TORTS OUTLINE by xro92584

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									 TORTS OUTLINE

McLAREN FALL 2002




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                                    TORTS OUTLINE


PART ONE: INTRODUCTION TO TORTS LAW

1. Distinguishing Crime/Tort

Tort = action against indiv/group; aim is to compensate victim
Crime = action against society; aim is to punish offender

2. Theories of Torts: Moralist v Instrumental

Moralist – torts are just about indiv disputes and the moral imperative to give redress
Instrumental – torts have objectives beyond the immediate dispute (ie deterrence)

3. Distinguishing Civil Wrongs – Different Types of Civil Liability

Norberg v Wynrib (1992 – SCC)
-3 sets of judges came to 3 different decisions, based on 3 different types of civil wrongs
        1. Tort of battery (no valid consent)
        2. Breach of fiduciary duty (doc-patient relationship)
        3. Breach of K and tort of negligence (k‟d to get treatment for patient – breach
             and negligence in not doing it)

4. Comparative Compensation Systems

-the options for compensation available to a wronged person depend on the circumstances
        -ie WBC if you‟re at work
        -while something looks like a tort, it may not be if there is another compensation
        scheme lurking in the background
-many compensation systems other than torts
        -medicare, EI, social assistance, private insurance, etc.

5. The Practice of Compensation Law

-Torts cases will always have to assess the conduct of the defendant
        -it is the Δ‟s fault that the π was wronged
        -instead of asking „is it his fault,‟ we ask if the Δ departed from the standard of
        care that a reasonable person would have exercised in the circumstances

Bolton v Stone (1951 – House of Lords)
-case about woman hit with cricket ball on road outside cricket pitch
-held: Δ not negligent
-ratio: not all risk can be avoided in modern life. Test „fault‟ by asking if a reasonable
person in the situation would have taken steps to avoid the risk




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6. Roots of Torts Law

Registrium Brevium: disturbing the king‟s peace; prevent reciprocal violence; deterrence
Farrier‟s Case: plead on the case: non-violent actions resulting in a wrong

Trespass vs Case
14thC: forcible/violent conduct vs nonforceable/nonviolent conduct
18thC: direct/indirect causation of harm
        - Reynold‟s case: throwing log onto highway
19thC: intentional vs negligent

Liability: strict causal vs fault
14thC: causal liability
18thC: causal liability, with some exceptions
        - ie unavoidable accident, not my act, π‟s fault
19thC: liability by fault
modern: liability distinguished between intentional harm and negligent harm

Cases not fitting nicely between intentional and negligent
1. unlawfulness: illegal per se
         - I think I‟m on my land, actually on your land
         - liable because of importance of property rights
2. strict liability
         - an activity dangerous enough that even if I take all reasonable precautions, I‟m
         still liable if something goes wrong

4 kinds of modern torts
1. intentional                        3. unlawfulness
2. negligence                         4. strict liability


Why is direct/indirect bad?
- assault: can‟t sue for indirect assaults, even if the threat is to do a direct battery
        - direct threats = create reas apprehension of imminent and direct bodily contact
                 - can be thru words, actions, or a combo
                 “I‟m going to shoot you when you step outside”
        - threats of indirect contact is not an assault
                 “there is a spring gun set up to shoot you when you step outside”




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PART TWO: INTENTIONAL INJURY TO PERSON – SECURITY AND
DIGNITY


1. Historical Context of Intentional Torts: Direct v Indirect Harm

- due to the direct/indirect distinction (residual from trespass/case distinction), we in
canada do not only need to prove intention… we also need to prove direct/indirect
causation of harm

Goshen v Larin (1974 – Nova Scotia)
-facts: wrestling referee leaving ring with arm protecting face; unknowingly strikes ptf
-claim: battery (trespass to the person – can be intentional or negligent)
-refers to Cook v Lewis (SCC) distinction between direct and indirect contact
-held: yes direct contact, but Δ proved it was neither intentional nor negligent – just
accident
-ratio: in canada, π has onus to prove direct contact; then Δ has onus to disprove
intent and negligence

