceused, and all of the surrounding circumstances. 8asic idea is that the force should be *ro*ortionate to thethreat or likely harm.

*ote: n 6ac0ett, the court was clear that the defendant is not required to weight the niceties of the blow !i.e. court recognises that there may not be much time for reflection given the immediacy of the threatefendant also does not have a duty to retreat.

$owever" t is unclear as to whether the defendant has to consider the in)uries likely to result fromthe use of force. ro,n v. 6ilson %&A;' suggests that *rovided the force wasreasonable, the defendant is not res*onsible for the consequences.

6lso" "ote that the test has both an ob)ective and a sub)ective dimension. "eed to lookat the situation from the *ers*ective of the , and then )udge whether areasonable *erson would have used the same level of force #ec0ford v. #F&A@G%

-re4em*ting an attack can be used as self defence. -laintiffs re*utation for violence can be used as)ustification. ( v So$elliti (19-1))

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Take into account the reasonable *erson " T9AT +I&(TA"0 # v 8avalee 1990 1 SC -52 Dattered omen syndrome)

8ona fide mistake of fact can still use self4defence as a defence # v eilly 19-4 2 SC 39)

!efence of another @ third parties

Basic 0ule" The same rules as in self defence, with the requirement that the use of force be reasonableGambriell v. "aparelli%&A:' %Ont.Co.Ct.' Ndefending son in fight with neighbour

m*ortant to consider the decision in # v. avallee F&AAEG Nbattered women

Court: 9eld that e$*ert evidence on battered wife syndrome was admissible. According to Wilson 1.e$*ert evidence can be adduced where the )ury may be inclined to refer to myths andstereoty*es.

*ote: Also argued that it is a**ro*riate for the )ury to consider a womans e$*erience and*ers*ective when deciding on what deciding on what constitutes a reasonable *ersons

standard for self4defence.

!efence of discipline

Basic 0ule" At common law, *arents and guardians can use force when dealing with children.

This common law rule is mirrored in (ection

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The ma)ority held that (ection

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this harter, the evidence shall be e$cluded if it is established that, having regard toall the circumstances, the admission of it in the *roceedings would bring theadministration of )ustice into disre*ute.

O-a+" ?ant to end by going through some of the rights and obligations in the arrest *rocess.

/e+ case" Koechlin v. 6au3h and Hamilton %&A;'

#ome rules that emerge from this case"

%&' The *olice do not have a general right to ask individuals to identify themselvesnstead they must rely on a recogni3ed *ower, such as that inferred from (ection

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3emedies in Intentional Torts #$%

Audicial remedies

#$% !amages

These are available in most tort actions. n kee*ing with the focus on corrective )ustice,damages in tort are usually awarded in order to return the claimant to the *osition they wouldhave been in had the tort not taken *lace. "ote that damages in tort are usually divided intotwodifferent ty*es:

>eneral #non?pecuniary% damages

These are damages for non4monetary harms ! aim to com*ensate the claimant for suchthings as *ain, suffering and loss of amenity arising from the tort. 0$am*les include

*hysical or emotional *ain and suffering, disfigurement, loss of re*utation, loss orim*airment of mental or *hysical ca*acity, loss of en)oyment of life, etc.

1pecial #pecuniary% damages

These are damages for monetary losses ! aim is to com*ensate the claimant for thequantifiable monetary losses suffered as a result of the tort. Ty*ically, s*ecial damagesaim to com*ensate for lost earnings and, cost of re*airing #or re*lacing% damaged*ro*erty.

*ote: -ecuniary actually means: Dconsisting of or measured in money.F

*ow" an divide the class of s*ecial damages into five main headings:

%a' "ominal damages%b' om*ensatory damages%c'Aggravated%d' -unitive amages%e' isgorgement #restitutionary% damages

Injunction

An in)unction is a court order that requires a *erson to do something. an divide in)unctionsinto two ty*es:

#i% =rohibitive injunctions! requires a *erson to sto* doing a *articular act.

