Torts1 Winter Super Can

8/18/2019 Torts1 Winter Super Can

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TORTS WINTER SUPER CAN

PROXIMATE CAUSE

General Principles

General test for Remoteness:

Wagon Mon! No"#: Would a reasonably prudent person in D’s position foresee the probable consequences of the act

in question?Wagon Mon! No"$: Would a reasonably prudent person in D’s position foresee that the harm was a possible

consequence of his act?

T%in S&ll Principle: the test is not whether a reasonably prudent man could foresee the particular harm, but whether

he could foresee the possibility of the type of injury suffered: the amount of damage suffered would depend on the

characteristics of the victim, and D was to take his victims as he found them !mith"

• Wagon Mon! No"# #": furnace oil spilt into the bay and caused a fire" $ man is responsible for the

probable consequences of his act: the test for liability: would a reasonably prudent man foresee the probable

consequences of the act in question?

•

'g%es %": kid climbed down the manhole& a lamp fell in and caused an e'plosion" (t is not necessary thatone foresee the precise concatenation of events& it is enough to fi' liability if one can foresee the general way

the class or character of injury which occurred the manner and state of harm is not important as long as the

harm itself is foreseeale"

• Wagon Mon! No"$ %": oil in water& )s were owners of ships in the wharf which were damaged as a result

of the fire" *est for liability: would a reasonably prudent person in D’s position reasonably foresee that theharm was a possible consequence of his act? here, there was a real risk, and while the circumstances were

e'ceptional, it did not mean that a reasonable man would dismiss such a risk from his mind when it was so

easy to prevent it"

• (olton +" cricket ball" while on the ordinary meaning of the words, the fact that a ball might strike a person

in the road was reasonably foreseeable, the chance of it happening in the foreseeable future was minute, and

the risk was so small that a reasonable person would have been justified in disregarding it

• Smit% +": burnt lip, a premalignant condition, caused cancer" the test is not whether D could reasonably

foresee the possibility of the particular harm death due to cancer" but whether he could foresee the possibility of the type of injury suffered the burn" thin skull rule applied

Acts of T%ir! Parties an! Inter)ening *orces

+t, to resce:

• -o general duty to rescue, but one who attempts a rescue will owe a duty of care to the victim

• $ rescuer may owe a duty of care to a subsequent rescuer if:

a" his attempt to rescue increased or created a new peril, and

b" his negligent attempt induced the %nd rescuer to move in and make the rescue

• .onsider whether the %nd rescuer was contributory negligent

• $ host who has care and control of the premises will owe a duty to rescue /orsley"

W%ere t%ere is a negligent act of + -%ic% cases %arm to P. an! sometime after t%e acci!ent t%ere is a $n! acci!ent

in -%ic% P sffers frt%er in/ries. loo& at -%et%er t%e $n!

in/r, -as a reasona0le conse1ence of +2s originalnegligence. an! also consi!er contri0tor, negligence

• 'arris 0": bus scraped pole& ) had his arm and the window and was crushed" D will not be freed from

liability merely because )’s injury was cause partly by his own negligent act, or the wrongful act of another party 1 if the scope of D’s duty is to protect ) from the very injury that occurred care and control", D cannot

argue that )’s act was an intervening cause the test remains: was the possibility of the general type of

injury reasonably foreseeable to D? d knew the children had a tendency to put their arms out their window

and he could reasonably be e'pected to foresee that such thing could happen in the case of )"

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• 'orsle, 2": rescue attempt on the boat"a host has a duty to rescue a passenger who has fallen off board as

well as a %nd rescuer if his own rescue efforts created a new peril which induced the % nd rescuer to get involved

must find negligence in #st attempt"

• Weilan! 3": ) got neck brace following an accident with D, could not see right and fell" $n injury sustained

in one accident may be the cause of a subsequent injury 1 with regards to foreseeability of harm, the precise

mechanics of the way in which the negligence act resulted in the %nd injury does not need to be foreseeable itis foreseeable that if you injure somebody, you will weaken them and that could cause further injury"

