Intentional and Business Torts Lecture 03 PDF

Intentional and business torts Lecture 03 Dr. John Allen Today’s objectives: Intention - different levels for different torts Intentional Torts - chapter 4 ○ Assault ○ Battery ○ False Detention ○ Malicious Prosecution ○ Invasion of Privacy ○ T...

Intentional and business torts Lecture 03 Dr. John Allen Today’s objectives: Intention - different levels for different torts Intentional Torts - chapter 4 ○ Assault ○ Battery ○ False Detention ○ Malicious Prosecution ○ Invasion of Privacy ○ Trespass to land and chattels ○ Defences to Intentional Torts Today’s objectives, cont’d Business Torts - chapter 5 ○ Deceit ○ Defamation ○ Injurious Falsehood ○ Tort of Intimidation ○ Tort of Conspiracy - Lawful Act and Unlawful Act ○ Interference with Contracts Intentional Torts Intentional Tort - when someone intentionally acts in a certain way, rather than being unaware and careless (negligence is next week) BUT the extent of “intention” depends on the tort: – Battery, Trespass and most intentional torts only require intent to do the action - do not need to prove intent to bring about consequences – Reckless - being aware and ignore the risk - usually treated as intentional – Some business torts also require proof of intention of consequences ▪ Such as - knowledge that injury was reasonably foreseeable ▪ Must assess the particular tort and determine what the elements are Examples of intention required Trespass to Land: Protected Interest: Private Property Intention: Low Test - Intention to walk on plaintiff’s land enough Low test of intention means greater protection against trespassers Tort of “Lawful Act Conspiracy”: Protected Interest: Business Interest Intention: High Test - Primary Purpose of harming the Plaintiff High test of intention means less protection and more freedom for groups Assault Defined (need to prove all) intentionally create the reasonable belief of imminent offensive bodily contact Do not need to prove actual threat or actual harm - it is the reasonable belief of a threat, eg. a toy gun could be threat Battery Defined (need to prove all) intentionally create offensive bodily contact without consent Not every form of bodily contact is offensive Normal social interaction isn’t offensive unless unwelcome An unwanted kiss is battery Battery? - Facts Jane Doe was severely injured in a car accident and taken unconscious to the hospital where she was examined by the doctor in the emergency wing. The doctor concluded that a blood transfusion was required to save her life. A nurse discovered a card in her purse, undated and unsigned, which said: “As one of Jehovah's Witnesses with firm religious convictions, I request that no blood or blood products be administered to me under any circumstances. I fully realize the implications of this position, but I have resolutely decided to obey the Bible command: "Keep abstaining... from blood." (Acts 15:28, 29).” The doctor gave her a blood transfusion, and she lived rather than died. Slide temporarily deleted False detention Unjustified confinement within fixed area physical or psychological detention within fixed area no easy escape available no consent Powers of Arrest and Detention Police officers - can arrest if: reasonable belief in commission of crime not liable even if person later found not guilty Private citizens - including security guards if find person in actual commission of indictable offence Or escaping from and freshly pursued Must “forthwith deliver the person to a peace officer” False detention? A customer objected to the restaurant bill, which included the cost of a bottle of wine which he ordered but did not drink because (old) regulations prohibited drinking in the restaurant after midnight. He refused to pay the bill, left his business card, and tried to leave. The security guard blocked the exit and directed him to a private office to discuss the issue. Five minutes later, he paid the bill and was allowed to leave. False detention? Slide temporarily deleted Malicious Prosecution Improperly causing the plaintiff to be prosecuted. Elements of tort Plaintiff must prove defendant caused prosecution Out of malice or for some improper purpose Without honest belief in guilt on reasonable grounds, and Plaintiff was eventually found not guilty of crime Malicious Prosecution Case - Facts Municipality fired its building inspector, claiming corruption with building permit fees. Municipality did not pay termination pay and reported the case to police. Police reluctant to charge, so Municipality exerted pressure on those higher in command. Charges were laid, and the building inspector was convicted The Municipality gave the police videos suggesting he took money, but withheld videos showing that he returned money. Once videos returning money were released, building inspector acquitted. Municipality did not charge the inspector - the police did. Slide temporarily deleted Invasion of Privacy Courts do not want to define privacy too broadly New tort of “Intrusion on Seclusion” / Case Brief 4.3 ○ Bank official is girlfriend of Plaintiff’s former husband. ○ Bank official secretly accessed her private bank account to see if her boyfriend was actually paying child support. ○ Intentionally invaded her private space in an offensive way - liable for damages for the distress, humiliation, and anguish. Jones v Tsige Right to privacy when sitting on public steps? General rule - can take photos of