Justification and Critiques of Shift in Onus (authority: Scalera)
1. sanctity of right to security of person: the shift in onus is the price one pays for
engaging in dangerous activity
         BUT-why not just impose strict liability like the USA? You do it, you‟re liable.
2. shift in onus helps to smoke out evidence – def did action, he should have to justify it
         authority: Bell Canada v Cope
         BUT-in case of negligence, may be equally difficult for def to find evidence
3. torts are about compensating injuries to victim – ought not to cause further
demoralization




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2. Classes of Fault: Intentional, Reckless, Negligent, or Accidental?

intentional ------- reckless ------- negligent -------- accidental
   (high probability of harm  low probability of harm)

Intentional: actual; constructive; transferred
        -intent = desire to cause consequences or consequences substantially certain
                (source: Restatement of Torts, 2d)
        -actual intent: you desire the consequences
        -constructive intention: consequences sufficiently likely to follow from actions
                -Garrat v Daily – case where kid pulls chair out from under old lady
        -transferred intent: your intentional act has unintended consequences or victims
                -Carnes v Thompson – T hits C‟s wife with pliers instead of C
                        -this could also be called negligence or constructive intent
                -Bettel v Yim – storeowner shakes punk, accidently breaks his nose

        -Rule on Remoteness of Damages from intentional acts: you are responsible for
        all the intended and unintended consequences of your intentional act
                 -Bettel v Yim

        -Mistake is not a defence in intentional torts
        -if you intended the act, cannot claim that the consequences were mistakes
                -Basely v Clarkson – case where guy mows neighbours grass, but thought
                he was moving his own grass – guilty of trespass
                -shows huge value placed on land rights – reflected today in Costello v
                Calgary
                -Ranson v Kitner -liable for shooting dog even though thought it was a
                wolf
                -Gerula v Flores –doc operated on wrong spinal disc – battery because
                intentionally operated on that disc without consent to


Reckless: intentional b/c knew about possible consequences; negligent b/c did action
anyway
       -usually bumped up to “intentional”

Negligent: def ought to have reasonably foreseen consequences of his actions and
avoided them
       -def only liable for reasonably foreseeable consequences

Accident: consequences were not reasonably foreseeable or reasonably preventable

Strict Liability: even though the action was carried out with the utmost care, the inherent
dangerousness of the activity makes the do-er liable for any consequences
        -ie nuisance, defamation




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3. Battery

Pithy Definition of Battery:
Direct harmful or offensive contact with the body of another or contact that interferes
with the autonomy of that other. Fault is assumed if causal link is established

Elements of Battery:
      1. harmful or offensive contact; or contact interfering with another‟s autonomy
      2. contact must be direct, not indirect (cdn rule)
      3. assume fault on part of def unless he can prove that he did not intend the
          harm/interference and he was not negligent

Definition of Battery – Cole v Turner (1705 Engl)
        Actions included in battery:
        -least touching of another in anger
        -using violence in a forcing way
        -struggling with another to do hurt

        Actions not included in battery:
        -gently touching as you pass someone
        -touching that is expected in ordinary life in a crowded world

Purposes of Tort of Battery
-to protect physical security of person
-to protect dignity
        -Stewart v Stonehouse – def grabbed ptfs nose
        -Alcorn v Mitchell – def spat in ptfs face
-to protect autonomy
        -Gerula v Flores – patient did not consent to doc‟s actions
        -Scalera – issues of consent and lack of autonomy in sexual battery
        -Mink v U Chicago – women did not consent to administration of drug
-to avoid violent retaliation
        -Alcorn v Mitchell – spitting provokes retaliation – violence is only redress

Negligent Battery
- Δ, thru negligent conduct, causes direct, offensive, physical contact with π
        - Cook v Lewis, Dalhburg v Naydiuk (hunter shot man)
- procedural advantage for π: if π proves contact, onus shifts to Δ to prove no fault

Elements not required to claim tort of battery
   1. no need to touching the body
   2. don‟t need intent to injure
                -Bettel v Yim – def is liable for unintended consequences of intended acts, even
                if consequences were not foreseeable
   3. π need not be aware of battery at time it occurred (ie asleep)
   4. no physical harm need be done
                -Mink v U Chicago – no physical harm done to ptfs, but it was offensive contact



