https://wiki.ubc.ca/api.php?action=feedcontributions&feedformat=atom&user=SamuelBeswickUBC Wiki - User contributions [en]2026-07-22T18:07:28ZUser contributionsMediaWiki 1.43.9https://wiki.ubc.ca/index.php?title=Documentation:Torts/Critical_theories&diff=899285Documentation:Torts/Critical theories2026-06-18T21:19:27Z<p>SamuelBeswick: /* Critical race theory */</p>
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<div>{{Infobox Torts}}<br />
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Critical theories aim to present tort law in terms of what is understood to be actually going on in the real world, rather than in terms of what tort law tries to do or purports to be. Critical theorists are concerned with the social, political and cultural dimensions of civil liability. They critique tort law and the tort system in terms of its impacts on disadvantaged groups.<br />
[[File:Tort-law-logo-medium(1).png|alt=Tort Law and Social Equality Project|left|thumb|138x138px|Scholars such as those involved in the [https://www.tortlawandsocialequality.ca/ Tort Law and Social Equality Project] scrutinize tort law's relationship with society and social justice. ]]<br />
The critical legal studies movement emerged in United States law schools the 1960s. From it branched movements in feminist legal studies and critical race theory. While these theory camps fall under the umbrella of critical theories of law, their contemporary manifestations encompass a wide variety of ideas and ambitions. <br />
<br />
== Critical legal studies ==<br />
[https://en.wikipedia.org/wiki/Critical_legal_studies Critical legal studies] (CLS) is a movement that arose in response to perceived formalist thinking in law. Rather than studying the common law as a collection of authoritative legal materials, the critical legal studies movement sought to show how doctrines of law are a facade that serve to uphold the interests of the privileged classes. Critical legal studies rebuked the traditional conceptions of legal theory and even the foundations of the common law itself.<ref>{{Cite journal|last=Hutchinson, Allan C. and Patrick J. Monahan|first=|date=1984|title=Law, Politics, and the Critical Legal Scholars: The Unfolding Drama of American Legal Thought|url=|journal=Stanford Law Review|volume=36|pages=199|via=}}</ref><br />
{| class="wikitable" style="float:right;margin-left;10px;width:30%"<br />
! style="background-color:#CEE0F2" |Understanding the influence of critical legal studies in the film "The Crits"<ref>Elaine McArdle [https://hls.harvard.edu/today/the-influence-of-critical-legal-studies/ "The Influence of Critical Legal Studies"] ''Harvard Law School'' (11 August 2021)</ref><br />
|-<br />
|{{#widget:Iframe|url=https://player.vimeo.com/video/241232271?h=889c6563d1|width=100%|height=100|border=0}}A film by Jeannie Suk Gersen highlights the evolution of the critical legal studies movement. <br />
|}Critical legal studies emerged in the early 1960s alongside a growth of sociological interpretations of jurisprudence.<ref>{{Cite book|url=https://doi.org/10.1093/actrade/9780199687008.003.0006|title=Philosophy of Law: A Very Short Introduction|last=Wacks|first=Raymond|publisher=Oxford Academic|year=2014|isbn=|location=|pages=114|chapter=Critical legal theory}}</ref> It has been said the movement was born in 1977 at a conference in Wisconsin, which prompted a proliferation of articles speaking to the visions of CLS.<ref>{{Cite journal|last=Salojäri|first=Juhana|date=2019|title=A Counter-Culture of Law: Jurisprudential<br />
Change and the Intellectual Origins of<br />
the Critical Legal Studies Movement|url=|journal=American Journal of Legal History|volume=59|pages=411|via=}}</ref> CLS became a disruptive force in Western legal academia, tying together [https://en.wikipedia.org/wiki/Marxism marxism], [https://en.wikipedia.org/wiki/Sociology sociology], and [https://en.wikipedia.org/wiki/Postmodernism postmodernism] and in contrast to conventional approaches to Western law. Instead of the law merely being a set of rules with a purported aim, CLS critiqued how the law reproduces political, social and economic power and inequality in society.<ref name=":5" /> They sought to expose "fictions or illusions" of black letter law that gave the view that the law is a neutral and objective system.<ref name=":5">{{Cite book|url=https://doi.org/10.1093/actrade/9780199687008.003.0006|title=Philosophy of Law: A Very Short Introduction|last=Wacks|first=Raymond|publisher=Oxford Academic|year=2014|isbn=|location=|pages=108|chapter=Critical legal theory}}</ref> <br />
<br />
Leading thinkers in critical legal studies are Harvard academics [https://en.wikipedia.org/wiki/Duncan_Kennedy_(legal_philosopher) Duncan Kennedy] and [https://en.wikipedia.org/wiki/Roberto_Mangabeira_Unger Roberto Unger]. In his 1983 text, Unger set his aims to "undermine the central ideas of modern legal thought" and replace it with a conception that "informs a practice of politics."<ref name=":0">{{Cite journal|last=Unger|first=Roberto|date=1983|title=The Critical Legal Studies Movement|url=|journal=Harvard Law Journal|volume=91-96|pages=563|via=}}</ref> For Unger, CLS was a movement in "thought and practice" aimed at social transformation of the legal system.<ref name=":0" /> This movement had a variety of social aims, including: <br />
<br />
* questioning dominant norms of power structures of the law;<br />
* exploring ideological bias of legal theory;<br />
* supporting marginalized groups;<br />
* questioning the objectivity of legal truth; <br />
* promoting social transformation.<br />
<br />
However, after the 1980s CLS seemed to reach its end. It has been suggested that the demise of the school came in part from CLS manifesting as a way of thinking rather than as a coherent theory.<ref name=":1">{{Cite journal|last=Salojäri|first=Juhana|date=2019|title=A Counter-Culture of Law: Jurisprudential Change and the Intellectual Origins of the Critical Legal Studies Movement|url=|journal=American Journal of Legal History|volume=59|pages=443|via=}}</ref> <br />
{| class="wikitable" style="width: 70%"<br />
! style="background-color:#F2E0CE" |''Mustapha v. Culligan'' <ref name=":8">''Mustapha v. Culligan'' [2008] SCC 27 ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#17_1_3_Mustapha_v__Culligan__2008__SCC_27 §17.5.3]) at para 18.</ref> <br />
|-<br />
|Despite the perceived failure to produce an organized theory, critical legal studies remains an influential form of legal analysis today. Ted Decoste notes that in the law, "real persons" are transformed into legal subjects, such as 'plaintiffs', 'defendants' and the 'accused',<ref>{{Cite book|title=Tort Theory|last=Decoste|first=Ted|publisher=Captus University Publications|year=|isbn=|editor-last=Cooper-Stephenson|editor-first=Ken|location=|pages=254|chapter=Taking Torts Progressively|editor-last2=Gibson|editor-first2=Elaine}}</ref> thus robbing these people of the "realities of social life".<ref name=":2">{{Cite book|title=Tort Theory|last=Decoste|first=Ted|publisher=Captus University Publications|year=|isbn=|editor-last=Cooper-Stephenson|editor-first=Ken|location=|pages=256|chapter=Taking Torts Progressively|editor-last2=Gibson|editor-first2=Elaine}}</ref> In practice, he argues that law both denies and denigrates difference, by "prohibiting discourse on the particularities of social being" (e.g., race, class and gender) and requires those who come before the law to abandon their lived realities.<ref name=":2" /> Decoste's application of critical legal studies has some explanatory power for cases where judges must confront cultural or religious practices or norms.<br /><br />
<br />
Decoste's argument may be applicable to the decision in ''Mustapha v. Culligan'', in which the Supreme Court of Canada overturned a lower court's decision holding a water bottling company liable for negligently inflicting mental suffering through delivering a tainted product, noting that the judge "applied a subjective standard" that took into account the plaintiff's "cultural factors."<ref name=":8" /> Legal doctrine applies an objective standard of a person with "ordinary fortitude" in cases such as this, but CLS provides arguments for questioning the role of objectivity in tort law, and its potential ramifications.<br />
<br />
|}<br />
<br />
=== Critiques of critical legal studies ===<br />
<br />
==== Tort law can be a tool for social good ====<br />
Although tort law has often been used by more powerful and wealthy entities as a tool of oppression, there are instances in which tort law has empowered a weaker plaintiff to seek recourse against a much stronger defendant, such as the government or a large corporation. For example, in ''Binsaris v. Northern Territory'', the plaintiffs were successfully able to sue the government for an incident of state-sanctioned battery in a correctional facility.<ref>''Binsaris v. Northern Territory'' [http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2020/22.html <nowiki>[2020] HCA 22</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#2_2_4__Binsaris_v__Northern_Territory__2020__HCA_22 §2.2.4])</ref> This is also illuminated in ''Boucher v. Wal-Mart'': a former Wal-Mart employee was compensated for the persistent harassment she endured from her supervisor while working at the retail store.<ref>''Boucher v. Wal-Mart'' [https://www.canlii.org/t/g6xvb <nowiki>[2014] ONCA 419</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#3_2_3__Boucher_v__Wal_Mart__2014__ONCA_419 §3.2.3])</ref> Ultimately, while critical legal theories aim to shed light on the hierarchical nature of the law of tort, many cases show the diversity of outcomes that may not always support critical theories.<br />
<br />
==== Critical legal studies lacks foundation ====<br />
Theorists have argued that CLS lacks a unified foundation, barring the possibility of an effective transformation of the legal system.<ref>{{Cite journal|last=Philippe Oliveira|first=de Almeida|date=2018|title=The Neoliberalism and the Crisis of Critical Legal Studies/ O Neoliberalismo e a Crise Dos Critical Legal Studies|journal=Revista Direito e Práxis|volume=9}}</ref> Given that CLS spanned philosophy, politics, economics, and sociology, the breadth of the discourse prohibited the cultivation of and unified theory that could be used in alternative to formalist theories.<ref name=":1" /> For Peter Gabel, writing in 2009, "CLS “stopped”, or perhaps “paused,” about fifteen years ago because it lost track of [its] spiritual and moral foundation".<ref>{{Cite journal|last=Gabel|first=Peter|date=2009|title=Critical Legal Studies as a spiritual practice|journal=Pepperdine Law Review|volume=36|pages=528}}</ref><br />
<br />