• Mc3e- 3": ) injured by D, lost his balance while descending stairs and tried to leap but fell" $ )’sunreasonable act may constitute a sufficient intervening event to break the chain of causation and free D from

liability here, the act of leaping may have been an error of judgment, but it was not so unreasonable so as to

free D from liability" better way to decide such a case is to apportion liability between negligent parties

Inter)ening Me!ical Error:

Normall,. -%ere + cases in/r, to P an! -%ere P emplo,s a competent !octor. t%en + -ill 0e lia0le for frt%er

!amage case! 0, t%e !octor2s me!ical errors nless + can !emonstrate t%at t%e !octor2s actions amonte! to

gross negligence 4Mercer. Papp. T%omson. 3olesar5

• Mercer 4": (f reasonable care is used to employ a competent physician to treat personal injuries wrongly

afflicted, the result of the treatment, even though by an error of treatment the treatment is unsuccessful,

cannot give rise to an action against the physician unless the treatment is so negligent so as to be actionable"

• Papp 4": a tortfeasor must assume the inherent risks of complications, bona fide medical error ormisadventure such risks are reasonable and not too remote" onus is on D to prove that some new act

rendering another person liable intervening medical error" has broken the chain of causation

• T%omson 5": Where a doctor is employed to deal with an injury caused by a tortfeasor, an additional harm

resulting from the doctor’s mistake or negligence is considered one of the elements of the damages for whichthe original wrongdoer was liable unless there is proof of gross negligence on the part of the doctor"

• 3olesar 5": an original D might be responsible for the later negligence of a doctor or hospital which

aggravated )’s injury unless it is completely outside the range of normal e'perience gross negligence"

• Price 5": one negligent doctor could be liable for additional loss caused by another doctor’s negligence

Sici!e 4-%ere A commits sici!e as a reslt of !epression follo-ing an in/r, case! 0, (2s negligence5:

• (f the suicide was the deliberate choice of a sane individual, then the decision to commit suicide may be looked

upon as an intervening act

• (f $ is legally insane, then 6 may still be found liable

• *he courts have made a value judgment that suicide is not a reasonable response to pain and suffering

Interme!iate Inspection

W%ere t%ere is e)i!ence of negligence 0, 0ot% t%e original part, 4e6" manfactrer5 an! t%e interme!iate

inspector. lia0ilit, is to 0e s%are! 0et-een t%em 4I)es5

7earne! Interme!iar, Rle /ollis": While a manufacturer generally has a duty to warn the consumer, it some

circumstances it may satisfy this informational duty by providing warning to a learned intermediary& the manufacturercan only be said to have discharged its duty to the consumer when the intermediary’s knowledge appro'imates that of

the manufacturer /ollis"& the principle is applicable where:

#" *he product is highly technical in nature and is intended to be used under the supervision of e'perts, or %" *he nature of the product is such that the consumer will not realistically receive ant direct warning from

the manufacturer before using the product

A manfactrer of simple component parts -ill not o-e a !t, to ltimate consmers if: 48iri!ian5

#" (t is within the contemplation of the parties, than an immediate inspection will take place

%" $ proper intermediate inspection will reveal the defect

+" *he manufacturer is not aware of how the simple component parts are being used0" *he component parts have to be machined and engineered by the intermediate party before it can be used

2" )arties are sophisticated

3" *here is no reliance

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• I)es 7": furnace caused problems& numerous inspections and ) was never warned about risks& ) became

sick" $n intermediate inspector will not break the chain of causation to e'onerate a manufacturer fromliability liability should be apportioned between two negligent parties" 1 where there are duties on two or

more parties and negligence by each was a contributing cause of the damage, they were both liable

• 'ollis 7": manufacturer of breast implants did not provide information about risks to the doctor" a

manufacturer can only be said to have discharged its duty to the consume where the learned intermediary’s

knowledge appro'imates that of the manufacturer • 8iri!ian #8": diaphragms used in gas compressor were unfit for the purpose" $ manufacturer’s duty to

potential consumers will be discharged where intermediate inspection is in reasonable contemplation which

would revealed the defect, them manufacturer is unaware of the purpose for which its basic product was being used, the parties are sophisticated and there is no reliance