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Remoteness of damages from battery
-Δ liable for unintended consequences of intentional act – Bettel v Yim
-Δ liable for all consequences that flowed directly from the act
        -unclear on defs liability for the harm that a 3rd party was able to cause the ptf due
        to the actions of the def
        - amount of damages will be assessed in relation to degree of responsibility
        - cts have opted for more limited scopes of remoteness: Mayfair Ltd. v. Pears
        - must consider social policy when assigning damages

Usefulness of Battery:
-a battery action may lie where other causes of action are unavailable
        -Mink v. U Chicago: no basis for products liability or negligent failure to inform
        because the harm was not done to the women, but to their children
        BUT is battery because no consent for the drug treatment, which was considered
        contact with their persons
                -no consent = battery
                -consent that wasn‟t fully informed = negligence




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4. Assault

Pithy Definition of Assault:
Direct threat of harmful or offensive contact with the body of another or a contact that interferes
with that person's autonomy that causes imminent apprehension of contact, i.e. a reasonable
perception by the person claiming to have been threatened that there is both an intention and the
capacity to produce immediate contact. Fault is assumed if causal link is established.

Sources of Elements of Assault:
- an attempted battery can be an assault; no contact necessary (I de S. and Wife)
- assault is an independent tort because harm is done (I de S. and Wife)
- does not need to be physical harm done (I de S. and Wife)
- must be intention to cause harmful of offensive contact or imminent apprehension of the same
(Restatement 2d, s.21) (ie can be negligent also)
- imminent apprehension must be present (Restatement) (apprehension not = fear)
- π must be aware of the threat
- possible addition: "or intention to interfere with the autonomy of another" (Restatement)
- must have means of carrying out the threat (Stephens v Myers)
          - must have immediacy in both time and place
          - ie must be advancing with intent to cause harm, and imminently capable of it
- it is sufficient that the π reas believes that the threat will be carried out (Bruce v Dyer)
          -even if def had no intent to threaten or harm the ptf, it is assault if the defs actions led
          the ptf to reasonably believe she was threatened
- actionable without proof of harm (b/c a trespass action)

Interest Protected by Tort of Assault
- freedom from interference with emotional and psychological welfare
- personal security
-dignity
-autonomy
 this focus on emotional and psychological harm is why the perceptions of the victim are so NB

Violence as an acceptable response to assault
- The person may use a preemptive blow in self-defence if is is reasonably proportional to the
threat posed (Bruce v Dyer)

Conditional Threats
- ie „your wallet or your life‟
- this is an assault if the def had no authority to make such a demand
- the menace and apprehension caused by words would almost certainly be a threat


Transferred Intent / Consequences
- a def is liable for the unintended consequenses of the assault (Bettel v. Yim)

Alternative to Assault
A P who is at the time of the threat unconscious or physically beyond the range of harm will not
have an action in assault but may sue in intentional indirect causation of harm (Wilkinson v.
Downton) if she satisfies the requirements of that tort.




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5. False Imprisonment

Definition
Direct detention or confinement of another within the physical or perceptual boundaries
created by the detainer/confiner, without legal authority. Fault on the part of the def is
assumed.

Nature of False Imprisonment:
- total confinement within set boundary (Bird v Jones)
- requires restraint by another (Bird v Jones)
- mere obstruction is not enough if you have a recourse (Bird v Jones)
- imprisonment if you have a means of escape that would bring danger/humiliation etc
(Bird v Jones)
- where defs conduct creates impression in ptfs mind that she is being detained, it is
psych imp., even if actions were ambiguous (Chaytor)
- with psych imp, the availability of an exit is irrelevant because ptf doesn‟t feel she can
use exit (Chaytor)
- false = without legal authority (actually a defense: ptf need only prove imprisonment)
- can (likely) have FI without knowledge on part of ptf (ie unconscious)
- can have FI within a prison: solitary confinement (Hill v. BC)

Nolan v Toronto Police
   - false imprisonment: clearly he was the wrong man, and was detained due to racist
       attitudes about his being aboriginal. Furthermore, their neglect of proper
       procedure kept him imprisoned when he should have been quickly and easily
       cleared. Cts send message that this is unacceptable police behaviour.