==== Critical legal studies was espoused primarily by white male academics ====<br />
Some have criticized how the CLS movement seemed to be dominated by white male academics.<ref>{{Cite journal|last=Subotnik|first=Daniel|date=1998|title=What’s Wrong with Critical Race Theory: Reopening the Case for Middle Class Values|journal=Cornell Journal of Law and Public Policy|volume=7|pages=683}}</ref> This perhaps led to a marginalization of the very underrepresented viewpoints that their theory sought to unearth. It was in part as a response to these concerns that feminist legal theories as well as critical race theories were born. <br />
<br />
== Feminist legal theory ==<br />
[https://en.wikipedia.org/wiki/Feminist_legal_theory Feminist legal theory] addresses how "traditional jurisprudence" has "conspicuously overlooked the position of women".<ref name=":9">Wacks, Raymond (2014). "Critical legal theory". ''[https://doi.org/10.1093/actrade/9780199687008.003.0006 Philosophy of Law: A Very Short Introduction]''. Oxford Academic. pp.&nbsp;121.</ref> Feminist legal theorists seek to analyze, critique and transform the legal system to facilitate gender equity. Feminist legal theory arose alongside broader feminist movements in the 1970s, and was solidified with the work of scholars such as [https://en.wikipedia.org/wiki/Martha_Albertson_Fineman Martha Fineman] who founded the [https://en.wikipedia.org/wiki/Feminism_and_Legal_Theory_Project Feminism and Legal Theory Project at the University of Wisconsin Law]. Fineman wrote that feminist legal theory "drifts between the extremes of 'grand theory' which is totalizing in its scope and ambitions, and personal narratives which begin and end with the presentation of one individual's unique experiences". <ref>{{Cite journal|last=Fineman|first=Martha|date=1990|title=Challenging Law, Establishing Differences: The Future of Feminist Legal Scholarship|url=https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2132315|journal=Florida Law Review|volume=42|pages=25|via=}}</ref> Today, feminist legal theorists approach law through a range of theoretical models that include anti-essentialism, postmodernism, sexual difference, and liberal equality.<ref name=":9" /> While feminist legal theory boasts an array of modes of thinking, theorists are broadly united by core values of equity, subjectivity, and anti-oppression.<br />
<br />
While feminist legal theory spanned all categories of law, many scholars including [https://www.law.upenn.edu/faculty/raustin Regina Austin], [https://www.fordham.edu/school-of-law/faculty/directory/visiting/martha-chamallas/ Martha Chamallas] and [https://law.syracuse.edu/deans-faculty/emeriti/leslie-bender/#:~:text=Professor%20Bender's%20scholarship%20includes%20published,and%20feminist%20legal%20theory%20anthologies. Leslie Bender] took a particular interest in tort law, to which they applied a feminist critique. In ''The Measure of Injury: Race, Gender, and Tort Law'', [https://wgss.osu.edu/people/chamallas.1 Martha Chamallas] and [https://mainelaw.maine.edu/faculty/profile/jennifer-b-wriggins/ Jennifer Wriggins] outline how compensation in tort law is affected by gender and race.<ref>{{Cite book|title=The Measure of Injury: Race, Gender, and Tort Law|last=Martha Chamallas, Jennifer B. Wriggins|first=|publisher=NYU Press|year=2010|isbn=|location=New York|pages=}}</ref> After reviewing a range of case law, the authors noted that tort law's reliance on precedent and statistical models to determine the quantity of damages awarded to plaintiffs can serve to severely disadvantage women while "yield[ing] significantly higher awards for white men".<ref>{{Cite book|url=https://muse-jhu-edu.eu1.proxy.openathens.net/book/11137|title=The Measure of Injury: Race, Gender, and Tort Law|last=Chamallas|first=Martha|last2=Wriggins|first2=Jennifer B.|publisher=NYU Press|year=2010|isbn=|location=|pages=5|chapter=Introduction}}</ref> For Chamallas and Wriggins, the use of historical data when determining remedies is particularly problematic since it allows for "historical patterns of wage discrimination in the labour market" to be replicated in tort awards, despite the rapidly changing socio-economic situation of historically marginalized groups".<ref>{{Cite book|url=https://muse-jhu-edu.eu1.proxy.openathens.net/book/11137|title=The Measure of Injury: Race, Gender, and Tort Law|last=Chamallas|first=Martha|last2=Wriggins|first2=Jennifer|publisher=NYU Press|year=2010|isbn=|location=|pages=159|chapter=Damages}}</ref> [https://research.monash.edu/en/persons/janice-richardson Janice Richardson] adds that lower damages awarded to women in tort cases demonstrate how courts "make a public statement about the worth of women".<ref>{{Cite book|title=Feminist Perspectives on Tort Law|last=Richardson|first=Janice|last2=Rackley|first2=Erika|publisher=Routledge|year=2012|isbn=|location=|pages=2|chapter=Introduction}}</ref> <br />
<br />
Feminist critiques are particularly prominent in areas of tort law where women tend to experience higher likelihood of being victims to tortious acts, including harassment, invasion of privacy, and battery.<ref>{{Cite book|title=Research Handbook on Feminist Jurisprudence|last=West, Robin and Cynthia Grant Bowman|first=|publisher=Edward Elgar Publishing|year=2019|isbn=|location=Cheltenham|pages=387}}</ref> Many scholars view tort law to be historically “insensitive to the particular wrongs suffered by women.”<ref>{{Cite journal|last=Conaghan|first=Joanne|date=1993|title=Harassment and the Law of Torts: Khorasandjian v. Bush|url=|journal=Feminist Legal Studies|volume=1|pages=196|via=}}</ref> This is particularly evident as theorists argue tort law can be interpreted to operate upon a reasonable person standard that is vulnerable to the "male norm." As a result, some argue that bias towards dominant masculine norms may "skew legal analysis" away from women's experiences. <ref>{{Cite journal|last=Bender|first=Leslie|date=1988|title=A Lawyer's Primer on Feminist Theory and Tort|url=|journal=Journal of Legal Education|volume=38|pages=20|via=}}</ref> Some Courts have acknowledged legal bias, such as Justice Feasby in ''Alberta Health Services v. Johnston'' who noted that "[[Sandbox:Torts/Harassment|harassment]] is something that can happen to anyone, but it disproportionately affects women and members of other marginalized groups."<ref name=":7">''Alberta Health Services v. Johnston'', [https://www.canlii.org/en/ab/abkb/doc/2023/2023abkb209/2023abkb209.html 2023 ABKB 209 (CanLII)] at para 85.</ref><br />
{| class="wikitable" style="width: 100%"<br />
! style="background-color:#F2E0CE" |''McHale v. Watson'' <ref>''McHale v. Watson'' [1966] HCA 13 ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#14_1_4_1__McHale_v__Watson__1966__HCA_13 §14.1.4.1]).</ref> <br />
|-<br />
|Cases such as ''[http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1966/13.html McHale v. Watson]'' can be analysed through a feminist lens. The Court considered whether a 12 year old boy should be held liable for injury he carelessly caused to a 9 year old girl while out playing. A majority applied a defendant-friendly standard of the reasonable child and on that standard dismissed the girl's claim. Chief Justice Mctiernan averred, "[t]he defendant’s conduct in relation to this object which he threw, a useless piece of scrap metal, is symbolic of the tastes and simplicity of boyhood."<ref>''McHale v. Watson'' [1966] HCA 13 ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#14_1_4_1__McHale_v__Watson__1966__HCA_13 §14.1.4.1]) at para 16.</ref> <br />
While tort law purports to adopt an objective standard, the emphasis in this case on the defendant's gender (boys will be boys) makes it vulnerable to feminist critiques that in practice the law of tort has a male bias. <br />
<br />
|}<br />
=== Critiques of feminist legal theory ===<br />
<br />
==== Against essentialism ====<br />
While feminist legal theory has been a strong force in critical explanations of tort law, detractors have argued much of the theory is overly essentialist. As many early feminist legal scholars emphasized the different experiences of women, grouping them in contrast to the experience of men, some theorists have noted the potential for trivialization of the experiences of women. This is especially relevant given the diversity of experiences women face, particularly those who experience intersecting forms of oppression such as women of colour, queer women, and transgender women.<ref>{{Cite book|title=Gay Priori: A Queer Critical Legal Studies Approach to Law Reform|last=Alder|first=Libby|publisher=Duke University Press|year=2018|location=Durham|pages=9}}</ref> These is also often silence or disagreement within feminist legal theories regarding the experiences of transgender women and non-binary persons, who also may experience marginalization due patriarchal norms in the common law.<ref>{{Cite journal|last=Allen|first=Anita|date=2010|title=Privacy Torts: Unreliable Remedies for LGBT Plaintiffs|url=|journal=California Law Review|volume=98|pages=|via=}}</ref><br />
<br />
==== Public and private law distinction ====<br />
In addition, many feminist legal theorist do not acknowledge the divergence in public and private law systems. Unlike public law, where the state may act as agent for women who are advancing claims against a defendant, tort law is "designed to provide damages for harm by individually suing for compensation those responsible for that harm," emboldening victims to have the opportunity for private redress.<ref name=":3">{{Cite book|title=Femicide, Criminology and the Law|last=Dayan|first=Hava|publisher=Routledge|year=2022|isbn=|location=New York|pages=139, 144}}</ref> Hava Dayan notes that tort law can be viewed as a potential tool for counting femicide and addressing gaps created by criminal law.<ref name=":3" /> Yet, Dayan still concludes that this type of action comes with a significant price tag worthy of acknowledgement.<br />
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== Critical race theory ==<br />
{| class="wikitable" style="float:right;margin-left;10px;width:30%"<br />
! style="background-color:#CEE0F2" |Khiara M. Bridges on Critical Race Theory as a verb<br />
|-<br />
|In this episode of the ''Dissenting Opinions'' host Will Baude discusses with UC Berkeley Law professor Khiara M. Bridges about the definition of critical race theory and its applications. <br />
{{#widget:Iframe|url=https://player.simplecast.com/1dd30301-2654-4bff-9106-472423194112?dark=false|width=100%|height=100|border=0}}<br />
<br />
See more episodes of the series: <br />
<br />
2. [https://dissenting-opinions.simplecast.com/episodes/critical-race-theory-is-a-verb We're Actually in a Haunted House] (structural racism)<br />