Go)ernment 7ia0ilit,

*irst t%ing to loo& t -%en sing t%e Minister: t%e statte empo-ering t%e Minister to ta&e t%e action in 1estion

4consi!er t%e e6tent an! scope of at%orit, grante!5

IS T'ERE A +UT9 O* CARE OWE+

IS T'ERE A REASON W'9 T'E +UT9 S'OU7+ NOT APP79

#" )olicy .onsiderations%" !tatutory 9'emptions

IS T'E +ECISION A PO7IC9 +ECISION OR AN OPERATIONA7 +ECISION

Polic,: decision on what to do" usually dictated by financial, economic, social and political factors and

constraints e' decision made by people at the top of the chain of command, using discretionary powers"Operational: actually doing the thing in question" concerned with the practical implementation of theformulated policies

STAN+AR+ O* CARE:

W%ere t%e !ecision is a polic, !ecision. t%e Minister;Cro-n satisfies t%e stan!ar! so long as: 4Comea5

#" *he decision is relevant within the government’s authority"%" (t is not arbitrary

+" (t is e'ercised in good faith

W%ere t%e !ecision is an operational one t%e normal principles of tort la- appl,

Go)ernment officials can 0e se! as in!i)i!al for !ecisions -%ic% case %arm to in!i)i!als 4T%e office of t%e

PM or premier cannot 0e se!. 0ecase it is create! 0, cstom an! con)ention rat%er t%an 0, statte5 4+e!oc&5

• Comea2s Seafoo! ##": lobster license retracted by the ;inister" Where the minister is granted absolute

discretion by statute and, following government policy, causes harm to ), the ;inister cannot be held to benegligent ;inister acted on his authority legitimately for the purpose of implementing government policy"

• +e!oc& #%": cuts to the health care system by provincial government led to inadequate medical treatment"

representatives of the .rown can be sued as individuals for negligent decisions causing harm to individuals

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• actors to consider for reliance:

#" 9'pertise and knowledge of the representor %" !eriousness of the occasion

+" $n initial request for information

0" )ecuniary interest financial benefit by )"2" -ature of the interest

3" Disclaimers

+O PO7IC9 CONSI+ERATIONS NEGATE T'E +UT9 O* CARE

*he main factor to consider is IN+ETERMINAC9: possibility that D may be e'posed to liability in an indeterminateamount for an indeterminate time to an indeterminate class

'ercles: >actors to consider:

#" Does D know the identity of either ) or the class of )s who would rely on the statement?

%" Does the reliance losses claimed stem from the particular transaction in respect to which the statement was made?

STAN+AR+ O* CARE:

*he representor is to e'ercise reasonable care such care as may be e'pected of a reasonably prudent person in the

representor’s situation" as the circumstances require to ensure the representations made are accurate and not misleading

CAUSATION:

*he representee must have relied on the negligent statements to his detriment the statements must have materially

contributed to the loss suffered by )

• 'e!le, (,rne #7": bank made a qualified statement that 9 was creditworthy" an innocent but negligent

misrepresentation by itself does not give rise to a cause of action something more is required" the speaker

has to have undertaken some responsibility e'pressly or by implication" and where a statement is qualified

with words such as in confidence and without responsibility@, then the person to whom the statement is

made bears the risk that it is not true or negligently made

• *letc%er: an omission failure to disclose a fact" can amount to a negligent statement

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• Congos %#": ) accepted a job offer based on negligent statements made by the employer about the prospects

for the business’s success" >or there to be a pro'imate relationship, it must be reasonably foreseeable to D

that ) will be relying on the information provided by him to make a decision

• 'ercles %#": shareholders relied on audits for personal investment purposes" due to the possibility that D

may be e'posed to liability in an indeterminate amount for an indeterminate time to an indeterminate class,

policy considerations are an important part of the analysis in negligent statement cases

• (C C%ec&o %+": A to erect transmission lines and clearing of eight of way was inadequate" (t is possible

that a tort action and a breach of A action can coe'ist: the mere fact that the parties have dealt with thematter e'pressly in their A does not mean that they intended to e'clude the right to sue in tort