Alternatives to FI:
- if a partial obstuction causes damage, try negligence or public nuisance




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6. Intentional Indirect Infliction of Harm

Definition:
Intentional indirect infliction of physical or mental harm to person of another by conduct
or words.

Nature of IIIH – from leading case Wilkinson v Downton
- intent to cause severe physical/mental impact (can be constructed intent)
- outrageous or extreme conduct
- must have caused physical harm
- was once required proven physical or definable mental injury, with medical evidence
but this is doubted now (Nolan: accepted testimony)
- burden of proof: ptf must prove causation and fault (ie must prove def‟s intent to harm)
         - unfair: same rationales as with direct torts to have shifted burden of proof
- can be an accumulation of incidents, rather than a single incident (Clark v R)
- must have reasonable person standard (ie how much would a reas person freak out)

Uses in today‟s society: offensive communications that aren‟t otherwise actionable
- discrimination
- sexual harassment, stalking

Bird v. Holbrook (spring gun case)
- IIIH: - intent to harm
        - caused physical harm




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7. Protecting Ethnic Dignity

- there is a place for racist attacks on dignity in torts, even if it has to be done through
existing torts

Fisher v Carrousel Motor Hotel (texas 1967)
- court uses battery as indirect way to compensate for attack to ethnic dignity
- creativity on part of courts because no other way to recognize non-violent racist attacks
- real recognition of racist behavior was in the damages: big pec damages and punitive

Nolan v Toronto Police
- judge makes strong statements about the racist nature of the officer‟s actions
        - was falsely imprisoned because aboriginal
        - IIIH: police used insulting, derogatory language
- Nolan stayed silent because used to systemic racism, wasn‟t able to fight police




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8. Sexual Wrongdoing and Intrusion
- historically, law has failed to protect women and children from sexual assault
         - partriarchal assumtions of women‟s morality and autonomy; public vs private
         - Latter v Braddel (1851) – servant examined – no battery because consented
                  - doesn‟t recognize her inability to withhold consent – power imbalance
         - Hegarty v Shine (1878) – woman gets VD from her affair partner
                  - ct won‟t compensate for consequences of immoral behaviour
- recently, more sexual battery cases
         - cts more receptive
         - feminist lawyers
         - survivors demanding recognition and compensation
         - public recognition of the extent of the problem
- advantages and disadvantages of civil vs criminal actions for sexual battery
         - emotional, financial burdens and rewards
         - neither recognizes the systemic nature of sexual abuse
- different views in society about nature of sexual contact – reflected in Scalera
         - majority sees sexual touching just like other batteries – offensive, not common
         everyday incidental touching; Δ should have onus to prove consent
         - dissent: π must prove lack of consent in order to prove touching was harmful

Sexual Assault within families

K(M) v H(M)
- π has choice of actions – can bring either battery or breach of fiduciary duty, or both
- conditions for recognition of fiduciary duty: power in fiduciary that can be exercised
unilaterally over the beneficiary with potentially adverse effects because of vulnerablity
of the latter
- discovery pple: limitation period delayed until π can understand wrongfulness of Δs
conduct and make the causal link to her suffering

J(LA) v J(H) (1993)
- blame shifting to the non-abusive parent: suing mom for breach of fiduciary duty
- problems: spouse may have been abused herself; may have been powerless or under
threat; could have been sexually abused as a child; takes focus off the real abuser
- benefits: may reflect π‟s anger; may provide access to assets for damages

M(M) v F(R) (1997)
- Courts will not recognize blame shifting if the other spouse is “3rd partied” by abuser
- spouse will only be held liable if π makes the claim
       - breach of fiduciary duty has high objective standard – must be really bad
       behaviour by spouse to find her liable
       - also possible in negligence – lower standard, Δ has onus to prove not negligent




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Sexual Assault in a professional context

Norberg v Wynrib
- majority does not create a general fidicuary relationship between doctors and patients
        - says in this circ, consent was invalid (power imbalance b/w doc and patient)
        - treats the problem as situational
- dissent (female judges) – there is a fidicuary duty between docs and patients
        - satisfies criteria for fid rltnsp from K(M) v H(M)
        - treats the problems as systemic/structural