people in public spaces Arts magazine took a photo of a 17 year-old woman sitting alone on the steps of a public building. They did not ask for her consent to publish the photo. After it was published, she was laughed at by her friends and she felt embarrassed. Question: Is she entitled to damages for invasion of privacy? Slide temporarily deleted Trespass Intentional interference with land Lack of consent ○ Customers normally have consent to access business during business hours ○ Businesses may revoke consent for certain customers ○ Businesses cannot violate Human Rights Code when revoke consent Lack of legal authority (some public officials have authority to enter land) Remedies? ○ Nominal damages - to set a precedent ○ Compensation if any actual damage ○ Injunction - to prevent future trespassing Trespass to Chattels Chattels are properties that are not land Trespass or Interference with Chattels ○ taking, destroying, using, and sometimes touching another’s property Suppose A has a famous painting. B steals it and then sells it to C. Must C return it to A? Does the remedy depend on factors? DISCUSS ○ C buys the painting in a parking lot at night from B who is wearing a trenchcoat? ○ C buys the painting from a registered art dealer, who bought it from B and who then sold it to C at a public auction? ○ What if A is careless and lends the painting to friends and associates, and A should have been more careful? Tort of Deceit 1. False statement 2. Knew it was false 3. Intended to mislead the plaintiff, and 4. Plaintiff reasonably relies on the statement which caused damages. Must intend the act (make a statement) and intend a result (Also known as Fraud or Intentional Misrepresentation) 1) What is a false statement? 1. Clearly false statement - “This car has been driven 80,000 km - odometer”. But odometer tinkered with, and has actually been driven 160,000 km. 2. Half truth: e.g., providing figures representing profits, but omitting to indicate that they are ‘gross’ profits - depending on context, it can be a misleading statement that they reflect ‘net’ profits, i.e., after expenses. 3. Failing to update information: e.g., information provided before the deal closes becomes inaccurate on closing because of important change Puffs or Statement of fact? Puffs: Facts: “This is the most stylish car you will ever “This car has leather interior.” drive!” “This car was voted #1 by Car Dealers “This car outranks and outpaces all others Association in 2011.” in its class!” An opinion may imply a statement of fact, e.g., “This car can go a great distance between fill-ups”. Court could decide that the prediction includes a statement of existing fact regarding the vehicle’s current rate of gas consumption - not just a puff. Deceit - 2) Knowledge and Intent 2) Knew it was false Reckless - aware there was a risk that it was false, and did not correct Negligence is a different tort - did not know, but careless statement 3) Intended to mislead the plaintiff Compensation and additional damages for deceit - Case Brief 5.2 - aggravated and punitive damages awarded because intentional. (She posed as her boyfriend online and sent a fake rejection letter to scholarship opportunity, so her boyfriend wouldn’t leave her.) Deceit case - Facts Seller had a well at his residence which produced muddy tap water with a bad taste and odour. Tests revealed high levels of manganese and iron. Department of Health recommended a water company, which installed a water softener and filter. The odour subsided and the taste improved. Seller believed that the concentration of iron and manganese had also decreased, as water company said that would happen. Seller advised buyer that the water problems had been resolved. After Buyer moved in, the water became unusable. The Department of Health advised Buyer not to drink or use the water because the mineral concentration was still at the same high level. Slide temporarily deleted Caveat Emptor - Buyer Beware? The general rule in the commercial world is “buyer beware” The seller is usually not obligated to volunteer information The buyer is responsible for asking questions and making investigations However, sometimes there is a duty to disclose essential information The seller of a house must disclose hidden defects - eg. mold behind plaster The buyer of an insurance policy must disclose important information concerning their risk-profile (have had cancer, a heart attack, etc.) Deceit case - dairy cows… Although not written in the contract, the Seller of 17 holstein dairy cows said to the Buyer - 6 of the cows are pregnant because they have been bred, and they would calve (and produce milk) in six months Buyer relied on this statement and entered into contracts to sell the milk. Seller did not do a pregnancy test of the cows. Relied on them being bred. Buyer did not do a pregnancy test of the cows either. Why? Because he thought the Seller was an honest man. Cows were not pregnant. Slide temporarily deleted 3) Causation and Reasonable Reliance The plaintiff must suffer a loss as a result of reasonably relying upon the defendant’s false statement: Reasonable reliance: when the false statement refers to past or present fact. The Plaintiff must prove false statement of past/existing fact. No reasonable reliance: if defendant offered an opinion, predicted the future, or made a boastful statement (“puff”), not liable. No liability for inaccurate prediction of the future. Tort remedy for