Negligent Performance of Ser)ices

Negligent Performance of Ser)ices: Bccurs where a party claims to have a certain skill but fails to perform it in a

competent manner

• ("+"C" %0": due to the negligence of a courier company, certain documents did not reach their destination

on time and ) suffered a loss" Where D has no actual knowledge of the person or class of person whoseinterests depended on D’s acts or where there was no reliance by ) on D, there was no pro'imity and hence

no duty owed by D to )

Economic 7oss Case! 0, +efecti)e Pro!cts an! Strctres

• Winnipeg Con!ominims %0": contractor built a defective structure and new purchaser sued for money

spent fi'ing the problem" Where a contractor or any other person" is negligent in planning or constructing a

building and where that building is found to contain defects resulting from that negligence which pose a realand substantial danger to the occupants of the building, both injuries caused to occupants as a result of the

defect and the cost of repairing and putting the building into a nondangerous state by the owner are

recoverable in tort

Relational 7osses

Relational 7osses: instances where there is a claim for a purely economic loss by ) based on damages physical or

proprietary" done to another person potential for this category to be huge, so the law is e'tremely restrictive

T%e principle for reco)er, for economic loss is t%e Anns test:

IS T'ERE A PRIMA *ACIE +UT9 O* CARE

When is there a duty of care for relational economic loss?

Mc7ac%lin .-=": =elational economic loss is recoverable where, in addition to negligence and foreseeable loss,there is sufficient pro'imity between the negligent act and the loss the factor of pro'imity will sufficiently limit

recovery of pure economic loss to avoid indeterminacy

7a *orest .-=": -o duty could arise in respect to economic loss claims unless the case fell within one of thefollowing categories:

#" .ases where the claimant has a possessory and proprietary interest in the damaged property

%" Ceneral average cases+" .ases where the relationship between the claimant and the property owner constituted a joint venture

ARE T'ERE PO7IC9 CONSI+ERATIONS W'IC' NEGATE T'E +UT9 O* CARE

)olicy reasons for reluctance to allow recovery for pure economic loss: D’$mato"

#" 9conomic interests have been seen as less worthy of protection than bodily security and property

%" =isk of liability in an indeterminate amount for an indeterminate time to an indeterminate class+" (t may be more efficient to place the burden of economic loss on the victim

0" *he restrictive approach discourages a multiplicity of lawsuits, in favor of channeling claims into one action

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• C"N"R" %3": boat struck and damaged railway bridge owned by the government but used by )" ;cachlin:

liberal approach" pure economic loss is recoverable where, in addition to negligence and foreseeable loss,

there is sufficient pro'imity between the negligent act and the loss here, )’s work was closely allied to theoperations of the government such that it could be considered a joint venture" E! a >orest: conservative

approach" no duty of care can arise in respect to pure economic loss unless the case fell with in the narrowe'ception categories where identifiable policy factors strongly supported recovery this case left the law in

an unsatisfactory state: two visions presented here it was found that D was already liable to the owner of the

damaged property, and to the e'tent that deterrence was sought to curtail reckless conduct, it already e'isted,and recovery for a pure economic loss was unnecessary"

• +2Amato %4": ) injured and could not do his old job, and his employer suffered losses" (ndeterminacy is a

crucial component of the %nd branch of the $nns test because an injury to one party will obviously have aripple effect, causing economic loss in various forms to a large number of people and there is hence a serious

risk of claims by multinumbered plaintiffs

• (o- 8alle, %5": D built a rig& the heating system caught fire and was out of commission& owners sued for

economic loss" where a case does not fall within a recogni


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• *he class of )s can include close relatives and loved ones, but is no limited to this a rescuer who witnesses a

horrible accident can recover 6echard"

• $re there any bystanders involved? harder for bystanders to recover, unless they were fellow workers, or closely

related to the injured party"

• R%o!es +%": )’s son was killed in a train crash" $ person who suffers psychological injury as a result of

being informed of the death of a relative, or visiting the scene some days later cannot, in the absence of anyune'pected alarming or horrifying e'perience caused by the circumstances of the accident, be said to have

been closely and directly affected by the negligent act that caused that accident here, )’s illness wasattributed to the death of her son and not to the trauma of the accident itself