<br />
3. [https://dissenting-opinions.simplecast.com/episodes/taking-the-easy-way-out Taking The Easy Way Out] (implicit bias)<br />
<br />
4. [https://dissenting-opinions.simplecast.com/episodes/liberation-isnt-a-zero-sum-game Liberation Isn't a Zero-Sum Game] (intersectionality)<br />
<br />
5. [https://dissenting-opinions.simplecast.com/episodes/life-of-the-mind Life of the Mind] (education)<br />
<br />
6. [https://dissenting-opinions.simplecast.com/episodes/life-of-the-bodyLife&#x20;of&#x20;the&#x20;Body Life of the Body] (health)<br />
<br />
7. [https://dissenting-opinions.simplecast.com/episodes/how-and-why-race-matters Finale]<br />
|}<br />
[https://en.wikipedia.org/wiki/Critical_race_theory Critical race theory] (CRT) emerged in the 1970s in the United States on the tails of the 1960s civil rights era.<ref>{{Cite book|title=Critical Race Theory: An Introduction|last=Delgado|first=Richard|publisher=New York University Press|year=2001|isbn=|location=New York|pages=4}}</ref> Lawyers, activists, and legal scholars sought to unearth the relationship between race, law, and society. Critical race theorists argue that America's historical foundations of racial subordination through slavery, colonialism, and conquest have "managed to inform, shape, limit and influence" our legal reality. <ref>{{Cite book|title=Law, Lawyers and Race|last=Möschel|first=Mathias|publisher=Routledge|year=2014|isbn=|location=London|pages=8-9}}</ref> Raymond Wacks states that the core idea of CRT is that the formal constructs of law, while claiming to be neutral, in practice reflect "the reality of a privileged, elite, male, white majority". <ref name=":4" /> Racial minorities (and gender, sexuality and socio-economic minorities, in a broader sense) are therefore confined to the "margins of legal existence".<ref name=":4">Wacks, Raymond (2014). "Critical legal theory". ''[https://doi.org/10.1093/actrade/9780199687008.003.0006 Philosophy of Law: A Very Short Introduction]''. Oxford Academic. pp.&nbsp;126–128.</ref><br />
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Although the subject of race in the area of torts has not attracted mainstream attention, [https://www.fordham.edu/school-of-law/faculty/directory/visiting/martha-chamallas/ Martha Chamallas] argues that from "the types of claims recognized, to application of basic torts concepts, to judgments about causation, to valuation of injuries" tort law is influenced by constructions of race and ethnicity. <ref>{{Cite book|title=The Oxford Handbook of Race and Law in the United States|last=Carbado|first=|publisher=Oxford University Press.|year=2023|isbn=|location=|pages=}}</ref> Chamallas attributes this to "unconscious cognitive bias that affects legal reasoning, and the tacit measures by which the law places a dollar value on human suffering".<ref>{{Cite book|title=The measure of injury : race, gender, and tort law|last=Chamallas|first=Martha|publisher=New York University Press|year=2010|isbn=|location=New York|pages=1}}</ref> Critical race theory therefore rejects legal notions that tort law exists in a vacuum outside of socio-cultural dynamics.<ref>{{Cite book|url=https://muse.jhu.edu/book/11137|title=The Measure of Injury|last=Chamallas|first=Martha|last2=Wriggins|first2=Jennifer|publisher=NYU Press|year=2010|isbn=|location=|pages=183-190|chapter=Conclusion}}</ref><br />
{| class="wikitable" style="width: 60%"<br />
! style="background-color:#F2E0CE" |''Hill v. Hamilton-Wentworth Regional Police Services Board'' <ref>''Hill v. Hamilton-Wentworth Regional Police Services Board'' [2007] SCC 41 ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#14_2_5_1__Hill_v__Hamilton_Wentworth_Regonal_Police_Services_Board__2007__SCC_41 §14.2.5.1]).</ref> <br />
|-<br />
|Critical Race Theory is a lens through which we can analyze cases like ''Hill v. Hamilton-Wentworth Regional Police Services Board''. Chief Justice McLachlin stated that "[r]ecognizing an action for negligent police investigation may assist in responding to failures of the justice system, such as wrongful convictions or institutional racism."<ref>''Hill v. Hamilton-Wentworth Regional Police Services Board'' [2007] SCC 41 ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#14_2_5_1__Hill_v__Hamilton_Wentworth_Regonal_Police_Services_Board__2007__SCC_41 §14.2.5.1]) at para 36.<br />
</ref> Chief Justice McLachlin's decision to recognize this novel claim of negligence is an acknowledgment of the the way in which institutional racism informs legal realities, and attempts to use tort law to respond to institutional bias. And yet, her judgment holding that on the facts of the case no duty to the indigenous plaintiff was breached by the police may also be critiqued through the lens of CRT.<ref>{{Cite web|date=2023|title=Jason Hill: Case Summary|url=https://www.wrongfulconvictions.ca/cases/jason-hill|url-status=live|website=Canadian Registry of Wrongful Convictions}}</ref><br />
<br />
|}Lucie Léger, argues that tort law could expand its recognition of injuries to include "harms suffered by members of minority groups on account of their minority status", as a way to "achieve equality in Canadian society".<ref name=":6">{{Cite book|title=Tort Theory|last=Léger|first=Lucie|publisher=Captus University Publications|year=1993|isbn=|editor-last=Cooper-Stephenson|editor-first=Ken|location=|pages=167|chapter=The Culture of Tort in a Pluralist Society|editor-last2=Gibson|editor-first2=Elaine}}</ref> Since the main consequences of discriminatory acts, such as racist remarks, are psychological, traditional torts do not cover this sort of conduct.<ref>{{Cite book|title=Tort Theory|last=Léger|first=Lucie|publisher=Captus University Publications|year=1993|isbn=|editor-last=Cooper-Stephenson|editor-first=Ken|location=|pages=169-170|chapter=The Culture of Tort in a Pluralist Society|editor-last2=Gibson|editor-first2=Elaine}}</ref> Léger proposes that nominating more Canadian judges from minority groups can "lead to the incorporation of a greater range of human and cultural values" in the legal system.<ref name=":6" /><br />
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=== Critiques of Critical Race Theory ===<br />
<br />
==== Critical race theory is "divisive" ====<br />
Critical race theory has largely been politicized in the United States in recent years, drawing widespread political criticism to the theory.<ref>{{Cite web|last=Oputu|first=Edirin|date=2021|title=Untangling the controversy around critical race theory|url=https://news.temple.edu/news/2021-08-05/untangling-controversy-around-critical-race-theory|url-status=live}}</ref> For some, it is divisive, and "offers a false sense of racial difference". <ref>{{Cite journal|last=Mocombe|first=Paul C.|date=2014|title=Against Critical Race Theory|journal=Ethnic Studies Review|pages=83}}</ref> In Florida, Governor Ron DeSantis took steps to ban the teaching of critical race theories in high school under the [https://en.wikipedia.org/wiki/Stop_WOKE_Act#:~:text=The%20Individual%20Freedom%20Act%2C%20commonly,training%20in%20schools%20and%20workplaces. Stop WOKE Act],<ref>{{Cite web|last=Alfonseca|first=Kiara|date=2022|title=Florida Gov. Ron DeSantis’ anti-critical race theory law to take effect|url=https://abcnews.go.com/Politics/florida-gov-ron-desantis-anti-critical-race-theory/story?id=85555497|url-status=live}}</ref> although it would be surprising if high schoolers had been reading the works of legal scholars such as Chamallas. <br />
<br />
Much critical race theory criticism has taken aim at the theory's use of storytelling, deemed ineffectual by theorists like Douglas Litowitz, who states "[w]e are lawyers precisely because we do something more than listen to stories: we filter stories through the framework of legal doctrine".<ref>{{Cite journal|last=Litowitz|first=Douglas|date=1997|title=Some Critical Thoughts on Critical Race Theory|journal=Notre Dame Law Review|volume=72|pages=521}}</ref> In ''Beyond all reason: The radical assault on truth in American law'', Suzanna Sherry and Daniel Farber also criticize CRT for its lack of positivist reasoning.<ref>{{Cite journal|last=Daniel Farber & Sherry Suzanna|date=1997|title=Beyond All Reason: The Radical Assault on Truth in American Law.|journal=Oxford University Press|pages=9–11}}</ref> <br />
<br />
== References ==<br />
<references /></div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Documentation:Torts/Intimate_partner_violence&diff=899283Documentation:Torts/Intimate partner violence2026-06-18T21:13:43Z<p>SamuelBeswick: </p>
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<div>{{Infobox Torts }}<br />
<span style="font-size:200%;">{{SUBPAGENAME}}</span><br />
In ''Ahluwalia v. Ahluwalia'',<ref>''Ahluwalia v. Ahluwalia'', [https://canlii.ca/t/kkzk1 2026 SCC 16].</ref> a majority of the Supreme Court of Canada recognised a new tort of coercive control by an intimate partner. The Court provided the following summary of the elements of this tort: <blockquote>205. To summarize, in making a finding of liability under the tort of intimate partner violence, a trial judge must assess whether the evidence establishes all three elements and evaluate the quantum of damages required to remedy the resulting harm. The burden of proof rests with the plaintiff on the civil standard of balance of probabilities. <br />
<br />
206. First, the defendant’s wrongful conduct must have occurred during the course of an intimate partnership or in its aftermath.<br />
<br />
207. Second, the defendant must have intentionally engaged in the abusive conduct. The plaintiff need only show that the defendant intended to engage in the impugned conduct, not that they subjectively intended to control their intimate partner. With respect to the abusive conduct itself, the plaintiff must adduce specific evidence to make out the tort claim. However, evidence may show a range of abusive conduct that appears less harmful in isolation but which may, considered cumulatively, form a pattern of coercive control. For guidance, the following are some types of conduct that are capable of constituting coercive control: physical and sexual violence; emotional and psychological abuse, including verbal abuse; harassment, humiliation, and denigration; financial control, stalking, and surveillance; behaviour that isolates a partner from others, or that denies a partner access to educational, employment, and recreational opportunities; litigation abuse; and threatening conduct, including threatening to harm the children or take them away, and threatening to commit suicide (see United Kingdom, Home Office, ''Controlling or Coercive Behaviour: Statutory Guidance Framework'', April 5, 2023 (online), at pp. 15-16; Canadian Association of Chiefs of Police, ''National Framework for Police Intervention in Intimate Partner Coercive Control'', July 2025 (online), at pp. 5-7). The foregoing list is merely illustrative and should not be treated as exhaustive.<br />