Problems with Damages in Sexual Assault Cases
- damages mostly for non-pecuniary harm
        - problematic because no monetary values intuitively obvious
- also pecuniary damages: ie lost income
        - problematic because courts lowball women‟s pecuniary losses
- judges often can‟t appreciate the gravity of the situation
        - if π can‟t present herself well, worth less $; if she‟s too well, doesn‟t need $
- there should be a sum paid for the fact of sexual battery
        - such a great interference with autonomy and dignity of person
        - other areas of law have damages paid on the facts: ie defamation


Sexual Harassment
Clark v Canada (RCMP)
- intentional torts can be used to nail sexual harassers where conduct falls short of battery
or assault (ie stalking)
- here, IIIH was used

Inexcusable State Action
Muir v Alberta
- can use intentional/trespassory torts for inexcusable actions by state/institutions
- got around the retroactivity rule b/c even by law of the day, she was wrongly treated

Delmerson v Ontario
- incorrigable female locked up because pregnant with chinese fiancee‟s child
- potential problems:
        - retroactivity
        - limitations
        - govt looking to keep floodgates from busting open




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9. A Tort of Discrimination?
- instead of trying to piece together an existing tort out of facts of racist/sexist attacks,
why not just have a tort of discrimination?


Jane Doe v Toronto Police (1998)
- police don‟t warn public about serial rapist because think women will panic and scare
rapist away so police can‟t catch him
- jane doe is predictably raped: sues police for failure in duty
- held: police didn‟t warn on the basis of discrimination of women
        - conflicts with s.15 of charter: equal protection of law
        - also s.7 violation: placed her security at risk
        - no s.1 justification
- suggests there could be a constitutional tort, where an agent of the state breaches charter
and harm/impacts a citizen. S.24(1) is the tort remedy.

Bhadauria (1979/1981)
Ontario Court of Appeal
       - there is a CL tort of discrimination
       - public policy: protection against discrimination in Human Rights Code
       - Ashby v White (1703): where there is a right, there must be a remedy
SCC – kills the tort of discrim!
       - there is a remedy existing under the Human Rights Code: administrative tribunal
       - courts are for appeals from the administrative tribunals – not first line
       - legislative intent to make admin tribunal the exclusive route

Developments since Bhadauria:
- HuRts commissions haven‟t worked well – delays, conflicts of interest, etc
- many problems don‟t fit into the existing torts – courts may be more willing to
recognize today than they were before
- existence of charter puts on the pressure for a tort of discrimination


BC Civil Rights Protection Act
- provides a statutory tort of discrimination
- makes it unnecessary to fit wrong into an existing CL tort
- created due to concerns about KKK activites in early 1980s
- elements of tort:
        - tort is the "prohibited act" - conduct or communication promoting:                 a)
                - hatred or contempt of person or class, or
                 - superiority or inferiority of a person or class,
                 - On basis of colour, race, religion, ethnic origin or place of origin (s. 1).
        - actionable without proof of damage s. 2(1)
        - provision for corporate and individual responsibility where corporation or society
        responsible for prohibited conduct or communication s. 2(2,3)
        - remedies include: damages, exemplary damages and injunctive relief s. 4




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CRPA seldom used:
Brochu v Nelson [1986] BCJ No. 998
- π claimed Δ made racially discriminatory remarks
- held for Δ: π didn‟t prove on balance of probs that remarks had been made

R v Garbara [1997] BCJ No. 3090
- Δ assaulted π, racially motivated
- ct didn‟t apply BCCRPA… said it indicated how seriously society takes racism

Why hasn‟t CRPA been used more?
1. Concerns about charter challenges under s.2(b) freedom of expression
        - after R v Keegstra, unlikely to succeed
2. Lost in maze of Charter litigation and anti-discriminatory legislation in past 20 years -
statutory torts few and far between
3. most egregious offenders (ie KKK) often hard to find and prosecute




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11. Justifications and Defences