• (ec%ar! ++": ) and / were in an accident& D ran over / and ), trying to rescue /, was traumati


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8olntar, Assmption of Ris& as $ correlati)e effects:

#" (t means that ) is agreeable to bearing the injurious consequences of D’s negligent conduct

%" (t meant that D is relieved from any duty of care to ) in respect to the particular risk of harm

• 'am0le, +5": the cop had set a road block to stop a criminal, and the criminal struck the police cruiser,

injuring )" the defense of voluntary assumption of risk could not succeed unless the evidence permitted a

genuine inference that ) consented not merely to the risk of injury, but to the lack of foreseeable care whichcould produce that risk

• Croc&er +5": $s a complete bar to recovery, voluntary assumption of risk applies only where ) has assumed

both the physical and legal risks involved in the activity in question

Illegalit, of t%e Plaintiff2s Con!ct

T%ere s a limite! po-er on t%e cort to !en, reco)er, to a P on t%e gron! t%at to !o so -ol! n!ermine t%e

integrit, of a /stice s,stem se! onl, -%ere allo-ing P2s claim -ol! intro!ce inconsistenc, in t%e la-

eit%er 0, permitting P to profit from an illegal or nla-fl act or to e)a!e a penalt, prescri0e! 0, criminal la-

+I+ T'E INs%elle! s&ll an! an egg>s%elle! personalit,. 0t a con!ition pre)enting P

from mitigating %is !amages 0, see&ing treatment mst 0e pre>e6istingB t%e in1ir, %as t-o steps: 4EXISTING ONE

*he condition must be a pree'isting one"

W'AT WAS T'E NATURE O* T'E PS9C'O7OGICA7 IN*IRMIT9

>ocus on )’s capacity to make a reasonable choice"

Ot%er *actors: degree of risk to ) from the treatment, the gravity of the consequences of refusing it, and potential benefits derived from it

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*or t%e prpose of !amages. consi!er -%ic% !amages are a)oi!a0le an! -%ic% ones are not. an! compensate for

na)oi!a0le !amages onl,

• uture .areb" oss (ncome .apacity

Non>Pecniar, 7oss: nonmeasurable losses such as pain and suffering, loss of happiness, etc

• An!re-s 0%": ) injured in accident and rendered a quadriplegic" $ claim for cost of future care is a

pecuniary claim for amount reasonably e'pected to be e'pended in putting the injured party in the positionfinancially" he would have been in if he had not sustained the injury

• To-nsen! 00": Damages are assessed and not calculated& damages are granted as a single lump sum& ) has

the freedom to do what he wants with the recovered sum

• W%iten 02": )unitive damages are awarded against D in e'ceptional cases for malicious, oppressive and

highhanded misconduct that offends the court’s sense of decency

INTENTIONA7 TORTS

INTENTIONA7 INTER*ERENCE WIT' T'E PERSON

Intention

*or t%e prpose of intentional torts. intentionD means t%e intention to 0eing a0ot t%e act 4moti)e is irrele)ant5

T%e prpose of t%is t,pe of tort is to protect t%e 0o!il, integrit, of in!i)i!als

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T%ere is no nee! to pro)e a loss or !amageB it is sfficient for P to !emonstrate t%at %e -as !irectl, affecte! 0,

+2s act. an! t%e ons -ill t%en s%ift to + to s%o- t%at %e -as not negligent

W%ere t%ere is an intentional tort. P ma, also 0e a0le to se in negligence:

• (n negligence, ) has a burden to prove all the elements of negligence

• >or intentional torts, all that ) has to prove is that he was affected by D’s act

• Gos%en 03": referee pushed down ) while being escorted out the ring" >or D to be found liable for an

intentional tort, it must be shown that he intended to bring about the act and not the harm to )" here, D

was entitled to protect his face as he was leaving the ring, and his act of bumping into ) wasunintentional& but even if he did intentionally push ), it could be argued that he was doing so in aid and

in consort with the police officers in achieving a common goal of getting him out of the ring safely"

