Week 2 - Questions and Answers
Chapters 4 and 5
1. Q: Distinguish between the civil and criminal aspects of intentional torts,
such as assault and battery or false imprisonment.
A: There is always the simple distinction between any tort and a criminal
offence. The tort is the notion of private redress for intentional
interference, and usually involves the wrongdoer paying money to the
harmed individual. Criminal law is pursued by the state, monetary
compensation to the individual harmed is seldom the remedy, and the
purpose is to deter the individual wrongdoer from future acts, as well as
deter the public at large. The goal of criminal law is to punish and deter. A
private tort does not result in a prison term for the party liable. Next,
consider assault is defined under the Criminal Code in the same terms as
battery in tort law, i.e. the intentional application of force on another
person without their consent. Assault in tort law is the threat of violence.
3. Q: Under what circumstances might a person accused of assault and
battery raise self-defense as justification?
A: Where that accused person has applied force to protect themselves
from a physical assault by another, where they had reasonable grounds to
fear for their safety, and the force used was reasonable in the
circumstances. * In the circumstances tells us that this is a question of fact
for a judge or jury to decide when considering what happened.
5. Q: Distinguish between slander and libel. Why is libel generally
considered more serious in the eyes of the law?
A: Both are defamatory statements, slander is verbal, libel is written. Libel
is more serious because it is accepted written statements have more
permanence, and damage the reputation for a longer period, likely
reaching a wider audience.
6. Q: Define qualified and absolute privilege, and explain the circumstances
in which each might be claimed.
A: Qualified privilege occurs when the defendant made a defamatory
statement but made it in good faith and without malice. Absolute privilege
occurs where the statement is made in a particular situation, such as
parliament, or a court proceeding. It is absolute because the statement may be made with malice, and in bad faith, it is still protected by privilege
and cannot be the subject of a law suit.
7. Q: How does the tort “trespass to land” arise? Must damage occur for the
tort to be actionable?
A: Any interference with the land of another, for example, actual physical
occupation or traveling on, dust, noise, projectiles, tunneling under, even
flying over at a height which interferes with the reasonable enjoyment of
the occupier. No harm is required to succeed in this law suit.
10. Q: Explain the rationale behind the law that condemns as a tort any third
party interference with the performance of contracts made between other
A: The rationale in question stems from the notion that intentional
interference is a wrongful restraint of trade. We have an economy based
on the proposition that free enterprise produces the best goods and the
best prices. The more goods on the market, the more freedom to contract,
then the healthier the economy. Intentionally interfering with someone
else’s contractual relations is against the free market. In addition, it affects
the victim’s freedom to contract, it is an intentional interference with
another’s legal rights.
Case 4 (7 and 8 editions):
The issues are:
Trespass: was the student trespassing when asked to leave? Likely yes, as the
management has the right to eject a person whose behaviour is inappropriate. As
the student is trespassing, the university could consider an action for trespassing.
It is also likely university could recover damages to the window since the ejection
was pursuant to removing a trespasser.
False Imprisonment: the bouncer had physical control of the student while he
ejected him from the premises. It could be argued that for the duration of time the
bouncer had control of the student, the student was falsely imprisoned as his
movements were confined. The difficulty for the student is that the bouncer’s
actions were likely justified as reasonable and necessary to remove him as a
See the Criminal Code provisions that justify an arrest, it is likely the bouncer, as
agent of the university, had the right to restrain, arrest, and remove the student.
Assault: Same arguments as above, i.e. there was a lawful justification for the
application of force, and in addition, on these facts it is likely the student applied force in a manner that justified self – defence on the part of the bouncer.
It has also been indicated in the given facts that the student “fell against the
door”. This could be an accident, or could be the result of excessive force.
Remember, it is the nature of the act that determines liability and not the extent
of damages. Given this, the student would argue the force applied was
excessive, while the university would argue it was reasonable in the
circumstances and the excessive injury was simply accidental.
You decide, I think the facts are difficult to characterize with precision, but you
can appreciate the arguments.
3. Q: Explain the concept of duty of care as it relates to liability in a tort
A: There must be a legally recognized duty owed by the defendant to the
4. Q: Why are the concept of duty of care and reasonable person important
in a case where negligence is alleged.
A: These concepts provide the legal “nexus” or connection between
plaintiff and defendant. You are only liable to those that you are legally
responsible to protect. A legal responsibility occurs when it is reasonable
to expect that careless actions may harm someone.
6. Q: How are the concepts of the reasonable person and foreseeability
A: What is “reasonable” to foresee. This is an attempt to generate an
objective standard to determine when someone should take care or pay
the consequences of careless actions. A particular defendant cannot
simply say they were too stupid to understand potential consequences,
they will be held to a reasonable standard.
7. Q: Identify and explain the essential ingredients of unintentional tort
A: Duty of Care: again, the defendant must owe a duty to the plaintiff, it
must be reasonably foreseeable that a person could be injured by the
Standard of Care: what is the reasonable standard of care in the circumstances. Eg. persons driving automobiles should do so with a
proper license and training, should drive at a reasonable rate of speed,
with their eyes