1. Consent
- consent can be expressed or implied
- conduct can imply consent
- O’Brien v Cunard
       - servant girl given medical examination to see if she‟s pregnant
       - cried etc, but couldn‟t refuse: power imbalance
       - no battery because ruled that she consented

2. Not Δ‟s Act
Smith v Stone (1647)
- Δ picked up by men, dropped onto π‟s land
- held for Δ: was not Δ‟s trespass, was the other men‟s trespass
- same if a 3rd party used my arm to touch another in a harmful/offensive way

Gilbert v Stone (1648)
- Δ forced by gang of armed men to go onto π‟s land and steal a horse
- held for π: the Δ consciously did the act, intended to do the act
- doesn‟t matter if Δ didn‟t want to do it, he still did the act and π deserved comp.
- same if Δ touched another under threat by a 3rd party

3. Liability of Children
Tillander v Gosselin (1967)
- 3 yr old drags baby along ground, fractures skull, brain damage
- not negligence: infant couldn‟t know duty to take reas care in circumstances
- not crim: statute: under 7 can‟t appreciate nature, consequences, wrong (now 12)
- not battery: infant can‟t appreciate nature of the act
        - no genuine intent to cause harm
        - uses mental incapacity test: can Δ appreciate nature and consequences of act?

4. Mental Incapacity
Gerigs v Rose (1979)
- cop π checks out report that someone is being threatened with gun; Δ shoots cop
- Δ pleads mental incapacity – loses.
- test for mental incapacity in civil liability: nature and consequences
         - crim test is nature and quality, but that has a moral dimension – not for torts




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5. Self Defence
Elements:
a) attack or apprehended attack or reas belief of attack
         - Macdonald v Hees: not reas grounds to believe attack

b) potential victim must act immediately to protect himself
- no retaliation (Cockcroft v Smith)
- no responding to provocation with force (Evans v Bradburn)

c) must be measured, proportionate response
         - Cockcroft v Smith, McNeil v Hill
- doesn‟t have to be measured with nicety: can be slightly more force than necessary
         - Gambriell v Caparelli
- can kill in self defense only if its it kill or be killed. Must retreat if have the chance.
         - do not have to retreat if attack is in your house

d) onus is on the Δ to prove i) defence action warranted ii) force not excessive
        - Mann v Balaban

e) criminal code buttresses self defence (see def of 3rd persons)

6. Defence of Third Person
- similar elements to self defence
- Gambriell v Caparelli: woman thinks man is attacking her son, hits him with pitchfork
         - held for Δ because reas belief, reas force used (considering power imbalance)
- self defense and 3rd person defence buttressed by Criminal Code s.27 and s.37(1), leeway in
using defensive force

7. Defence of Property
- 1st must ask trespassor to leave, then if they refuse you can forcibly eject them
- if they come on with force and violence, can take immediate defensive action
         - Green v Goddard
- no retaliation, no justified injury after the threat is over
         - Bigcharles v Merkel
- cannot use indiscriminate machines/devices/animals of death, even if give notice
         - Bird v Holbrook, Criminal Code s.247(1)
- can use non-deadly protective devices (ie geese, barking dog, barbed wire)

8. Defence of Duress
- this has been successful in SOME Cdn trespass actions
         - Alberta case: road blocked by blizzard, drove on π‟s land to meet road ahead
- „social necessity‟ not accepted (ie squatters)
- not a defence if you kill someone because 3rd party said they‟d kill you if you didn‟t
         - also not a defence in crim law
- R v Dudley and Stephens (1880s/1890s)
         - shipwreck, men floating at sea, kill youngest and eat him
         - clash of land law and sea customs (men would draw lots to see who is lunch)
         - charged with murder – no defence of necessity even if the choice is between one
         dying and all dying




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12. Vicarious Liability

Purpose: To shift the burden of paying compensation for tortious conduct from the
tortfeasor, to a party who is in law responsible for the former's actions thereby providing
a viable source of payment to the victim of the tortious act

- the tortfeasor must be found at fault for vicarious liability to operate
- the liability of the employer or principal is strict, i.e. without fault