• Garratt 04": a 3 year old pulled a chair from under )" *he mere absence of any intention to injure ) or

to play a prank, or to commit an assault or battery on ) would not absolve D from liability if he in facthad the knowledge that ) would probably attempt to sit down where the chair had been

• Carnes 04": D wanted to strike $ with pliers, but missed and unintentionally struck 6" (f one person

intentionally strikes at, throws at, or shoots at another, and unintentionally strikes a + rd person, he is not

e'cused on the ground that it was a mere accident, but his actions will constitute battery D’s intentionwas to strike an unlawful blow, to injure some person by his act, and it was not essential that the injury

be to the one intended"

• (asle, 04": D, mowing his lawn, accidentally crossed onto )’s lawn" ;istake as a defense does notwork in intentional torts D’s act was voluntary and he intended the result of his act, and his intentionsand knowledge were not material"

• Smit% 04": D was carried on to )’s land by force of others" *he trespass was of the party who carried

upon the land and not the trespass of D

• Tillan!er 04": + year old dragged a baby over #88 feet" $ child of a tender age e' under 4" cannot be

liable in negligence for intentional torts because he does not have the mental capacity to act willfully@or intentionally@

• 7a-son 05" nonpsychiatric patient attacked by a psychiatric patient" Where a person, by reason of

mental illness, is incapable of appreciating the nature or quality of his act, such person has committed no

tort since the intention, which is an essential element of the cause of action, is missing

Assalt

+I+ P 'A8E A REASONA(7E APPRE'ENSION O* 'ARM*U7 OR O**ENSI8E CONTACT

• *he fact that D lacks actual ability to cause the harm is irrelevant

• $ctual fear on the part of ) is not required& what is needed is merely an apprehension of the harm

• *o be an assault, there must be means available to carry out the threat !tephens"

WAS T'E 'ARM IMMINENT

• *he apprehended contact must be imminent

6arring one’s way can constitute assault 6ruce"

• +e S" Wife 05": D struck at ) with a hatchet but did not hit her"*here is no need to cause harm to commit

assault& all that is needed is that there be a reasonable apprehension of harm

• Step%ens 07": D advanced towards ), fist clenched, but was stopped before he could strike at )" *he

question was whether D was advancing in a threatening manner to strike ), so that his blow would almostimmediately have reached the chairman if he had not been stopped& then, even though he was not near

enough to actually have struck him, it amounted to an assault since he was advancing with that intent

• T0er)ille 07": D put his hand on his sword and threatened )" (f one strikes another in discourse, it is no

assault, because there is no intention to assault (f one who intends to assault strikes at another and misses

him this is an assault $nd if a person holds up his hand against another in a threatening manner and says

nothing, it is an assault

• (rce 07": ) was cut off by D, stopped his car and gestured at D with a clenched fist& a fight broke out and

) was injured self defense?" >or assault, it is enough that ), on a reasonable ground, believes that he is in

fact in danger of violence& if $ shakes his fist at 6, 6 can strike back if he, on reasonable ground, believes he

was in imminent danger 1 barring one’s way can constitute assault

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(atter,

(atter,: the intentional infliction of harmful or offensive contact with another person trespass to a person"

+I+ + INTEN+ T'E 'ARM*U7 OR O**ENSI8E CONTACT TO OCCUR

WAS T'ERE ACTUA7 'ARM*U7 OR O**ENSI8E CONTACT WIT' ANOT'ER PERSON• $ny touching of another person, however slight, may amount to battery .ollins"

• *he contact does not have to be harmful& it must merely be offensive to or unwanted by )e' spitting"

• Whether or not D intended for the contact to be offensive is irrelevant

• $ certain amount of unwanted contact is considered by the courts to be inevitable in everyday life .ole"

• *he contact may constitute battery even if the purpose was to benefit ) e' surgery or blood transfusion, if

performed without consent"

• *he contact may constitute battery even if the victim was unaware of the contact at the time it was made e'

se'ual touching of an anaestheti


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• O!%a)/i 23": following a robbery, the police officers and the police chief promised to provide the special

investigation unit with certain information and failed to do so" the tort of abuse of public office@ seeks to

protect each citi=99H without duress, fraud or given by someone who is incapable of consenting"