#ii% 5andator+ injunction! requires a *erson to do a *articular act. "ote that this is verysimilar to an order of s*ecific *erformance in contract law.

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*ote: 7ailure to com*ly with an in)unction *laces a *erson in contem*t of court, which can inturn lead to im*risonment. Ty*ically granted in cases of nuisance, or where there hasbeen some sort of ongoing tres*ass to land 5 chattels.

/e+ =oint" 8ecause in)unctions are an equitable remedy, they are sub)ect to the *rinci*les of

equity. n *ractice, this means two things:

%&' The remedy is a discretionar+one ! that is, the court is not obliged toim*ose an in)unction, even though liability may have been establishedK

%(' The clean hands principlea**lies 4 i.e. the court will not assist a claimantwho is himself in the wrong or acting for im*ro*er motivesK and

%)'An in)unction will not normally be granted where damages would be anadequateremedy.

!eclarationThis is a remedy where the court issues a formal statement setting out a *ersons rights legastatus. Also referred to as a declaratory )udgment. "ote that declaratory relief is usually onlygranted in very s*ecific circumstances ! for e$am*le, where there is dis*ute over *aternity in afamily law case, or a question of whether a *articular event is covered by an insurance *olicy.ont usually see this remedy in torts.

Order of 1pecic 3estitutionThis is a remedy where the court makes an award that aims at *reventing someone from

*rofiting from a wrong. 8ased on the idea of un)ust enrichment, a restitutionary award may begranted where the defendant has *rofited as a result of the tort, and the *rofit may e$ceed theamount that would have been *aid in damages.

*2tra?judicial remedies

3ecapture of chattels8asic rule is that a *laintiff is allowed to use reasonable force to regain or reca*ture his or her*ersonal *ro*erty when the defendant tortuously took the chattel from the *laintiffs*ossession, or obtained it as a result of duress or fraud.

3e?entry onto land8asic rule is that a *laintiff is allowed to use reasonable force to re4enter land where thedefendant has 4 by way of tres*ass ! entered and taken *ossession of the land.

"batement of nuisance8asic rule is that a *laintiff may use reasonable force to *revent or sto* a nuisance. "ote thatthe *rivilege must be e$ercised within a reasonable time, and that the *laintiff should givenotice to the defendant. -laintiff is also obliged to avoid any unreasonable or unnecessarydamages.

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3emedies in Tort #&%

"ggraated !amages

3efinition" Aggravated damages are a form of com*ensatory damages that are awarded tocom*ensate the *laintiff for additional in)uries to dignity and similar feelings arising fromthe defendants re*rehensible conduct.

According to the 8 ourt of A**eal #in T.6.).2. v "lar0- (EE) BCC6

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conduct giving the cause for com*laint is of such nature that it merits*unishment.F

/e+ question" (hould awards of aggravated damages be based on a sub)ective assessment ofthe *laintiffs loss@

=robabl+. &akes sense if you consider the fact that the aim is to com*ensate forthe additional harm caused to the *laintiffs feelings.

$owever" "ote that #oo0es#which is mostly endorsed in Borbis% notes thatyou have to look at the damage to the *laintiffs D*ro*er feelings ofdignity or *ride.F (uggests that they feelings of hurt have to be*ro*er or be in some sense reasonable.

'unitie !amages

3efinition" According to the decision in Borbis, *unitive damages are D*unitive in nature and mayonly be em*loyed in circumstances where the conduct giving the cause for com*laint isof such nature that it merits *unishment.F

=oint: This statement reflects the traditional a**roach to *unitive damages taken by theanadian courts. According to (olomon #*age %, they have tended to limit*unitive damages to situations where the defendants conduct warrants*unishment.

$owever: an be argued that the courts are increasingly coming to see*unitive damages as having a deterrence function. That is, they areawarding them for the *ur*ose of *reventing conduct like that of the

defendants in the future.