Deceit - put you back in the position you were in before the deceit (tort damages are backward looking.) Tort of Defamation defined 1. A statement communicated to a third person (publication) 2. About the plaintiff 3. That is false 4. That could lead a reasonable person in the community to have a lower opinion of the plaintiff. Historically, libel is in writing and slander is oral. Generally, damages presumed if libel (permanence) Strict liability for defamation - traditional law If the words used harm a person’s reputation, it is defamation, even if: ○ no intent to harm reputation ○ liable even if the defendant acted reasonably with reliable sources ○ applies to business reputation and goodwill ○ but doesn’t apply once the person is dead… Businesses face special risk when trying to enhance their own reputation by disparaging competitors Social media presents risks to employers: ○ As publisher of defamatory material, if business computer used, and ○ Vicarious liability for employees’ defamation. What reputations are protected? A defamatory statement can reduce the respect for a person in the community - harming their personal dignity, status, and prestige e.g., that person is dishonest, racist, lazy, infected with disease, criminal, etc. 1934 English case: ○ Someone reported to the police that there was illegal gambling at the golf club ○ The police searched and confiscated the illegal gambling machines at the club ○ "B” posted a notice accusing “A” of reporting to the police, which “A” denied ○ It harmed A’s reputation at the golf club - falsely labelled as a “snitch”. ○ Question - Can A sue B for defamation? Slide temporarily deleted Remedies for Defamation Usually compensatory damages, includes loss of goodwill of business If the plaintiff is an individual, can include damages for personal distress Sometimes punitive damages for outrageous conduct Injunction to prevent ongoing defamation - requires clear evidence that defamation is likely Defence of Truth Only a false statement is defamation If the statement is true, then not defamation. Can ruin a reputation, as long as you tell the truth. But be sure you can prove it is true! (on a balance of probabilities.) However, it could be another tort - intimidation or breach of privacy can be torts even if you tell the truth.  Absolute privilege Where open discussion is more important than protecting reputations No liability in specific zones of discussion even if statement made in bad faith Privilege applies even if the defendant knows the statement is false Limited to statements made: during proceedings in Parliament or the Legislature in court by judge, lawyer, litigant or witness privilege among gov’t officials when dealing with gov’t business privilege between spouses Absolute Privilege case A famous defence lawyer held a press conference on the steps leading up to the courthouse building. He read to the press directly from his motion record which he was about to file in court. He said that the Crown Attorney had misled the judge and had breached various court orders. The allegations against the Crown Attorney were later ruled by the court to be false. The Crown Attorney then sued the defence lawyer for defamation. The defence lawyer defended on the basis that these were court proceedings and that he had Absolute Privilege. Slide temporarily deleted  Qualified privilege Legal, moral or social duty to make a statement to someone with a similar duty or interest in receiving it - not to the public generally Only liable if statement made in bad faith A nurse or teacher who reports a child with bruises to the authorities, which turns out to have an innocent cause (eg. sports) An employer or landlord who gives a bad reference, in good faith. But if reckless and knew that what you say could be false, not protected. If you are defamed, and then respond by pointing out the false motives of the accuser - to the same audience and no more said than necessary - qualified privilege to respond Defamation tort - Qualified Privilege Recall Business Decision 1.1 on page 3, being asked to give a reference letter. You believe your employee stole from your business. Suppose you do an extensive investigation by a professional investigator, and the evidence seems very clear that she stole. You did as much “due diligence” as any professional would do. You only send the letter to the new employer and no one else. Question: Suppose she can later show through new evidence that it was somebody else who stole from your business - not her Can she sue you in Defamation? Qualified Privilege? Good faith? Defence of Fair Comment Expression of an opinion on a matter of public importance: Opinion must be informed (based on true facts) Opinion must relate to issue of public interest (not gossip) Opinion in question could honestly be held by some person – even if the defendant is prejudiced or opinionated Fair Comment? Facts: Well-known radio talk wrote an editorial about an anti-gay advocate, who said that the gays were coming for your children. Radio host compared the anti-gay advocate to how Hitler, Ku Klux Klan, and skinheads treated their victims. “Now I’m not suggesting that [the anti-gay advocate] was proposing or supporting any kind of holocaust or violence but… neither did Hitler or Governor Wallace…They were simply declaring their hostility to a minority. Let the mob do as they wished.” Comparisons implied that anti-gay advocate would condone violence Is