T-o>step process in !etermining -%et%er or not t%ere %as 0een legall, effecti)e consent to a se6al assalt:

4Nor0erg5

#" )roof of an inequality between the parties which will ordinary occur within the conte't of a special powerdependency@ relationship: $n unequal distribution of power is frequently part of the doctorpatient relationship

%" )roof of e'ploitation: $ consideration of the type of relationship at issue may provide a strong indication ofe'ploitation .ommunity standards of conduct may also be of some assistance

T%e !octrine of informe! consent: no medical procedure may be undertaken without the patient’s consent, obtained

after the patient has been provided with sufficient information to evacuate the risks and benefits of the proposedtreatment and other available options ;alette"

T%e emergenc, sitation is an e6ception to t%e general rle re1iring a patient2s prior consent": = re1irements:

#" the patient must be unconscious or without capacity to make a decision, while no one legally authori


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• Coc&roff : ) was moving his fingers towards D’s eyes, and D bit )’s finger off" !elf defense requires

6$$-.9 have to respond to force with a balanced response" and (;;9D($.H immediate need torespond to a threat"

+efense of Propert,

+efence of propert,: $ person is permitted to use reasonable force to defend his or her property from wrongful

interference Defence is most commonly raised where a property owner takes steps to physically eject a trespasser

Elements of t%e +efence

#5 AMOUNT O* *ORCE

• *he force used must be only sufficient to e'pel the trespasser and must not cause unnecessary injury

• (f the trespasser initially entered the land lawfully, and his or presence is peaceful, force cannot be used to eject the

trespasser until he has first been asked to leave and has not done so Creen v Coddard"

• *he rules are different if the trespasser used force to enter the property or has come there to commit a crime (n

that case, there is no need ask the trespasser to leave before force can be used to eject him Creen v Coddard"$5 REASONA(7E STEPS TO 3EEP O** TRESPASSERS

• $ property owner can take reasonable steps to keep trespassers off his property, but cannot deliberately harm

trespassers in trying to keep them off

• $ property owner may not set a deadly trap such as a spring gun 6ird v /olbrook"

• (ir!: spring gun set up in garden& shot a trespasser" $ property owner cannot take law into his own hands

vigilantilism" and he must respect the humanity of trespassers 1 a property owner owes a duty to warn even

trespassers of serious dangers on his property ) overreacted to the defence of property should have at least posted a warning Ise of force was not reasonable in these circumstances"

Necessit,

Necessit,: Defence is raised where D committed a tort in order to prevent or remedy a situation of immediate danger

Elements of t%e +efence

#5 INNOCENT P7AINTI**

• ) is usually totally innocent& has done nothing intentional, provocative, or negligent ) has usually not participated

in creation of danger

• Different from selfdefence or defence of +rd parties because the person whose interest is harmed is not an alleged

wrongdoer, but someone who is innocent of responsibility in creating the dangerous situation$5 IMMINENT PERI7

• Defence would only e'cuse personal injury to the innocent ) where the threatening harm is great and the injury to

the innocent person is slight

• D is asking to be e'cused for his own intentional behaviour

=5 +AMAGES

• 9ven where the defence is successfully raised, it is not certain that D will be totally relieved of all responsibility to

pay damages to ) (t may be that there will be a finding that D was justified, because of necessity, in committing

the tort, but ) may still be entitled to damages

T,pes of Necessit,:

#" P0lic Necessit,: where D is arguing interference with person’s private rights for the public good& community

interest greatest good for greatest number 9': police who pushes someone to chase after a criminal Dwyer v

!taunton"

%" Pri)ate necessit,: (n the case of great and imminent danger, in order to preserve life, the law will permit

encroachment on private property 6ut must be limited somehow ;ere hunger and want is not defendable, as itleads to chaos

• +-,er: path opened through the snow through )’s property, and since there was no other way through, D

drove through the path" =egard for the public welfare is the highest law (f public road is impassable, one canuse private lands, taking due care to do no unnecessary damage& interference with private property is justified

