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BATTERY

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					                                     BATTERY
DEFN:
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
    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 (onus shift)


CLASSIC DEFN: Cole v Turner
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


RULES
- no need to touching the body (???)
- Δ liable for unintended consequences of intentional act (Bettel v Yim)
- remoteness: Δ liable for all consequences that flowed directly from the act
- π need not be aware of battery at time it occurred (ie asleep)
- physical harm need not be done (Mink v Chicago)
- can be intentional or negligent (Scalera; Cook v Lewis, Dahlberg v. Naydiuk)


PURPOSES
- 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
                                       ASSAULT

DEFINITION
1. direct threat of harmful or offensive contact with the body of another or a contact that
         interferes with that person's autonomy
2. must be imminent apprehension of contact. (Restatement 2d)
3. must be an intention and the capacity to produce immediate contact (Restatement 2d)
4. fault is assumed if causal link is established.


ELEMENTS

- does not need to be physical harm done (I de S. and Wife)

- must have means of carrying out the threat (Stephens v Myers)

- it is sufficient that the π reas believes that the threat will be carried out (Bruce v Dyer)

- Δ is liable for the unintended consequenses of the assault (Bettel v. Yim)

- may use a preemptive blow in self-defence (Bruce v Dyer)

- if π was not aware of the assault at the time, can try IIIH (Wilkinson v Downton)


PURPOSE
- freedom from emotional and psychological interference: dgnity, autonomy
- personal security


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

DEFINITION
1. direct detention or confinement of another within the physical or perceptual boundaries
2. detainer has no legal authority
3. fault on the part of the def is assumed.


ELEMENTS

- 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)

- if means of escape would bring danger/humiliation, still imprisoned (Chaytor)

- psych: if Δ’s conduct makes π think she is being detained (Chaytor)

- psych: availability of an exit is irrelevant: π doesn’t feel she can use it (Bird v Jones)

- can have FI within a prison: solitary confinement (Hill v. BC)

- Nolan: FI’d because aboriginal
     INTENTIONAL INDIRECT INFLICTION OF HARM

DEFINITION
Intentional indirect infliction of physical or mental harm to another by conduct or words.


ELEMENTS (Wilkinson v Downton)

- outrageous or extreme conduct

- intent to cause severe physical/mental impact (can be constructed intent)

- was once required proven physical or definable mental injury, with medical evidence
but this is doubted now (Nolan: accepted testimony without medical evidence)

- can be an accumulation of incidents, rather than a single incident (Clark v Canada)

- objective reasonable person standard: how much would a reasonable person freak out


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


Uses in today’s society:
- offensive communications that aren’t otherwise actionable
        - discrimination
        - sexual harassment, stalking
                                     DEFENCES
CONSENT
- consent can be expressed or implied by conduct (O’Brien v Cunard )

NOT MY ACT
Smith v Stone as opposed to Gilbert v Stone


CHILD Δ
Tillander v Gosselin
- 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?


MENTAL INCAPACITY
Gerigs v Rose
- 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


SELF DEFENCE
      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: ok more force than necessary
                       - Gambriell v Caparelli
              - kill only if its 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


DEFENSE OF 3rd PERSON
- simiar to self defence
- Gambriell v Caparelli
- self defense and 3rd person defence buttressed by Criminal Code s.27 and s.37(1),
leeway in using defensive force
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)



DURESS

R v Dudley and Stephens (shipwreck: duress not accepted as defence)

- this has been successful in SOME Cdn trespass actions

- not a defence if you kill someone because 3rd party said they’d kill you if you didn’t

- ‘social necessity’ not accepted (ie squatters)
                          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


JUSTIFICATIONS
1. control exercise by employer/principal over employee/agent's work
2. cost internalization: party taking benefits should take risks/losses
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 (NOT independent contractors)
2. Principal / Agent
3. Volunteers: organization VL
4. Secondment: must determine which employer has control at time of tort
        - Mersey Docks & Harbour Board v Coggins & Griffiths
5. dual employers: jointly and severably liable (WCB v Plint)



DISTINGUISHING EMPLOYEES FROM INDEPENDENT CONTRACTORS
Control Test
       - does tortfeasor work under the direct control and supervision of an employer?
       - by contrast independent contractors are those who are linked by contract and
       their terms rather than by control to the employer
       - modern focus on supervisory aspect: what, where, when work is done

Organization Test
       - how is tortfeasor integrated into employer’s organization/business


EMPLOYEE / EMPLOYER LIABILITY TEST:
    - if employee is acting in course of employment
    - if employee is acting in the interest of the employer
    - NOT if employee is off on his own frolic


PRINCIPAL / AGENT LIABILITY TEST
     - if employee: course of employment test
     - if I.C.: scope of actual / apparent authority to act for ppal, granted by ppal
     - if fraud: was agent provided with opportunity to decieve / defraud the 3rd party
SEXUAL ASSAULT TEST

- business enterprise test (Bazely v Curry)
- does the employer’s enterprise materially increase the risk of sexual assault occuring?

       1. is there a binding or persuasive authority? (case law)
       2. would VL serve the policy concerns? (bad test: Griffiths v Jacobi)
                - fair and just to impose VL on employer?
                - would VL serve a deterrent function?

        if 1 and 2 are ‘yes,’ then must consider core business enterprise test:

       3. 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

- 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)


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

- special duty on government to ensure safety of public in some situations
        - road maintenance: Lewis v BC

- safety of children in government/foster/institutional care?
        - cts seem to be heading in this direction: M.C. v BC (2001)

				
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