the Radio talk show host protected from a defamation claim? Slide temporarily deleted Journalists - What about errors of fact, rather than a comment or opinion on facts? G brought a libel action against a newspaper and reporter after an article was published concerning a proposed private golf course development. The story aired the views of local residents who were suspicious that G was exercising behind the scenes political influence to secure government approval of environmentally sensitive land. The reporter attempted to verify the allegations, including asking G for comment, which G chose not to provide. The reporter could not prove the allegations. Should statements be protected even if reporter cannot prove they are true? Slide temporarily deleted Injurious falsehood False statement - not about person but about their business or property Slander of Title - tell a third person (potential buyer) that there is a lien or defect with their property Slander of Quality - false statement about the products, such as unsafe. To say your product is better is likely not slander. Other situations - there are ghosts in that house; the owner was murdered… MUST PROVE ○ False statement ○ Malice - intent to harm the title, quality, or character of a business or property ○ Proof of financial loss Tort of Intimidation Requirements: 1. The defendant made a threat - if you don’t do this, I will commit an illegal act - such as a crime, a tort, or perhaps even a breach of contract; 2. The plaintiff complied to avoid the threat; and 3. 1) and 2) caused the plaintiff damages. Intention? Plaintiff need not prove defendant intended to cause loss or damage - just intended to make the threat. Third party intimidation? Intimidation case Facts: Trade union was angry with worker because he didn’t support the union. Union told company that unless he is fired, the union will go on strike. Going on this strike would be a breach of contract, but not a crime. The company fired the worker because they didn’t want an illegal strike The company paid the worker the minimum termination pay. Worker sued the union for the tort of intimidation, even though the union did nothing directly to the worker. Slide temporarily deleted Business tort - Conspiracy Lawful Act Conspiracy: ○ Two or more persons agree to act together with primary purpose of causing plaintiff to suffer financial loss ○ Aggressive competition by a person or business generally fine Unlawful Act Conspiracy ○ Two or more persons agree to act together to commit an unlawful act, and should have known their actions may hurt plaintiff ○ Do not need to prove what their primary purpose was Lawful act conspiracy? Public group called “Friends of the Lubicon” claimed that a logging company had interfered with First Nations land rights. Friends of the Lubicon organized protests and boycotts which harmed the logging company’s business. Lubicon band brought a court case to decide issue Logging company sought an injunction against Friends of the Lubicon to prevent it from “Lawful Act Conspiracy” - working together to harm the logging company’s financial interests. Slide temporarily deleted Interference with Contractual Relations Where a third party induces the breach of an existing contract between two other parties—for example, where a new employer offers a position to someone who it knows must break their employment contract to accept the new position. But why? For example, the new employer may be liable in tort to the former employer if: ○ Former employer had a valid and enforceable contract with the employee ○ The new employer knew of the existence of the contract ○ The new employer intended to procure a breach of this contract ○ Caused the breach of contract ○ As a result of the breach, the former employer suffered damages Defences to Intentional Torts Complete defences: consent, legal authority, self-defence, necessity in some cases Partial defences: to reduce damages for plaintiff’s partial responsibility provocation, contributory negligence Consent Consent must be free and informed, but can be either express or implied No ‘consent’ if plaintiff was tricked or threatened Consent is revocable in most circumstances There is implied consent in limited cases, e.g., implied consent to receive life-saving assistance Consider blood transfusion slide. Consent could not be implied. She was carrying a card in her purse Self-Defence Right to protect oneself from violence and the threat of violence Available only if person is at immediate risk Cannot use more force than necessary Also applies to defence of a third party Battered wife defence - she had been repeatedly abused and terrorized, and then shot him in the back of the head because she knew it would continue and she was afraid for her life. Necessity Defendant’s actions are justified by an emergency where immediate action required to avoid some calamity if the benefits flowing from defendant’s conduct outweigh the harm caused Generally a complete defence, but defendant may still have some responsibility e.g. doctor giving urgent care to unconscious patient e.g. tearing down house to prevent spread of fire Partial Defences Provocation Words or actions that would cause a reasonable person to lose self-control Typically, defendant “snaps” after being taunted or insulted Contributory Negligence when the plaintiff is partially responsible for the injury damages reduced to reflect the plaintiff’s contribution to the injury