<br />
208. Third, the plaintiff must show the conduct to be, on an objective measure, coercive control. The trial judge must determine whether a reasonable person, fully apprised of the relevant context of the relationship, would have perceived the defendant’s acts, considered cumulatively, as amounting to an assertion of control over the plaintiff that has the effect of depriving them of their dignity, autonomy, and equality in the relationship. The key feature of coercive control is, on an objective measure, the breakdown of the plaintiff’s will, manifested through a diminished power to decide important matters in their own life or to meaningfully take part in decisions that affect the intimate partnership. Neither the timing of the commencement of the claim nor when the plaintiff left the relationship has any necessary bearing on whether the plaintiff can successfully establish this element. The threshold serves an essential limiting function by anchoring the tort in the deprivation of autonomy, but where circumstances show that the reasonable person would conclude that the abusive conduct is incompatible with the intimate partnership, the burden will be readily met. In particular, courts must of course take care not to mischaracterize a victim’s resistance to a partner’s attempt at domination, or all misconduct in a high conflict breakdown, as coercive control under the new tort. Mere dysfunction of an intimate partnership, or a relationship marked by an imbalance between the parties in the absence of coercive control, is not intimate partner violence in this sense. But at the same time, trial judges must be cautious not to “subject evidence of non-physical [intimate partner violence] to heightened suspicion or skepticism, minimize it, or misattribute its harms to a high conflict relationship or post-separation emotionality” ….<br />
<br />
209. Proof by the plaintiff of these three elements establishes liability under the tort of intimate partner violence. The plaintiff’s dignitary harm flows from proof of the intentional wrong and does not require proof of other consequential harms. On this basis, the trial judge may then award general compensatory damages to provide redress for the harm to dignity, autonomy, and equality suffered through coercive control, as well as any other harm that flows therefrom.</blockquote> <br />
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<references /></div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=File:Ten_Tort_Theories.jpg&diff=899282File:Ten Tort Theories.jpg2026-06-18T21:09:41Z<p>SamuelBeswick: SamuelBeswick uploaded a new version of File:Ten Tort Theories.jpg</p>
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|description={{en|1=Ten theories of tort law}}<br />
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[[Category:Torts]]</div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Documentation:Torts/Tort_theory&diff=899281Documentation:Torts/Tort theory2026-06-18T21:07:39Z<p>SamuelBeswick: </p>
<hr />
<div>{{Infobox Torts}}<br />
<span style="font-size:200%;">{{SUBPAGENAME}}</span> <br />
<br />
The study of tort theory steps back from doctrinal "black letter" law and asks broader questions such as: what is tort law and what is tort law for?<ref>{{Cite web|last=Solum|first=Lawrence|date=22 May 2005|title=Formalism and Instrumentalism|url=https://lsolum.typepad.com/legal_theory_lexicon/2005/05/legal_theory_le_1.html|url-status=live|archive-url=|archive-date=|access-date=|website=Legal Theory Lexicon}}</ref> The search for the essence and purpose of tort law has generated scholarly debates that engage legal philosophy, politics, economics, sociology, ethics, and more. Theories of torts (and private law, and law generally) are manifold. Here, they are grouped into four broad camps understood as ''instrumental'', ''relational'', ''critical'', and ''reflexive'' views of tort law. Some theories overlap in their descriptive or normative interpretation of tort law.<ref>{{Cite journal|last=Gardner|first=John|date=23 May 2016|title=Tort Law and Its Theory|journal=Oxford Legal Studies Research Paper|volume=2}}</ref> However, we can see different principles and arguments reflected in their methodology, scope, and philosophy. Students of the law of torts should critically examine what perspectives have the most explanatory power in the array of contemporary tort law issues. <br />
== Theoretical perspectives on tort law ==<br />
[[File:10 Tort Theories.jpg|center|thumb|590x590px|[https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#11_Tort_Theory Ten theories of tort law in a nutshell] (from Professor Samuel Beswick's perspective)]]<br />
<br />
=== Instrumental theories ===<br />
[[Documentation:Torts/Instrumental theories|Instrumental or functionalist tort theories]] tend to conceive of tort law as a means of achieving particular ends in society. Tort law is explained and justified as a system for achieving certain social goals, such as the compensation of victims, deterrence of harmful conduct, or the punishment of wrongdoers. Such theories tend to adopt an external (outsiders’) perspective on tort law, by stepping back from the system and assessing and critiquing it in terms of how well tort law achieves its goals.<br />
<br />
=== Relational theories ===<br />
What might be termed interpretive or [[Documentation:Torts/Relational theories|relational theories]] tend to present tort law as "an expression of rights and duties regardless of the instrumental value of those rights and duties".<ref name=":22">{{Cite journal|last=Posner|first=Richard A.|date=Spring 2013|title=Instrumental and Noninstrumental Theories of Tort Law|url=https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=11057&context=ilj|journal=Indiana Law Journal|volume=88|issue=2|pages=469|via=Digital Repository at Maurer Law}}</ref> Theorists in this tradition seek to understand tort law not in terms of what tort law ''does'' but instead what tort law ''is'', on its own terms. These perspectives aim to adopt an internal point of view<ref>{{Cite web|last=Solum|first=Lawrence|date=2004|title=The Internal Point of View|url=https://lsolum.typepad.com/legal_theory_lexicon/2004/05/legal_theory_le.html|url-status=live|website=Legal Theory Lexicon}}</ref>—that is, the view of tort law held by judges and lawyers operating within the legal system. Prominent theories in this tradition contend that tort law is unified by a principle of corrective justice, or of rights vindication, or of civil recourse. <br />
=== Critical theories ===<br />
[[Documentation:Torts/Critical theories|Critical theorists]] aim to present tort law in terms of what is understood to be actually going on in the real world, rather than in terms of what tort law tries to do or purports to be. These theories tend to ground themselves in the systemic realities of the world tort law interacts with. Critical theorists center perspectives of those traditionally marganalized within society and by the legal system society has created and maintained. In particular, the theories illuminate the intersectional perspectives of people of colour, those with low socio-economic status, and women. They critique tort law and the tort system in terms of its impact on disadvantaged groups. <br />
<br />
=== Reflexive theories ===<br />
A [[Documentation:Torts/Reflexive theories|reflexive understanding]] of tort law rejects the idea that there is one grand theory or principle that can represent tort law in its entirety. The common law of tort is a system and practice that has developed over a millennium through adjudication of disputes, the enactment of legislation, and the lawyerly, political and scholarly advocacy of many people. Tort law can be described, theorised and critiqued variously in terms of what its doctrines and practices purport to do, actually do, and fail to achieve. As Peter Cane puts it, the only real unifying feature of tort law is that “tort law is the law of torts”.<ref name=":0">{{Cite book|title=Key Ideas in Tort Law|last=Cane|first=Peter|publisher=Hart Publishing|year=2017|isbn=|location=Oxford|pages=13–20|url=https://doi.org/10.5040/9781509909452.ch-003}}</ref><br />
<br />
== Tort law as a quilt ==<br />
The common law of torts is sometimes analogized to a grand old patchwork quilt.<ref name=":0" /> What does this mean?<br />
[[File:A Dear Jane quilt, inspired by the 1863 Jane Stickle quilt.jpg|alt=An intricate quilt|left|thumb|183x183px]]<br />
* An instrumental perspective might focus on how the quilt can be used to keep people warm or to have a picnic on. <br />
* A relational perspective might focus on what the quilt is made of and how its pieces fit together.<br />
* A critical perspective might focus on who has access to the quilt and who never gets to enjoy it. <br />
* A reflexive perspective might focus less on the quilt as a whole and more on the pieces: what they're made of, who made them, who sewed them together, how well they fit together, and what maintenance and modification might be in store for the quilt in future. <br />
<br />
<br />
[[File:Metropolitan Museum of Art (The Met) - Central Park, NYC.jpg|center|thumb|357x357px|Want to learn about famous cases and apply some tort theories? Check out the [https://www.tortmuseum.org/famous-cases/ American Museum of Tort Law.]]]<br />
<br />
== Quiz ==<br />
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<references /></div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Documentation:Torts/Tort_theory&diff=899280Documentation:Torts/Tort theory2026-06-18T21:07:28Z<p>SamuelBeswick: </p>
<hr />
<div>{{Infobox Torts}}<br />
<span style="font-size:200%;">{{SUBPAGENAME}}</span> <br />
<br />
The study of tort theory steps back from doctrinal "black letter" law and asks broader questions such as: what is tort law and what is tort law for?<ref>{{Cite web|last=Solum|first=Lawrence|date=22 May 2005|title=Formalism and Instrumentalism|url=https://lsolum.typepad.com/legal_theory_lexicon/2005/05/legal_theory_le_1.html|url-status=live|archive-url=|archive-date=|access-date=|website=Legal Theory Lexicon}}</ref> The search for the essence and purpose of tort law has generated scholarly debates that engage legal philosophy, politics, economics, sociology, ethics, and more. Theories of torts (and private law, and law generally) are manifold. Here, they are grouped into four broad camps understood as ''instrumental'', ''relational'', ''critical'', and ''reflexive'' views of tort law. Some theories overlap in their descriptive or normative interpretation of tort law.<ref>{{Cite journal|last=Gardner|first=John|date=23 May 2016|title=Tort Law and Its Theory|journal=Oxford Legal Studies Research Paper|volume=2}}</ref> However, we can see different principles and arguments reflected in their methodology, scope, and philosophy. Students of the law of torts should critically examine what perspectives have the most explanatory power in the array of contemporary tort law issues. <br />