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by the immediate urgency with a due regard for public safety and convenience )rivate property rights are to be respected but rights of public are higher rights public necessity"

• 8incent: D tied his boat to )’s dock during storm and the ship damaged the dock" Where D prudently and

advisedly avails itself of )’s property for the purpose of preserving its own property, ) is entitled to

compensation for the property damages done private necessity no strong police consideration"

• Mose: D threw )’s property overboard the ship during the storm to lighten the weight so that the ship

would not sink" (n case of great and imminent danger, in order to preserve life, the law will permit

encroachment on private property

7egal At%orit,

7egal At%orit,: Where D claims that a statutory provision authorises the conduct that would otherwise constitute a

tort *he defence is most commonly raised in cases of false imprisonment, battery or assault, and the .riminal .ode is

the statute most frequently relied upon

• Re,nen: ) underwent a rectal search, during which condoms full of heroin were discovered, and he brought

an action against the police for assault and battery" )olice officers who have reasonable grounds for believing

that a person under arrest for the possession of drugs is carrying the drugs internally are authori


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person, instead of so acting upon the mind of the contracting party, prevents the contracting party through atortious act from performing the A

%" In!irect *orquay /otel"

• Where a person persuades or procures a +rd party, often an employee of the contracting party but possibly an

independent +rd person, to do an unlawful or wrongful act, and the persuader or procurer has the knowledge and

intention to do the damage that is in fact suffered *here is no action where the act is lawful, notwithstanding its

consequence was to prevent the performance of the said A

• 7mle,: D lured the opera singer away from )" an action would lie for any malicious procurement of any

breach of A if, by the procurement, damage was intended to result and did result e'ample of direct

inducement

• Tor1at: e'ample of indirect inducement

• (rimelo-: Defence of justification available to D if the interference inducing others not to contract" is

justified by duty (t was the only means open to them to fulfill their duty" -o general rule e'ists as to what

interference is justified

Intimi!ation

Intimi!ation: D commits the tort of intimidation when, with the intention of making ) obey his wishes, he causesactual harm to ) by threatening to commit an unlawful act (dea is that you threaten a party so that they change their

behavior in a way that’s damaging to the economic interests of someone

T%e essential ingre!ients of t%e tort of intimi!ation are: 4Roo&es5

# a threat by one person to use unlawful means

% so as to compel another to obey his wishes, and

+ the person threatened must comply with the demand rather than risk the threat being carried into e'ecution"

$ t,pes of intimi!ation:

a" Where the intimidation is of ) itself

• )erson would have tort action if compelled to discontinue business when threatened of personal violence

b" Where the intimidation is of other persons to the injury of the )

• (ndirect, compel to do or procure an illegal act which will cause harm to )

• (ntimidation of )’s customers to withdraw business

• 9mployer compelled to fire servant

• Roo&es: (ntimidation includes #" threats of criminal or tortious acts %" threats of breach of contract and

other civil actions *ort of intimidation includes #" intimidation of a ), or %" intimidation of other persons tothe injury of the )

Conspirac,

Conspirac,: $n agreement made, without a legitimate object or purpose, between % or more persons to commit:

a" an unlawful act, directed at ), that D knows or ought to know is likely to cause injury to )& or b" an unlawful act, if the agreement is made with predominant purpose of injuring ) or )’s interests& or

c" a lawful act by unlawful means, if the agreement is made with the predominant purpose of injuring ) or )’s

interests& or d" a lawful act, if the agreement is made with the predominant purpose of injuring ) or )’s interests

T%e tort of conspirac, e6ists if: 4Cana!a Cement5

# *he predominant purpose of DOs conduct is to injure ), whether or not D uses unlawful means, B=

% (f DOs conduct is unlawful and directed towards ) alone or with others" in circumstances D should know injury to

) is likely *he predominant purpose need not be to cause injury, but there must be a constructive intent D shouldhave known injury to ) would ensue", $-D

+ ) must suffer actual damage

Interference

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Interference: .annot intentionally cause someone economic loss

• *urtle: (f can show that D’s only purpose was to injure a ), that would be a tort (f intentionally interfere to

injure )’s legitimate interests, that’s enough

#4

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