Documentation:Torts/Excuses

From UBC Wiki
TORT LAW
CASEBOOK
Introduction
Dignitary Torts
Defamation • Discrimination • Harassment • Intentional infliction of mental suffering • Invasion of privacy • Trespass to the person
Property Torts
Interference with goods • Interference with land • Non-natural use of land • Private nuisance • Public nuisance
Negligence Tort
Duty of care • Breach of duty • Damage • Causation • Remoteness
Negligence Categories
Employment • Environmental pollution • Harmful products • Hosting patrons and guests • Infliction of mental injury • Misrepresentation • Occupation of premises • Professional services • Public authorities • Pure economic loss • Relational economic loss • Rescuers • Shoddy goods or structures • Treatment of indigenous children • Unborn children
Dishonesty & Abuse of Position Torts
Abuse of process • Breach of confidence • Conspiracy • Fraud • Inducing breach of contract • Injurious falsehood • Intimidation • Malicious prosecution • Misfeasance in public office • Passing off • Spoliation • Unlawful interference with economic interests
Strict Liability
Keeping dangerous animals • Non-natural use of land • Ultrahazardous activities • Vicarious liability
Defences
Apportionment of liability • Consent • Defamation defences • Defence of property • Denials • Excuses • Illegality • Legal authority • Limitation • Necessity • Self-defence
Remedies
Apologies • Damages • Injunctions • Insurance • Legal costs • Mitigation • Proprietary
Tort Law & Legal Systems
Charter values • Class actions • Concurrent actions • Constitutional torts • Indigenous dispute resolution • No-fault compensation schemes
Tort Theory
Instrumental theories • Constructive theories • Critical theories • Reflexive theories
Study Resources
1L strategy • Answer exercises • Quizzes • Beswick's course site • Opening Up Tort Law Project
Index
80x15.png

Excuses

Generally, tort law does not recognize excuses as viable defences capable of shielding a defendant from liability.[1]

Excuses involve a wrongdoer attempting "to explain her misconduct as the result of her having been defeated, overcome, or misled by a certain kind of force or influence, or of having been otherwise pushed into wrongful conduct by a feature of the circumstances in which she acted."[2]

Provocation

As an excuse, a plaintiff's provocation is no defence against tort liability. Provocation may militate against an award of punitive damages, and in some jurisdictions provocation may serve to mitigate the compensatory damages that might otherwise be awarded.[3] The Canadian law concerning the relevance of provocation to an award of damages has been described as "muddled."[4]

There are number of possible reasons why provocation is not a defence in tort. These include the common law's desire to discourage vengeance and retributive justice through self-help and the idea that a plaintiff who has suffered a wrong should be made whole through an award of compensatory damages.[5]

In Lane v. Holloway, the defendant punched the plaintiff in the eye following a series of interactions including the plaintiff insulting the defendant's wife and punching the defendant in the shoulder.[6] Denning LJ held that:

The defendant has done a civil wrong and should pay compensation for the physical damage done by it. Provocation by the plaintiff can properly be used to take away any element of aggravation. But not to reduce the real damages.[7]

Duress

Duress occurs when someone threatens "injury to a person or to third parties unless the former commits a tort".[8] In the classic case of Gilbert v. Stone,[9] the defendant claimed he was forced by a threatening mob to enter the plaintiff's land and take his property. Duress by the mob was held to not be a defence to the plaintiff's trespass claim, because (1) the mob's threats had not robbed the defendant of his volition over his actions; (2) the plaintiff should not be burdened to pursue a tort claim against third parties when the direct tortfeasor was the defendant; (3) any damages paid by the defendant could in principle be recovered by the defendant in a tort action against those who threatened him; (4) an independent defence of duress may be superfluous given its overlap with the doctrine of necessity.[8]

Mistakes

A "[m]istake refers to the situation where the defendant intends to produce a particular result but mistakenly believe that his or her conduct is innocent".[10]

Mistakes of fact

Mistakes of fact are no defence for tortious actions.[11]

For example, in Wilson v. New Brighton Panelbeaters Ltd, the respondent was tricked into towing the appellant's vehicle, which was then stolen by a third party.[12] The defendant's mistaken belief did not operate as "a general defence either to trespass or conversion."[13] If it did, the innocent owner of the vehicle that had been taken would have been left without recourse.