== Theoretical perspectives on tort law ==<br />
[[File:Ten Tort Theories.jpg|center|thumb|590x590px|[https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#11_Tort_Theory Ten theories of tort law in a nutshell] (from Professor Samuel Beswick's perspective)]]<br />
<br />
=== Instrumental theories ===<br />
[[Documentation:Torts/Instrumental theories|Instrumental or functionalist tort theories]] tend to conceive of tort law as a means of achieving particular ends in society. Tort law is explained and justified as a system for achieving certain social goals, such as the compensation of victims, deterrence of harmful conduct, or the punishment of wrongdoers. Such theories tend to adopt an external (outsiders’) perspective on tort law, by stepping back from the system and assessing and critiquing it in terms of how well tort law achieves its goals.<br />
<br />
=== Relational theories ===<br />
What might be termed interpretive or [[Documentation:Torts/Relational theories|relational theories]] tend to present tort law as "an expression of rights and duties regardless of the instrumental value of those rights and duties".<ref name=":22">{{Cite journal|last=Posner|first=Richard A.|date=Spring 2013|title=Instrumental and Noninstrumental Theories of Tort Law|url=https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=11057&context=ilj|journal=Indiana Law Journal|volume=88|issue=2|pages=469|via=Digital Repository at Maurer Law}}</ref> Theorists in this tradition seek to understand tort law not in terms of what tort law ''does'' but instead what tort law ''is'', on its own terms. These perspectives aim to adopt an internal point of view<ref>{{Cite web|last=Solum|first=Lawrence|date=2004|title=The Internal Point of View|url=https://lsolum.typepad.com/legal_theory_lexicon/2004/05/legal_theory_le.html|url-status=live|website=Legal Theory Lexicon}}</ref>—that is, the view of tort law held by judges and lawyers operating within the legal system. Prominent theories in this tradition contend that tort law is unified by a principle of corrective justice, or of rights vindication, or of civil recourse. <br />
=== Critical theories ===<br />
[[Documentation:Torts/Critical theories|Critical theorists]] aim to present tort law in terms of what is understood to be actually going on in the real world, rather than in terms of what tort law tries to do or purports to be. These theories tend to ground themselves in the systemic realities of the world tort law interacts with. Critical theorists center perspectives of those traditionally marganalized within society and by the legal system society has created and maintained. In particular, the theories illuminate the intersectional perspectives of people of colour, those with low socio-economic status, and women. They critique tort law and the tort system in terms of its impact on disadvantaged groups. <br />
<br />
=== Reflexive theories ===<br />
A [[Documentation:Torts/Reflexive theories|reflexive understanding]] of tort law rejects the idea that there is one grand theory or principle that can represent tort law in its entirety. The common law of tort is a system and practice that has developed over a millennium through adjudication of disputes, the enactment of legislation, and the lawyerly, political and scholarly advocacy of many people. Tort law can be described, theorised and critiqued variously in terms of what its doctrines and practices purport to do, actually do, and fail to achieve. As Peter Cane puts it, the only real unifying feature of tort law is that “tort law is the law of torts”.<ref name=":0">{{Cite book|title=Key Ideas in Tort Law|last=Cane|first=Peter|publisher=Hart Publishing|year=2017|isbn=|location=Oxford|pages=13–20|url=https://doi.org/10.5040/9781509909452.ch-003}}</ref><br />
<br />
== Tort law as a quilt ==<br />
The common law of torts is sometimes analogized to a grand old patchwork quilt.<ref name=":0" /> What does this mean?<br />
[[File:A Dear Jane quilt, inspired by the 1863 Jane Stickle quilt.jpg|alt=An intricate quilt|left|thumb|183x183px]]<br />
* An instrumental perspective might focus on how the quilt can be used to keep people warm or to have a picnic on. <br />
* A relational perspective might focus on what the quilt is made of and how its pieces fit together.<br />
* A critical perspective might focus on who has access to the quilt and who never gets to enjoy it. <br />
* A reflexive perspective might focus less on the quilt as a whole and more on the pieces: what they're made of, who made them, who sewed them together, how well they fit together, and what maintenance and modification might be in store for the quilt in future. <br />
<br />
<br />
[[File:Metropolitan Museum of Art (The Met) - Central Park, NYC.jpg|center|thumb|357x357px|Want to learn about famous cases and apply some tort theories? Check out the [https://www.tortmuseum.org/famous-cases/ American Museum of Tort Law.]]]<br />
<br />
== Quiz ==<br />
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<references /></div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=File:10_Tort_Theories.jpg&diff=899279File:10 Tort Theories.jpg2026-06-18T21:06:49Z<p>SamuelBeswick: Uploaded own work with UploadWizard</p>
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{{self|cc-by-nc-4.0}}</div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Documentation:Torts/Tort_theory&diff=899278Documentation:Torts/Tort theory2026-06-18T21:00:25Z<p>SamuelBeswick: </p>
<hr />
<div>{{Infobox Torts}}<br />
<span style="font-size:200%;">{{SUBPAGENAME}}</span> <br />
<br />
The study of tort theory steps back from doctrinal "black letter" law and asks broader questions such as: what is tort law and what is tort law for?<ref>{{Cite web|last=Solum|first=Lawrence|date=22 May 2005|title=Formalism and Instrumentalism|url=https://lsolum.typepad.com/legal_theory_lexicon/2005/05/legal_theory_le_1.html|url-status=live|archive-url=|archive-date=|access-date=|website=Legal Theory Lexicon}}</ref> The search for the essence and purpose of tort law has generated scholarly debates that engage legal philosophy, politics, economics, sociology, ethics, and more. Theories of torts (and private law, and law generally) are manifold. Here, they are grouped into four broad camps understood as ''instrumental'', ''relational'', ''critical'', and ''reflexive'' views of tort law. Some theories overlap in their descriptive or normative interpretation of tort law.<ref>{{Cite journal|last=Gardner|first=John|date=23 May 2016|title=Tort Law and Its Theory|journal=Oxford Legal Studies Research Paper|volume=2}}</ref> However, we can see different principles and arguments reflected in their methodology, scope, and philosophy. Students of the law of torts should critically examine what perspectives have the most explanatory power in the array of contemporary tort law issues. <br />
== Theoretical perspectives on tort law ==<br />
[[File:Ten Tort Theories.jpg|center|thumb|590x590px|[https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#11____Tort_Theory Ten theories of tort law in a nutshell] (from Professor Samuel Beswick's perspective)]]<br />
<br />
=== Instrumental theories ===<br />
[[Documentation:Torts/Instrumental theories|Instrumental or functionalist tort theories]] tend to conceive of tort law as a means of achieving particular ends in society. Tort law is explained and justified as a system for achieving certain social goals, such as the compensation of victims, deterrence of harmful conduct, or the punishment of wrongdoers. Such theories tend to adopt an external (outsiders’) perspective on tort law, by stepping back from the system and assessing and critiquing it in terms of how well tort law achieves its goals.<br />
<br />
=== Relational theories ===<br />
What might be termed interpretive or [[Documentation:Torts/Relational theories|relational theories]] tend to present tort law as "an expression of rights and duties regardless of the instrumental value of those rights and duties".<ref name=":22">{{Cite journal|last=Posner|first=Richard A.|date=Spring 2013|title=Instrumental and Noninstrumental Theories of Tort Law|url=https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=11057&context=ilj|journal=Indiana Law Journal|volume=88|issue=2|pages=469|via=Digital Repository at Maurer Law}}</ref> Theorists in this tradition seek to understand tort law not in terms of what tort law ''does'' but instead what tort law ''is'', on its own terms. These perspectives aim to adopt an internal point of view<ref>{{Cite web|last=Solum|first=Lawrence|date=2004|title=The Internal Point of View|url=https://lsolum.typepad.com/legal_theory_lexicon/2004/05/legal_theory_le.html|url-status=live|website=Legal Theory Lexicon}}</ref>—that is, the view of tort law held by judges and lawyers operating within the legal system. Prominent theories in this tradition contend that tort law is unified by a principle of corrective justice, or of rights vindication, or of civil recourse. <br />
=== Critical theories ===<br />
[[Documentation:Torts/Critical theories|Critical theorists]] aim to present tort law in terms of what is understood to be actually going on in the real world, rather than in terms of what tort law tries to do or purports to be. These theories tend to ground themselves in the systemic realities of the world tort law interacts with. Critical theorists center perspectives of those traditionally marganalized within society and by the legal system society has created and maintained. In particular, the theories illuminate the intersectional perspectives of people of colour, those with low socio-economic status, and women. They critique tort law and the tort system in terms of its impact on disadvantaged groups. <br />
<br />
=== Reflexive theories ===<br />
A [[Documentation:Torts/Reflexive theories|reflexive understanding]] of tort law rejects the idea that there is one grand theory or principle that can represent tort law in its entirety. The common law of tort is a system and practice that has developed over a millennium through adjudication of disputes, the enactment of legislation, and the lawyerly, political and scholarly advocacy of many people. Tort law can be described, theorised and critiqued variously in terms of what its doctrines and practices purport to do, actually do, and fail to achieve. As Peter Cane puts it, the only real unifying feature of tort law is that “tort law is the law of torts”.<ref name=":0">{{Cite book|title=Key Ideas in Tort Law|last=Cane|first=Peter|publisher=Hart Publishing|year=2017|isbn=|location=Oxford|pages=13–20|url=https://doi.org/10.5040/9781509909452.ch-003}}</ref><br />