*ote: As a general rule, *unitive damages are only awarded very rarely, and only if the award ofcom*ensatory and aggravated damages is insufficient to *unish the defendant.

onsider the decision in.5;.& v. .56.&%&AA('8 where the ourt awarded damages as follows:

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%&' "on4*ecuniary damages #W2,% for the vicitimi3ation 5 shame 5 harm to self4esteem and self4worth.

%('Aggravated damages #WHC,% for violation and loss of trust ! essentially awardedfor the gross breach of trust.

%)' -unitive damages #WC,% for the unsanctioned ra*e.

/e+ points to ta-e awa+ from this case?

That although questions of aggravation can be taken into account when determining theamount of non4*ecuniary general damages, but they can also be considered se*aratelyKand

n awarding *unitive damages, the court must be careful not to create a situation of double

)eo*ardy. That is, must avoid *unishing the defendant for something they have alreadyreceived a criminal sanction for.

Also im*ortant to look at the general *rinci*les laid down in6hiten v. ;ilot 'nsurance "o.F(EE(G. n this case, 8innie, P. makes a number of *oints about the o*eration of *unitivedamages in contract and torts in the case, which can be summarised as follows:

%i' Inlike in the IG, *unitive damages in anada are not limited to certain ty*es of

cases or scenarios. an be awarded to *unish the defendant, deter thedefendant #and others%, denounce the defendant #and others%, or stri* thedefendant of *rofits.

%ii' oesnt believe that characterising defendants misconduct as malicious, viciousor high4handed is hel*ful. 9owever, it is clear that only very serious misconductwarrants *unishment or deterrence ! and therefore *unitive damages.

%iii' -unitive damages are most likely to be awarded in intentional torts, but can alsobe used in nuisance, negligence, and other tort actions.

%iv' The fact that the defendant may also have received a criminal sanction does not*reclude an award of *unitive damages.

%v' -unitive damages should be awarded with restraint, and only if an award ofcom*ensatory and aggravated damages is insufficient to *unish the defendant.

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%vi' "o ca* on *unitive damages, but the award must be based on the underlyinggoal and should be the lowest sum necessary to accom*lish that end.

%vii' Puries should be informed of the function of *unitive damages, as well as thefactors that determine the award and final amount of the damages.

%viii' A**ellate courts can intervene if an award of *unitive damages De$ceeds theouter bounds of a rational and measured res*onse to the facts of the case.F

!efamation

8asic *ur*ose of the tort of defamation is to *rotect re*utation from un)ustified attacks.

m*ortant to note that the e$isting law of defamation is based on two *reciously se*arate torts:

slanderand libel.

#landeris confined to words #s*oken defamation%, whereas libelcovers what (olomon refersto as Dconcrete forms of e$*ressionF #such as written defamation, films, and *ictures%.

*ote" The distinction between slander and libel was im*ortant because although slander wasonly actionable on *roof of damage, libel was generally actionable *er se.

$owever" ertain ty*es of slander were actionable *er se !such as im*utation of thecommission of a crime, infection with a loathsome disease, lack of chastity#for women only%, and unfitness to *ractice a trade or *rofession.

*lements of !efamation

n order to succeed in an action for defamation, the *laintiff must *rove on the balance of *robabilitiesthat the im*ugned statements were:

%&' efamatoryK%(' &ade reference to the *laintiffK and%)' ?ere *ublished or disseminated

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*ote: According to the (u*reme ourt in Hill v. "hurch of Scientolo3y F&AA;G, once the*laintiff has *roven that the defendants statements were defamatory, they are*resumed to be false and the burden of *roof then shifts to the defendant #to *roveotherwise%. Also im*ortant to remember that the tort does not require any *roof ofintention #and so is in effect a tort of strict liability%.