Justifications:
1. control exercise by employer/principal over employee/agent's work
2. cost internalization: employer/principal who takes benefits of employee/agent's work
should by the same token absorb losses caused by the latter
3. deterrence: induces employer/principal to use safe practices
4. long pockets: employer/principal in better position to pay and better loss spreader

VL Relationships
1. Employer / Employee
2. Principal / Agent
        - agent represents ppal for econ/social purposes
        - agent can be employee or independent contractor; but ppal V.L. regardless

No VL Relationships
- employer / independent contractor
- parent / child
- bailor / bailee
- trustee / beneficiary

How to distinguish Employees from Independent Contractors
1. Control test (traditional)
      - does tortfeasor work under the direct control and supervision of an employer?
               - who directs as to what, how, when and where work is to be done?
               - labouring and service jobs where employees act according to orders,
               directions and policies with little room for discretion or judgement.
      - by contrast independent contractors are those who are linked by contract and
      their terms rather than by control to the employer
               - skilled trades people and business and professional service providers

2. Control Test (modern updates)
       - loosened test: more applicable to modern, highly skilled economy
       - focus on supervisory aspect of control test: what, where, when work is done
       - consideration of factors such as: whose tools and facilities used; mode of
       payment (wage/salary or other such as commission, lump sum payment); freedom
       of individual to make a profit on own account




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3. Organization Test
       - how far is tortfeasor integrated into employer‟s organization/business
       - look to how business functions are organized, and how tortfeasor fits into org
       - ie consider employer's promoting, marketing, selling and servicing practices

Other unconventional employment relationships

1. volunteers: the organization will be VL for a volunteer‟s torts
       - remuneration not essential, as long as there is control

2. secondment (borrowed servants): which employer is liable for torts?
       - weak presumption that original employer remains VL
       - determine which employer has control: who pays wages, whose tools/facilities
       are used, who has power of dismissal, nature and duration of secondment
       - Mersey Docks & Harbour Board v Coggins & Griffiths
               - Δ hired out crane and operator
               - found original employer VL, not borrowing employer
               - borrower had no control over manner of operation, nor over operator

3. dual employers (partnerships): partners will be jointly and severally liable
        - in law, tortfeasor is employed separately by each employer
        - ie church and state both liable for abuse in residential schools
        - WCB v Plint (alberni residential school)
                - control test: church and govt had a partnership; mutual benefit
                - organization test: both parties‟ „business‟ was running school

„Course of Employment‟ Test

- when will employer be VL for torts of employee?
       - if employee is acting in course of employment
       - if employee is acting in the interest of the employer
       - any acts broadly incidental or related to employment function

- if employee is in the course of employment but carrying out his duties in an
unauthorized way, the employer IS VL
- express prohibitions about manner of work do not insulate employer
(prohibitions of nature or sphere of employment tasks do insulate employer)
        - CPR v Lockhart: job was to drive around to sites; rules against driving an
        uninsured vehicle; employee drives own uninsured car and gets in accident
        - employer VL: authorized function, in unauthorized fashion
        - in course of employment, working in employer‟s interest

- if employee is off on his own frolic, not in course of employment/duties, NOT VL
        - ie in CPR v Lockhart, if employee had taken a detour to see his girlfriend, and
        got into an accident then, employer would NOT be VL, because on own frolic




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Intentional Torts: Employer Still VL!

- traditional view: unfair to hold employer VL for intentional torts of employees
- modern view: employer VL if the employee was acting in the course of employment
         - employer NOT VL if employee off on own frolic
- ie bar bouncer: if he gets too rough and hits a patron, the employer is VL
         - if he‟s on a personal vendetta and hits a patron, on own frolic – employer not VL
- examples where employer VL: employee stole customer‟s property; security guard
arsoned building he was guarding; committed fraud for own personal benefit


Sexual Assault

- course of employment test is too broad; employers would never be liable because
employees would always be „on their own frolic‟

