LAW 122 - Chapter 4
Intentional torts involve intentional, rather than merely careless, conduct.
The courts have adopted that broad definition of “intention” because they
want to strongly protect the interests that I have in myself and in my
property. From a risk management perspective, they lesson is clear. Before
acting in a particular way, you should know much about the consequences of
Assault and Battery
• People often use those terms interchangeably; and even lawyers use the
world “assault” to describe the crime that occurs when one person physically
attacks another. In tort, “assault” and “battery” have very different
meanings. An assault occurs when the defendant intentionally causes the
plaintiff to reasonably believe that offensive bodily contact is imminent.
There are several important points in the definition:
•First, the tort is not based on physical contact; it is based on a
reasonable belief that such contact will occur. The tort is designed to
keep the peace by discouraging people from alarming others. Example:
If you punch me from the front it is an assault but if you punch me from
the back it’s not because I didn’t see it coming.
•Second, it is enough if the plaintiff reasonably believed that bodily
contact would occur; you may commit an assault by pointing a gun in
my direction, even if the gun is not really loaded.
•Third, the plaintiff must have believed that bodily contact was imminent;
although that requirement is rather vague, you probably would not
commit an assault if you threatened to kick me two weeks from today.
•Fourth, an assault can occur even if the plaintiff was not frightened; it is
enough that the defendant threatened some form of offensive contact,
you therefore may commit an assault by swinging your fist at me even if
your too small to harm.
• A claim for assault is usually joined with a claim for battery. A battery
consists of offensive bodily contact; there are several points to note about
•First, the requirement of “bodily contact” is not strictly applied; it is
enough if the defendant causes something, such as a knife or a bullet, to
touch the plaintiff. It also is enough if the defendant makes contact with
the plaintiff’s clothing or with something that the plaintiff is holding
•Second, not every form of contact is offensive; normal social interaction
is allowed; you do not commit a battery if you gently brush past me in a
crowded elevator or if you tap my shoulder to get my attention. At the
same time, contact may be offensive even if it is not harmful.
• Bouncers and security personnel often injure patrons whom they eject from
taverns, concerts, and sporting events. Given the doctrine of vicarious liability and the need for risk management, such employees should be
Invasion of Privacy
• There are several reasons why the courts traditionally have been reluctant
to recognize a tort of invasion of privacy. They want to support freedom of
expression and freedom of information. Privacy is indirectly protected by
•A photographer who sneaks onto someone’s property to obtain candid
pictures commits the tort of trespass to land.
•Employees who publish embarrassing details about their employer’s
private life may be liable for breach of confidence. That action also
allowed an English court to award damages against a magazine that
published unauthorized photographs taken by a guest at a private
wedding between two Hollywood people.
•Despite rejecting a tort of invasion of privacy, English courts have
recognized a tort of abuse of private information. Supermodel Naomi
Campbell was able to sue a newspaper that published a photograph of
her coming out of a Anonymous meeting.
•A company that makes unauthorized use of a celebrity’s image to sell its
own products may commit the tort of misappropriation of personality.
•A newspaper that ignores a judge’s instructions and publishes the name
of a police officer who had been sexually assaulted during an undercover
investigation may commit the tort of negligence.
• In addition, several provinces have created statutory causes of action to
protect privacy interests. While those statutes vary from jurisdiction to
jurisdiction, they generally impose liability if a person “willfully” violates
another’s privacy by doing something that they know to be wrong. Privacy is
left open to discussion because of the different types of situations.
• False Imprisonment occurs when a person is confined within a fixed area
without justification. That would clearly be true if the plaintiff was physically
dragged to a prison and thrown into a locked cell.
•An actual prison is not necessary; the tort can be committed if a person
is trapped in a car, locked in a room, or set adrift in a boat. But in any
even, the confinement must be practically complete. The defendant
does not commit a false imprisonment by obstructing one path while
leaving another reasonable path open. Nor is the tort committed if the
plaintiff can easily escape.
•Perhaps surprisingly, physical force is not necessary; the detention may
be psychological. A tort may be committed, for example, if a shopper
accompanies a security guard to a back room in order to avoid public
embarrassment. •Because a police officer has a wider power of arrest than a private
citizen, a business person may reduce the risk of liability by calling a
police officer, instead of directly arresting a suspect. That tactic will not,
eliminate the risk. The business may still be held liable if it is directed
the officer to make the arrest, rather than merely state the facts and
allow the officer to draw a conclusion.
•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. That might be true,
for instance, if a business concocted a story about shoplifting and
persuaded the government to lay charges against the plaintiff. Malicious
prosecution is difficult to prove; the court has to be satisfied that (i) the
defendant started that 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.
• Although the tort of false imprisonment is quite wide, the defendant will not
be held liable if the plaintiff agreed to be confined. Consent is a complete
defense to all intentional torts.
• Consequently, bus passengers can’t complain if the driver refuses to make
an unscheduled stop. A company that operates a mine is generally entitled
to leave a worker underground until the end of a shift. The same rule may
apply to a customer in a store, at least if the store gave advance warning.
• An imprisonment is false only if it is done without authority; 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 that test is satisfied, the police officer can’t
be held liable; even if the person who was arrested was actually
•The rules are much narrower for private citi