6lso: m*ortant to note that the tort of defamation is unusual in that it continues tomake use of civil )uries. According to #olomon#*age J%, this is )ustified on twomain grounds:

%&' 9el*s to guard against the *ros*ect of indirect censorshi* by the state #wherethe *laintiff is a *ublic official%K and

%(' s necessary given that defamation actions frequently demand somereference to community standards and the question of whether thedefendants remarks would have damaged the *laintiffs re*utation Din the

eyes of a reasonable *erson.F

#$% !efamatory material

Basic rule" Three ways in which the defendant can establish that the material in question isdefamatory:

#i% Allege that the statements were defamatory in the *lain and ordinarysense #i.e. by reference to their literal meaning%.

%ii' 8y reference to e$traneous circumstances #i.e. matters beyond the*ublication% that are known to those receiving the *ublication and whichwould give it a defamatory meaning.

*ote: n essence, the *laintiff is seeking to establish that thestatement is defamatory by on the basis of Dlegal innuendoF#also referred to as Dtrue innuendoF%

9!ample"A statement referring to N as the *laintiffs girlfriend#when it is well4known that the *laintiff is married%would be defamatory by way of legal innuendo.

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%iii' 8y establishing that an ordinary *erson would infer a defamatory meaningfrom the remarks or statement, even without s*ecial knowledge of the*laintiff or their circumstances.

*ote: This is referred to as Dfalse innuendoF

A good e$am*le of false innuendo can be found in the case of Sim v. StretchF&A)>4J% that the anadian courts haveessentially re*laced the right thinking *erson test with an ordinary *ersontest. Infortunately, he doesnt offer much in the way of authority for thisargument #other than the 1ntario ourt of A**eal decision in "olor Aour6orld "orp. %&AA@'%.

*ow: There are a number of key *oints to kee* in mind when considering whether the material isdefamatory:

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ourt will look at both the conte$t of the words and the mode of *ublication. According to#olomon#*age JC%, the courts will normally focus on the *ublication as a whole, ratherthan focus on isolated *ages #see: Slim v. 7aily Tele3raph td.F&A

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%;' onsent

"ote that in each case, the burden of *roof is on the defendantto establish the defence #on abalance of *robabilities%.

#$% Austication

Basic 0ule" The defendant will have a defence of )ustification #com*lete defence% if they canshow that the statements, although defamatory, were true.

*ote" Gey here is that the defendant must be able to show that the Dwhole of thedefamatory matter is substantially trueF #(eier v. Klot4%&A(@'%.

6lso: oesnt matter if the defendant acted maliciously or there was no*ublic interest at stake ! intention isnt relevant to the o*eration ofthe )ustification defence.

#&% "bsolute priilege

Basic 0ule" The defendant will have a defence of absolute *rivilege #com*lete defence% ifthey can show that the statements feel into one of three *rotected categories:

#i% (tatement by an e$ecutive officer relating to affairs of the stateK

%ii' (tatement made during *arliamentary *roceedingsK or

%iii' (tatement made in the course of a )udicial or quasi4)udicial *roceeding .

#(% 4ualied priilege

Basic 0ule" The defendant will have a defence of qualified *rivilege #com*lete defence% ifthey can show that they had a moral, social or legal duty to make the statement.

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According to #olomon#*age JC

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*ote: "o need to actually show that the comments were actually fair. nstead, the focus isoften on the question of whether the defendant made the comments honestly and ingood faith.

/e+ Case" "hernes0ey v. 2rmadale ;ublishers td.F&AAG

$eld: The defence of fair comment was unavailable as the editors did notagree with the o*inion e$*ressed in the letter, and there was noevidence to suggest that the authors of the letter submitted it ingood faith.

*ote" n dissent, ickson P. argued that it was unrealistic to e$*ectnews*a*ers to only *ublish o*inions they agree with, and

that im*osing such a requirement could have a negativeeffect on the Dfree and general discussion of *ublic matters.F

#7% Consent

Basic 0ule" The defendant will have a defence of consent #com*lete defence% if they canshow that the statements originated with the *laintiff, or by someone acting on

the *laintiffs behalf.

6lso" efence will a**ly if the statements were made in res*onse to the *laintiff#i.e. where they were instigated by the *laintiff%.