CH 4 – Intentional Torts
Torts that have been labelled as ‘intentional torts’: assault, battery, invasion of privacy, false imprisonment,
trespass to land and interference with chattels. Intentional torts involve intention, rather than merely careless
conduct (sometimes the courts have occasionally said that an intentional tort can consist of either intentional or
careless conduct: Cook v. Lewis; but we will only discuss on intentional). The definition of “intention” is very
broad; it is enough if the defendant knew that a particular act would have a particular outcome; the plaintiff
does not have to prove that the defendant intended to either cause harm or commit a tort.
Assault and Battery
An assault occurs when the defendant intentionally causes the plaintiff to reasonably believe that offensive
bodily contact is imminent. Several points are important in this definition:
1) This tort is (tort of assault) is not based on physical contact, it is based on a reasonable belief that such
contact will occur; this tort is designed to keep people from alarming others. EX: you can swing your fist at me
without actually hitting me and you have committed tort of assault. But if you punch me from behind, it is tort of
battery because I did not know that the blow was coming.
2) “If the plaintiff reasonably believed that bodily contact would occur”, this means that as long as the plaintiff
would have thought you would harm them, it is a tort of assault.
3) The plaintiff must have believed that bodily contact was imminent/about to happen/immediate.
4) As assault can occur even if the plaintiff was not frightened, it is enough that the defendant threatened some
form of offensive contact.
The tort of battery consists of offensive bodily contact (a person who commits a tory of battery often commits a
crime at the same time). Several points to note about this definition:
1) The requirement of “bodily contact” is not strictly applied. It’s enough if the defendant causes something
to touch the plaintiff and if the defendant makes contact with the plaintiff’s clothing or with something
that the plaintiff is holding.
2) Not every form of contact is offensive (like normal social interaction or brushing someone in a crowded
area). Sometimes a tory of battery is committed even though the actions are highly beneficial, like a
doctor performing a blood transfusion against a patient’s wishes.
*Always keep in mind reasonable force (but what defines that? Precedent cases)*
Invasion of Privacy
There is no general tort of invasion of privacy. The courts have been reluctant to recognize a tory of invasion of
privacy because they want to support freedom of expression and freedom of information. And there would be
many cases when they would be reluctant to award damages in favour of celebrities who seek out publicity but
then complain when they are shown in a bag light; it is also hard to calculate compensatory damages for the
kinds of harm like embarrassment that invasion of privacy usually causes. However, privacy is indirectly
protected by several torts:
- Tort of trespass to land
- Breach of confidence
- Tort of abuse of private information
- Tort of misappropriation of personality
- Tort of negligence
The crime of ‘voyeurism’ is committed by secretly observing or recording a person ‘in circumstances that
give rise to a reasonable expectation of privacy’, if that person is engaged in sexual activity or is partially of
fully nude. A crime is also committed by anyone who “prints, copies, publishes, distributes, circulates, sells,
advertises, or makes available” a prohibited recording. Many provinces have created statutory causes of action
to protect privacy interest, it impose liability if a person ‘wilfully’ violates another’s privacy by doing something
that they know to be wrong.
False Imprisonment: occurs when a person is confined within a fixed area without justification (tort of false
imprisonment); this doesn’t have to be an actual prison, it can be someone trapped in a car, room etc. but in
any event the confinement must be practically complete. Physical force is not necessary, the detention may be
psychological. When you want to ‘arrest a suspect’ you should call a cop because it may reduce the risk of
liability however, you may still be liable if you directed the officer to make the arrest under no justifications.
Even if you didn’t direct the cop to make an arrest, you can still be liable for the tort of malicious prosecution
—occurs when the defendant improperly causes the plaintiff to be prosecuted—the focus is not on detention or imprisonment, but rather on being subject to criminal proceedings. Aside from the tort of malicious prosecution,
liability may arise under the tort of negligent investigation. Malicious prosecution is hard to prove, the court has
to be satisfied that i) the defendant started the proceedings ii) out of malice, or for some improper purpose, and
iii) without honestly believing on reasonable grounds that a crime had been committed, and that (iv) the plaintiff
was eventually acquitted of the alleged crime.
Consent is a complete defence to all intentional torts. Imprisonment is false only if it is done without authority.
But when is there authority to make an arrest? The basic rules are found in the Criminal Code:
- A police officer may arrest anyone who is reasonably suspected of i) being in the act of committing a
crime, or ii) having committed a serious crime in the past. If those are met, the cop is not liable even if
the person is found innocent
- The rules (under the Criminal Code) are much narrower for private citizens including security guards. A
private citizen is entitled to make an arrest only if a crime is actually being committed by the suspect
(you can arrest someone who is reasonably believed to have committed a crime AND who is being
chased by a police officer).
The rules that apply to private citizens often create difficulties for business people; ex: someone objects the
price of a meal and tries to leave the place without paying commits a breach of contract but not a crime.
Trespass to Land
A trespass to land occurs when the defendant improperly interferes with the plaintiff’s land (tort of trespass to
land); this can be completely innocent too, like kicking a ball into someone’s yard. It is enough if the act was
intended even if the intention wasn’t to do wrong or cause damage.
Interference with Chattels
Tort law also protects chattels. Chattels are moveable forms of property, such as, horses, books and cars. The
most important torts to protect chattels include: trespass to chattels, conversion and detinue. Trespass to
chattels occurs when the defendant interferes with chattels in the plaintiff’s possession; remedy:
compensation for loss. The element of interference is satisfied if the defendant damages, destroys, takes, or
uses the plaintiff’s goods (or even merely touches the property depending on the good). The tort of
conversion occurs when the defendant interferes with the plaintiff’s chattels in a way that is serious enough to
justify a forced sale; if the defendant takes, detains, uses, buys, sells, damages or destroys the plaintiff’s
property—remedy: forced sale of chattel from plaintiff to defendant @ market value. However it is hard to know
whether the defendant’s actions are serious enough to justify a forced sale. The courts consider all of the facts:
the extent to which the defendant exercised ownership/control over the chattel, extent to which they intended
to asset a right that was inconsistent with the plaintiff’s right to the property, the duration of the interference and
the expense & inconvenience caused to the plaintiff. Conversion can only be used for very serious matters. If
someone steals your watch and sells it to someone else for 100$, the person who bought it has committed a
tort against the owner of the watch. If someone steals you’re money, and uses it to buy another person’s
watch, that person is not liable for conversion. The law treats money differently than other assets. The rule
generally is limited to cash money—notes and coins; in order to ensure money flows freely through our
economy. The tort of detinue occurs when the defendant fails to return a chattel that the plaintiff is entitled to
possess (remedy: compensation for loss or return of chattel). The world detinue is derived from the French
word detenue, which means detention. The tort is based on a wrongful detention; the plaintiff is normally
required to demand possession of the property before bringing an action. That requirement is removed if the
demand would obviously be refused. Detinue is the only tort that generally allows a court to order the
defendant to return a chattel to the plaintiff. Sometimes the plaintiff doesn’t need the courts help; the right of
reception allows a person to take their own property back.
Defences to Intentional Torts (our discussion it limited to the most important defences that apply to business
situation—there are still defences like discipline for parents and so on)
*It is never a defence to