In some cases, a mistake of fact shows that "the requirements for liability have not been met".[14] This occurs where "wrongful motive, or reasonableness is a condition of liability," and the mistake of fact has the effect of showing there was no such motive or reasonableness; however this is distinct from operating as a defence.[14]

Mistakes of law

Mistakes of law are no defence for a tortious actions.[11] Mistakes of law are a defendant's failure to "apprehend the tortious character of his or her conduct" when they are "in full possession of all facts of the situation".[10]

This issue may arise in cases involving police officers.[15] The Supreme Court of Canada has held that "a lawful arrest cannot be based on a mistake of law".[16] So if an officer arrests someone for a non-existent crime, the arrest may well be tortious because there is no positive authority that justifies the interference with the plaintiff's person.

Discussion questions

  • Some excuses have a recognized counterpart in criminal law (e.g. provocation). Should tort law recognize excuses as defences?
  • J.P. Goldberg wrote in his article Inexcusable Wrongs that "Tort law has little patience for excuses. Criminal law is much more forgiving". What does he mean by that? Do you agree with his argument?

Quiz


  1. ↑ Goudkamp, James; Nolan, Donal (2020). Winfield & Jolowicz on Tort. London: Sweet & Maxwell. 26-115.
  2. ↑ Goldberg, JCP (2015). "Inexcusable Wrongs". California L Rev. 103: 472. (§6.1).
  3. ↑ See e.g. Goudkamp, James; Nolan, Donal (2020). Winfield & Jolowicz on Tort. London: Sweet & Maxwell. 26-116.
  4. ↑ Wang v. Niu, 2023 BCCA 153, [33].
  5. ↑ Blay, S.K.N. (1 December 1988). "Provocation in Tort Liability A Time for Reassessment" (PDF). QUT Law Review. 4: 152–159. doi:https://doi.org/10.5204/qutlr.v4i0.299 Check |doi= value (help).
  6. ↑ Lane v. Holloway, [1967] EWCA Civ 1 (§6.2.1.2) at para 1.
  7. ↑ Lane v. Holloway, [1967] EWCA Civ 1 (§6.2.1.2) at para 9.
  8. ↑ 8.0 8.1 Goudkamp, James; Nolan, Donal (2020). Winfield & Jolowicz on Tort. London: Sweet & Maxwell. 26-117.
  9. ↑ Gilbert v. Stone (1648), 82 ER 539 (KB) (§6.2.1.1).
  10. ↑ 10.0 10.1 Durbin, Edwin. "Torts – Nature of Tort Law and Liability". WestlawNext Canada.
  11. ↑ 11.0 11.1 Jones, Michael A; Dugdale, Anthony M; Simpson, Mark, eds. (2020). Clerk & Lindsell on Torts (23 ed.). London, UK: Sweet & Maxwell. 3-170.
  12. ↑ Wilson v. New Brighton Panelbeaters Ltd, [1989] 1 NZLR 74 (HC) (§6.2.3.1) at para 1.
  13. ↑ Wilson v. New Brighton Panelbeaters Ltd, [1989] 1 NZLR 74 (HC) (§6.2.3.1) at para 24.
  14. ↑ 14.0 14.1 Jones, Michael A; Dugdale, Anthony M; Simpson, Mark, eds. (2020). Clerk & Lindsell on Torts (23 ed.). London, UK: Sweet & Maxwell. 3-171.
  15. ↑ See e.g. R v. Tim, 2022 SCC 12 (§6.2.4.1).
  16. ↑ R. v. Tim, 2022 SCC 12 (§6.2.4.1) at para 27.
Retrieved from "https://wiki.ubc.ca/index.php?title=Documentation:Torts/Excuses&oldid=858882"