<br />
== Tort law as a quilt ==<br />
The common law of torts is sometimes analogized to a grand old patchwork quilt.<ref name=":0" /> What does this mean?<br />
[[File:A Dear Jane quilt, inspired by the 1863 Jane Stickle quilt.jpg|alt=An intricate quilt|left|thumb|183x183px]]<br />
* An instrumental perspective might focus on how the quilt can be used to keep people warm or to have a picnic on. <br />
* A relational perspective might focus on what the quilt is made of and how its pieces fit together.<br />
* A critical perspective might focus on who has access to the quilt and who never gets to enjoy it. <br />
* A reflexive perspective might focus less on the quilt as a whole and more on the pieces: what they're made of, who made them, who sewed them together, how well they fit together, and what maintenance and modification might be in store for the quilt in future. <br />
<br />
<br />
[[File:Metropolitan Museum of Art (The Met) - Central Park, NYC.jpg|center|thumb|357x357px|Want to learn about famous cases and apply some tort theories? Check out the [https://www.tortmuseum.org/famous-cases/ American Museum of Tort Law.]]]<br />
<br />
== Quiz ==<br />
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<references /></div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Documentation:Torts&diff=899277Documentation:Torts2026-06-18T20:53:15Z<p>SamuelBeswick: </p>
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<div>__NOTOC__<br />
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<div style="font-size:300%; line-height:100%; border:none; margin:0; padding:0em; color:#FFFFFF; font-weight:bold; line-height:1.3;">CANADIAN TORTS WIKI</div><br />
<div style="padding-left:+0.5em; margin-top:+0.5em; font-size:170%; line-height:100%; border-left:2px solid #FFFFFF; line-height:1.3;"><I>Exploring the common law of torts</i><br />
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{{ Infobox Torts }}<br />
[[Sandbox:Torts/Introduction|Tort law]] is a branch of [https://en.wikipedia.org/wiki/Private_law private law] that recognizes and responds to wrongdoing between people. This wiki commentary explores and explains the nature and relevance of the common law of torts in Canada. We hope you find this free and accessible resource useful for your studies, classroom discussions, and overall understanding of this subject. <br />
<br />
== About ==<br />
The ''Canadian Torts Wiki'' was developed over 2023-25 under the editorial supervision of [https://allard.ubc.ca/about-us/our-people/samuel-beswick Samuel Beswick], Assistant Professor at the University of British Columbia Peter A. Allard School of Law, through a [https://open-2021.sites.olt.ubc.ca/files/2025/03/2025-TLEF-Poster-SamuelBeswick.pdf project] with Allard Law JD students [https://www.linkedin.com/in/gabriella-pasolli/ Gabriella Pasolli], [https://www.linkedin.com/in/cleacatona/ Cléa Catona], [https://www.linkedin.com/in/lilly-callender-4a8805159/ Lillian Callender] and [https://www.linkedin.com/in/alirodameri/ Alirod Ameri] (summer 2023) and [https://www.linkedin.com/in/joeyhe/ Joey He] and [https://www.linkedin.com/in/malik-dhami-736915314/ Malik Dhami] (summer 2024). It was supported by a UBC Teaching and Learning Enhancement Fund (TLEF) Small Innovation Project Grant. The quiz exercises that are integrated throughout were developed with former Allard Law students [https://www.linkedin.com/in/maddisonzapach/ Maddison Zapach] (summer and fall 2021) and Parm Rai (summer 2020). The wiki is a living resource that is updated and improved from time-to-time. <br />
<br />
=== Contribute ===<br />
Law students and scholars who have ideas to contribute to the development of this commentary on the common law of torts are encouraged to [https://allard.ubc.ca/about-us/our-people/samuel-beswick reach out] to Prof. Beswick. Contributions generally should comply with the [[Sandbox:Torts/Content and style guide|wiki content and style guide]]. UBC affiliates can make minor error corrections or updates directly by logging in with their CWL account. Non-UBC affiliates may contact Prof. Beswick attaching suggested content additions or edits. <br />
=== Disclaimer ===<br />
This wiki commentary is not an authoritative source of law or legal principle or legal advice and should not be relied upon as such. If you need legal advice, contact a lawyer or a legal advice program.<ref>{{Cite web|last=|first=|date=|title=Law Students' Legal Advice Program,|url=https://www.lslap.bc.ca/|url-status=live|archive-url=|archive-date=|access-date=|website=}}</ref> As a free collaboratively-made living resource, this wiki can be edited by anyone with [https://it.ubc.ca/services/accounts-passwords/campus-wide-login-cwl UBC CWL] access. Contributors do not guarantee the validity or accuracy of the information provided. We disclaim responsibility for any inaccurate information and exclude all representations, warranties, obligations and liabilities in relation to the wiki content to the maximum extent permitted by law. We incorporate by reference all of the [https://en.wikipedia.org/wiki/Wikipedia:General_disclaimer disclaimers applicable to Wikipedia].<br />
=== License ===<br />
Content created for this wiki commentary is licensed under a [https://creativecommons.org/licenses/by-nc/4.0/ Creative Commons Attribution-NonCommercial 4.0 International License]. Full references and, where available, hyperlinks to external sources are provided throughout. Images are licensed from the Wikimedia Commons or other open repositories, as indicated on each image file page. Hyperlinks to external podcasts, [https://www.youtube.com/t/terms#c3e2907ca8 YouTube] videos, and other media are provided, as well as embedded where permitted by the host site. [[File:2021CanLIIDocs1859-3 Page 001.jpg|alt= Tort Law: Cases and Commentaries, 2021 CanLIIDocs 1859, https://canlii.ca/t/t9st|thumb|[https://canlii.ca/t/t9st 2021 CanLIIDocs 1859]|left|284x284px|border]]<br />
== Case readings ==<br />
The ''Canadian Torts Wiki'' aims to provide a general introduction to the common law of torts, as well as to complement and supplement the case law readings presented in [https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859 ''Tort Law: Cases and Commentaries'' (2021 CanLIIDocs 1859)].<br />
<br />
A case is a judgment of a court that ''both'' resolves a dispute between parties ''and'' operates as an authoritative source of law and legal principle. The judgments collated, organized and republished in the ''Tort Law: Cases and Commentaries'' casebook have been edited down to facilitate clarity and a manageable law school reading load; the full judgment text can be read by following the hyperlinked citations. <br />
<br />
== Themes ==<br />
Each of the judgments that appears in ''Tort Law: Cases and Commentaries'' was selected for inclusion because it illustrates one or more of five themes of the casebook.<br />
<br />
=== Empowering plaintiffs to sue ===<br />
Tort law is a branch of private law – the law that governs the legal relationships between people (as opposed to public law, which governs people's relationships with their government). Tort law empowers victims to pursue legal remedies against those who wrong them, typically without having to seek permission of a court or being beholden to the discretion of a public servant. For example, a person who is intentionally struck in the face by another may sue the wrongdoer for the tort of [[Sandbox:Torts/Trespass to the person#Battery|battery]], but they cannot ordinarily prosecute the wrongdoer for the [http://criminalnotebook.ca/index.php/Common_Assault_(Offence) crime of assault]. The decision to charge and prosecute a suspected criminal lies with the state (through the police and the prosecutor), not with the victim. The decision to sue for civil wrongdoing, on the other hand, lies with the victim (not with the state or anyone else). <br />
<br />
=== Equality of all under ordinary law ===<br />
A distinctive feature of the common law and constitutional law of Canada and other Commonwealth jurisdictions is the idea of legal equality. This idea was famously expounded by Professor [https://en.wikipedia.org/wiki/A._V._Dicey Albert Venn Dicey], who considered that the the [https://en.wikipedia.org/wiki/Rule_of_law rule of law] requires the subjection of public officials to same laws and courts as govern ordinary people.<ref>{{Cite book|url=https://oll.libertyfund.org/title/michener-introduction-to-the-study-of-the-law-of-the-constitution-lf-ed#Dicey_0125_623|title=Introduction to the Study of the Law of the Constitution|last=Dicey|first=Albert Venn|publisher=Liberty Fund|year=1915 (reprint)|isbn=|location=|pages=}}</ref> It is this idea of equality that explains why police officers, cities, and governments can be sued by individuals in tort.<ref>{{Cite journal|last=Beswick|first=Samuel|date=2024|title=Equality Under Ordinary Law|url=https://ssrn.com/abstract=4528664|journal=Supreme Court Law Review (3d)|volume=4|pages=65}}</ref> <br />
<br />
=== Incremental development of the common law ===<br />
While many statutory interventions have been made into the law of torts, the traditional and primary source of tort law is the [https://en.wikipedia.org/wiki/Common_law common law]. The common law in Canada developed originally from English common law.<ref name=":0">{{Cite web|last=McLachlin PC CC|first=Beverly|date=13 June 2016|title=Canada’s Legal System at 150: Democracy and the Judiciary|url=https://www.scc-csc.ca/judges-juges/spe-dis/bm-2016-06-03-eng.aspx|url-status=live|archive-url=|archive-date=|access-date=|website=Supreme Court of Canada}}</ref> The common law is typified by inductive reasoning: discerning the law from "the bottom up" through judges relying upon case [https://en.wikipedia.org/wiki/Precedent precedents] to decide disputes by delivering judgments, which go on to serve as precedents for future judges to rely upon in deciding future disputes. <br />
<br />
=== Community standards and values ===<br />