Test: business enterprise test (Bazely v Curry)
1. is there a binding or persuasive authority? (case law)
2. would VL serve the policy concerns?
         a. would VL serve a deterrent function?
         b. fair and just to impose VL on employer?
         - does the employer‟s enterprise materially increase the risk of sexual assault?
         - sufficient connection between employment relationship and the sexual assault?
                  a. opportunity afforded by the enterprise for employee to abuse his power
                  b. extent to which wrongful act may have furthered the employer's aims
                  c. extent to which wrongful act is related to friction, controversy or
                  intimacy inherent in the enterprise
                  d. extent of power conferred on employee vis-a-vis the victim
                  e. vulnerability of potential victim to wrongful exercise of that power

- #2 is better left out of analysis: Griffiths v Jacobi

- non-profit organizations are not immune from VL on sexual assault (Bazely)
       - but this may be considered where there is a split court, uncertainty about
       the appropriateness of VL in a borderline case (Jacobi)

Bazely:
- residential facility for emotionally troubled kids; staff assume intimate parental roles
- employer VL because enterprise materially increases risk of abuse by authorizing role

Jacobi:
- director for boys and girls club, ran after-school programs; role of buddy/mentor;
assaults occurred after hours at director‟s own home
- majority: Binnie J: no VL on employer
        - different kind of relationship authorized by employer than Bazely
        - concern for burden on non-profit organizations for kids



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- minority: McLachlin J: yes, VL
       - responsible for care and protection of vulnerable kids
       - role gave him power and influence over kids, and ability to develop intimate and
       trusting relationships
       - thus, significantly increased risk of sexual assault


Principal and Agent
- agent is a representative of principal for legal / social / economic purposes
- agent can be an employee or independent contractors, but principal still VL
- if agent is employee, can use the course of employment test (broader)
- if agent is independent contractor: scope of actual / apparent authority to act for
principal, granted by principal (apparent: how 3rd party would percieve agent‟s authority)
- if fraud: test: was agent provided with opportunity to decieve / defraud the 3rd party
         - did principal give agent the sufficient authority, etc.


Statutory VL for Owners of Motor Vehicles
- owner VL for those people driving vehicle because has ultimate control over vehicle
and liability insurance
        - employees, family members, anyone else driving with consent


Independent Contractors
- generally, employer not VL
- duties of employer:
        - care in selecting and hiring IC
        - care in supervising IC to a reasonable extent
- maybe liable if directs IC to do an illegal task


Non Delegable Duty

- makes the employer liable for the torts of an independent contractor
- can delegate the function, not the legal responsibility/duty
- employer has a duty to ensure independent contractor uses proper care in its functions
- VL for wrongful acts in performance of task IC hired to do
- NOT VL for collateral or causal acts of negligence
        - must be discrete and severable from assigned tasks to escape VL

- factors: relationship between employer and IC; nature of duty of care; circumstances; a
special higher obligation on the employer
- examples:
        - duties of care for hazardous activities (ie fire)
        - strict statutory duties to perform a positive act
        - duty not to create nuisance



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Example: duties of care arising from exercise of statutory powers (government)

- road maintenance: Lewis v BC
        - BC hires IC to remove protruding rocks from cliff above highway; negligent
        work; rock that ought to have been removed fell onto highway, killed motorist
        - BC had duty to maintain highway, thru exercise of statutory powers
        - BC had ultimate power, control, authority to maintain highway
        - public depends on and reasonably expects government to maintain highway

- expansion to other situations
       - M.C. v BC (2001): safety of children in government/foster/institutional care
               - crown owes duty of care to kids in its custody/guardianship
               - kids are vulnerable and dependent on crown

       - maybe hospitals: ensure skill and care exercised in treatment of patients
             - patients vulnerable and dependent on hospital
             - patients reas expect hospital to be responsible for their care

       - maybe school boards for student safety

Liability of Employee Tortfeasor:
- not erased by VL
- doctrine of indemnification: employer can seek reinbursement from tortfeasor
- joint tortfeasors: can sue each other under apportionment legislation
- in practice, employer rarely seeks reimbursement
- uncertain whether employee liable when made a negligent misrepresentation leading to
economic loss (Edgeworth Construction)


Direct Liability of Employer / Principal
- breach of personal duty owed to π
- authorized / instigated tortious act
- failed to train / supervise employee
- asked employee to do tasks beyond his ability
- negligent hiring




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