The disputes that form the substance of a case arise from the community over which the court has jurisdiction. The common law's inductive nature leads to community standards and values informing judicial reasoning and understanding of legal concepts, such as the concept of reasonableness. But which aspects of the community carry weight? When reading through cases, it becomes clear, for example, that the idea of [[Sandbox:Torts/Breach of duty of care|the reasonable person]] is adaptable to different contexts. It is important to be mindful of the time and place of the cases you are reading to properly situate yourself in the perspective of the court and community of the period. If you find yourself disagreeing with a judge's reasoning, ask yourself ''why –'' when and where does your reasoning break away from the court's? <br />
<br />
=== Judicial dialogue over time within and between jurisdictions ===<br />
[[File:Map_of_the_Legal_systems_of_the_world_(en).png|link=|alt=An map of Earth with colour coding indicating the legal systems of the world|thumb|427x427px|[https://upload.wikimedia.org/wikipedia/commons/9/92/Map_of_the_Legal_systems_of_the_world_%28en%29.png Map of the legal systems of the world]|border]]When a dispute arises that presents a court with a novel issue or problem, judges can find it useful to look to other jurisdictions to see how other courts have answered the question. As the common law develops incrementally through reliance on past cases, it is not unusual for judges to engage with foreign judgments and to adopt persuasive judicial reasoning in analogous cases. <br />
== Media ==<br />
The ''Canadian Torts Wiki'' aims to be a springboard into media and other sources to help students appreciate the relevance and context of tort cases and concepts. As you explore the pages you will encounter: <br />
<br />
*'''Quizzes:''' Self-assessment quizzes appear at the bottom of many of the pages. There is also a [https://blogs.ubc.ca/beswick/torts-quizzes/ master page] that collates all of the quizzes in one place. <br />
*'''Videos:''' Informative videos hosted externally on YouTube and elsewhere that are designed to help students wrap their heads around tort concepts.<br />
*'''News''' '''items:''' Sometimes the disputes that are of interest to law teachers and students also attracted public interest at the time and are reported in the news. News reporting often demonstrates the personal context of a legal case and its societal impact. News items appear throughout the wiki in <u>pink</u>-coloured boxes.<br />
*'''Podcasts:''' Whether the mountains of reading you might have for each class overwhelm you, or you need something to listen to during long commutes, podcasts are a great way to learn about the law in a different format than you may be used to.<br />
*'''Blogs:''' Short blog posts can be an excellent way to see how someone else has analyzed a case or the application of a specific tort.<br />
*'''Articles and books:''' Scholarly publications set out sustained explanations and critiques of the law and legal arguments. You will find journal articles and book contributions on tort law cited throughout the wiki. <br />
<br />
|}<br />
{{DISPLAYTITLE:<span style="position: absolute; clip: rect(1px 1px 1px 1px); clip: rect(1px, 1px, 1px, 1px);">{{FULLPAGENAME}}</span>}}</div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Documentation:Torts&diff=899276Documentation:Torts2026-06-18T20:52:53Z<p>SamuelBeswick: </p>
<hr />
<div>__NOTOC__<br />
{| style="width:100%; background#002859; border:0px solid #ccc; position:relative; vertical-align:top;"<br />
| style="color:#000;" |<br />
{| style="width:100%; white-space:nowrap; border:none; background:#18365d"<br />
| style="padding: 0.5em 2em 0.5em 2em; white-space:nowrap; color:#FFFFFF;" |<br />
<div style="font-size:200%; line-height:100%; border:none; margin:0; padding:0em; color:#FFFFFF; font-weight:bold; line-height:1.3;">CANADIAN TORTS WIKI</div><br />
<div style="padding-left:+0.5em; margin-top:+0.5em; font-size:170%; line-height:100%; border-left:2px solid #FFFFFF; line-height:1.3;"><I>Exploring the common law of torts</i><br />
</div><br />
|}<br />
{{ Infobox Torts }}<br />
[[Sandbox:Torts/Introduction|Tort law]] is a branch of [https://en.wikipedia.org/wiki/Private_law private law] that recognizes and responds to wrongdoing between people. This wiki commentary explores and explains the nature and relevance of the common law of torts in Canada. We hope you find this free and accessible resource useful for your studies, classroom discussions, and overall understanding of this subject. <br />
<br />
== About ==<br />
The ''Canadian Torts Wiki'' was developed over 2023-25 under the editorial supervision of [https://allard.ubc.ca/about-us/our-people/samuel-beswick Samuel Beswick], Assistant Professor at the University of British Columbia Peter A. Allard School of Law, through a [https://open-2021.sites.olt.ubc.ca/files/2025/03/2025-TLEF-Poster-SamuelBeswick.pdf project] with Allard Law JD students [https://www.linkedin.com/in/gabriella-pasolli/ Gabriella Pasolli], [https://www.linkedin.com/in/cleacatona/ Cléa Catona], [https://www.linkedin.com/in/lilly-callender-4a8805159/ Lillian Callender] and [https://www.linkedin.com/in/alirodameri/ Alirod Ameri] (summer 2023) and [https://www.linkedin.com/in/joeyhe/ Joey He] and [https://www.linkedin.com/in/malik-dhami-736915314/ Malik Dhami] (summer 2024). It was supported by a UBC Teaching and Learning Enhancement Fund (TLEF) Small Innovation Project Grant. The quiz exercises that are integrated throughout were developed with former Allard Law students [https://www.linkedin.com/in/maddisonzapach/ Maddison Zapach] (summer and fall 2021) and Parm Rai (summer 2020). The wiki is a living resource that is updated and improved from time-to-time. <br />
<br />
=== Contribute ===<br />
Law students and scholars who have ideas to contribute to the development of this commentary on the common law of torts are encouraged to [https://allard.ubc.ca/about-us/our-people/samuel-beswick reach out] to Prof. Beswick. Contributions generally should comply with the [[Sandbox:Torts/Content and style guide|wiki content and style guide]]. UBC affiliates can make minor error corrections or updates directly by logging in with their CWL account. Non-UBC affiliates may contact Prof. Beswick attaching suggested content additions or edits. <br />
=== Disclaimer ===<br />
This wiki commentary is not an authoritative source of law or legal principle or legal advice and should not be relied upon as such. If you need legal advice, contact a lawyer or a legal advice program.<ref>{{Cite web|last=|first=|date=|title=Law Students' Legal Advice Program,|url=https://www.lslap.bc.ca/|url-status=live|archive-url=|archive-date=|access-date=|website=}}</ref> As a free collaboratively-made living resource, this wiki can be edited by anyone with [https://it.ubc.ca/services/accounts-passwords/campus-wide-login-cwl UBC CWL] access. Contributors do not guarantee the validity or accuracy of the information provided. We disclaim responsibility for any inaccurate information and exclude all representations, warranties, obligations and liabilities in relation to the wiki content to the maximum extent permitted by law. We incorporate by reference all of the [https://en.wikipedia.org/wiki/Wikipedia:General_disclaimer disclaimers applicable to Wikipedia].<br />
=== License ===<br />
Content created for this wiki commentary is licensed under a [https://creativecommons.org/licenses/by-nc/4.0/ Creative Commons Attribution-NonCommercial 4.0 International License]. Full references and, where available, hyperlinks to external sources are provided throughout. Images are licensed from the Wikimedia Commons or other open repositories, as indicated on each image file page. Hyperlinks to external podcasts, [https://www.youtube.com/t/terms#c3e2907ca8 YouTube] videos, and other media are provided, as well as embedded where permitted by the host site. [[File:2021CanLIIDocs1859-3 Page 001.jpg|alt= Tort Law: Cases and Commentaries, 2021 CanLIIDocs 1859, https://canlii.ca/t/t9st|thumb|[https://canlii.ca/t/t9st 2021 CanLIIDocs 1859]|left|284x284px|border]]<br />
== Case readings ==<br />
The ''Canadian Torts Wiki'' aims to provide a general introduction to the common law of torts, as well as to complement and supplement the case law readings presented in [https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859 ''Tort Law: Cases and Commentaries'' (2021 CanLIIDocs 1859)].<br />
<br />
A case is a judgment of a court that ''both'' resolves a dispute between parties ''and'' operates as an authoritative source of law and legal principle. The judgments collated, organized and republished in the ''Tort Law: Cases and Commentaries'' casebook have been edited down to facilitate clarity and a manageable law school reading load; the full judgment text can be read by following the hyperlinked citations. <br />
<br />
== Themes ==<br />
Each of the judgments that appears in ''Tort Law: Cases and Commentaries'' was selected for inclusion because it illustrates one or more of five themes of the casebook.<br />
<br />
=== Empowering plaintiffs to sue ===<br />
Tort law is a branch of private law – the law that governs the legal relationships between people (as opposed to public law, which governs people's relationships with their government). Tort law empowers victims to pursue legal remedies against those who wrong them, typically without having to seek permission of a court or being beholden to the discretion of a public servant. For example, a person who is intentionally struck in the face by another may sue the wrongdoer for the tort of [[Sandbox:Torts/Trespass to the person#Battery|battery]], but they cannot ordinarily prosecute the wrongdoer for the [http://criminalnotebook.ca/index.php/Common_Assault_(Offence) crime of assault]. The decision to charge and prosecute a suspected criminal lies with the state (through the police and the prosecutor), not with the victim. The decision to sue for civil wrongdoing, on the other hand, lies with the victim (not with the state or anyone else). <br />
<br />
=== Equality of all under ordinary law ===<br />
A distinctive feature of the common law and constitutional law of Canada and other Commonwealth jurisdictions is the idea of legal equality. This idea was famously expounded by Professor [https://en.wikipedia.org/wiki/A._V._Dicey Albert Venn Dicey], who considered that the the [https://en.wikipedia.org/wiki/Rule_of_law rule of law] requires the subjection of public officials to same laws and courts as govern ordinary people.<ref>{{Cite book|url=https://oll.libertyfund.org/title/michener-introduction-to-the-study-of-the-law-of-the-constitution-lf-ed#Dicey_0125_623|title=Introduction to the Study of the Law of the Constitution|last=Dicey|first=Albert Venn|publisher=Liberty Fund|year=1915 (reprint)|isbn=|location=|pages=}}</ref> It is this idea of equality that explains why police officers, cities, and governments can be sued by individuals in tort.<ref>{{Cite journal|last=Beswick|first=Samuel|date=2024|title=Equality Under Ordinary Law|url=https://ssrn.com/abstract=4528664|journal=Supreme Court Law Review (3d)|volume=4|pages=65}}</ref> <br />
<br />
=== Incremental development of the common law ===<br />
While many statutory interventions have been made into the law of torts, the traditional and primary source of tort law is the [https://en.wikipedia.org/wiki/Common_law common law]. The common law in Canada developed originally from English common law.<ref name=":0">{{Cite web|last=McLachlin PC CC|first=Beverly|date=13 June 2016|title=Canada’s Legal System at 150: Democracy and the Judiciary|url=https://www.scc-csc.ca/judges-juges/spe-dis/bm-2016-06-03-eng.aspx|url-status=live|archive-url=|archive-date=|access-date=|website=Supreme Court of Canada}}</ref> The common law is typified by inductive reasoning: discerning the law from "the bottom up" through judges relying upon case [https://en.wikipedia.org/wiki/Precedent precedents] to decide disputes by delivering judgments, which go on to serve as precedents for future judges to rely upon in deciding future disputes. <br />
<br />
=== Community standards and values ===<br />
The disputes that form the substance of a case arise from the community over which the court has jurisdiction. The common law's inductive nature leads to community standards and values informing judicial reasoning and understanding of legal concepts, such as the concept of reasonableness. But which aspects of the community carry weight? When reading through cases, it becomes clear, for example, that the idea of [[Sandbox:Torts/Breach of duty of care|the reasonable person]] is adaptable to different contexts. It is important to be mindful of the time and place of the cases you are reading to properly situate yourself in the perspective of the court and community of the period. If you find yourself disagreeing with a judge's reasoning, ask yourself ''why –'' when and where does your reasoning break away from the court's? <br />
<br />
=== Judicial dialogue over time within and between jurisdictions ===<br />
[[File:Map_of_the_Legal_systems_of_the_world_(en).png|link=|alt=An map of Earth with colour coding indicating the legal systems of the world|thumb|427x427px|[https://upload.wikimedia.org/wikipedia/commons/9/92/Map_of_the_Legal_systems_of_the_world_%28en%29.png Map of the legal systems of the world]|border]]When a dispute arises that presents a court with a novel issue or problem, judges can find it useful to look to other jurisdictions to see how other courts have answered the question. As the common law develops incrementally through reliance on past cases, it is not unusual for judges to engage with foreign judgments and to adopt persuasive judicial reasoning in analogous cases. <br />
== Media ==<br />
The ''Canadian Torts Wiki'' aims to be a springboard into media and other sources to help students appreciate the relevance and context of tort cases and concepts. As you explore the pages you will encounter: <br />
<br />
*'''Quizzes:''' Self-assessment quizzes appear at the bottom of many of the pages. There is also a [https://blogs.ubc.ca/beswick/torts-quizzes/ master page] that collates all of the quizzes in one place. <br />
*'''Videos:''' Informative videos hosted externally on YouTube and elsewhere that are designed to help students wrap their heads around tort concepts.<br />
*'''News''' '''items:''' Sometimes the disputes that are of interest to law teachers and students also attracted public interest at the time and are reported in the news. News reporting often demonstrates the personal context of a legal case and its societal impact. News items appear throughout the wiki in <u>pink</u>-coloured boxes.<br />
*'''Podcasts:''' Whether the mountains of reading you might have for each class overwhelm you, or you need something to listen to during long commutes, podcasts are a great way to learn about the law in a different format than you may be used to.<br />
*'''Blogs:''' Short blog posts can be an excellent way to see how someone else has analyzed a case or the application of a specific tort.<br />
*'''Articles and books:''' Scholarly publications set out sustained explanations and critiques of the law and legal arguments. You will find journal articles and book contributions on tort law cited throughout the wiki. <br />
<br />
|}<br />
{{DISPLAYTITLE:<span style="position: absolute; clip: rect(1px 1px 1px 1px); clip: rect(1px, 1px, 1px, 1px);">{{FULLPAGENAME}}</span>}}</div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Documentation:Torts&diff=899275Documentation:Torts2026-06-18T20:52:21Z<p>SamuelBeswick: </p>
<hr />
<div>__NOTOC__<br />
{| style="width:100%; background#002859; border:0px solid #ccc; position:relative; vertical-align:top;"<br />
| style="color:#000;" |<br />
{| style="width:100%; white-space:nowrap; border:none; background:#18365d"<br />
| style="padding: 0.5em 2em 0.5em 2em; white-space:nowrap; color:#FFFFFF;" |<br />
<div style="font-size:170%; line-height:100%; border:none; margin:0; padding:0em; color:#FFFFFF; font-weight:bold; line-height:1.3;">CANADIAN TORTS WIKI</div><br />
<div style="padding-left:+0.5em; margin-top:+0.5em; font-size:170%; line-height:100%; border-left:2px solid #FFFFFF; line-height:1.3;"><I>Exploring the common law of torts</i><br />
</div><br />
|}<br />
{{ Infobox Torts }}<br />
[[Sandbox:Torts/Introduction|Tort law]] is a branch of [https://en.wikipedia.org/wiki/Private_law private law] that recognizes and responds to wrongdoing between people. This wiki commentary explores and explains the nature and relevance of the common law of torts in Canada. We hope you find this free and accessible resource useful for your studies, classroom discussions, and overall understanding of this subject. <br />
<br />
== About ==<br />
The ''Canadian Torts Wiki'' was developed over 2023-25 under the editorial supervision of [https://allard.ubc.ca/about-us/our-people/samuel-beswick Samuel Beswick], Assistant Professor at the University of British Columbia Peter A. Allard School of Law, through a [https://open-2021.sites.olt.ubc.ca/files/2025/03/2025-TLEF-Poster-SamuelBeswick.pdf project] with Allard Law JD students [https://www.linkedin.com/in/gabriella-pasolli/ Gabriella Pasolli], [https://www.linkedin.com/in/cleacatona/ Cléa Catona], [https://www.linkedin.com/in/lilly-callender-4a8805159/ Lillian Callender] and [https://www.linkedin.com/in/alirodameri/ Alirod Ameri] (summer 2023) and [https://www.linkedin.com/in/joeyhe/ Joey He] and [https://www.linkedin.com/in/malik-dhami-736915314/ Malik Dhami] (summer 2024). It was supported by a UBC Teaching and Learning Enhancement Fund (TLEF) Small Innovation Project Grant. The quiz exercises that are integrated throughout were developed with former Allard Law students [https://www.linkedin.com/in/maddisonzapach/ Maddison Zapach] (summer and fall 2021) and Parm Rai (summer 2020). The wiki is a living resource that is updated and improved from time-to-time. <br />
<br />
=== Contribute ===<br />
Law students and scholars who have ideas to contribute to the development of this commentary on the common law of torts are encouraged to [https://allard.ubc.ca/about-us/our-people/samuel-beswick reach out] to Prof. Beswick. Contributions generally should comply with the [[Sandbox:Torts/Content and style guide|wiki content and style guide]]. UBC affiliates can make minor error corrections or updates directly by logging in with their CWL account. Non-UBC affiliates may contact Prof. Beswick attaching suggested content additions or edits. <br />
=== Disclaimer ===<br />
This wiki commentary is not an authoritative source of law or legal principle or legal advice and should not be relied upon as such. If you need legal advice, contact a lawyer or a legal advice program.<ref>{{Cite web|last=|first=|date=|title=Law Students' Legal Advice Program,|url=https://www.lslap.bc.ca/|url-status=live|archive-url=|archive-date=|access-date=|website=}}</ref> As a free collaboratively-made living resource, this wiki can be edited by anyone with [https://it.ubc.ca/services/accounts-passwords/campus-wide-login-cwl UBC CWL] access. Contributors do not guarantee the validity or accuracy of the information provided. We disclaim responsibility for any inaccurate information and exclude all representations, warranties, obligations and liabilities in relation to the wiki content to the maximum extent permitted by law. We incorporate by reference all of the [https://en.wikipedia.org/wiki/Wikipedia:General_disclaimer disclaimers applicable to Wikipedia].<br />
=== License ===<br />
Content created for this wiki commentary is licensed under a [https://creativecommons.org/licenses/by-nc/4.0/ Creative Commons Attribution-NonCommercial 4.0 International License]. Full references and, where available, hyperlinks to external sources are provided throughout. Images are licensed from the Wikimedia Commons or other open repositories, as indicated on each image file page. Hyperlinks to external podcasts, [https://www.youtube.com/t/terms#c3e2907ca8 YouTube] videos, and other media are provided, as well as embedded where permitted by the host site. [[File:2021CanLIIDocs1859-3 Page 001.jpg|alt= Tort Law: Cases and Commentaries, 2021 CanLIIDocs 1859, https://canlii.ca/t/t9st|thumb|[https://canlii.ca/t/t9st 2021 CanLIIDocs 1859]|left|284x284px|border]]<br />
== Case readings ==<br />
The ''Canadian Torts Wiki'' aims to provide a general introduction to the common law of torts, as well as to complement and supplement the case law readings presented in [https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859 ''Tort Law: Cases and Commentaries'' (2021 CanLIIDocs 1859)].<br />
<br />
A case is a judgment of a court that ''both'' resolves a dispute between parties ''and'' operates as an authoritative source of law and legal principle. The judgments collated, organized and republished in the ''Tort Law: Cases and Commentaries'' casebook have been edited down to facilitate clarity and a manageable law school reading load; the full judgment text can be read by following the hyperlinked citations. <br />
<br />
== Themes ==<br />
Each of the judgments that appears in ''Tort Law: Cases and Commentaries'' was selected for inclusion because it illustrates one or more of five themes of the casebook.<br />
<br />
=== Empowering plaintiffs to sue ===<br />
Tort law is a branch of private law – the law that governs the legal relationships between people (as opposed to public law, which governs people's relationships with their government). Tort law empowers victims to pursue legal remedies against those who wrong them, typically without having to seek permission of a court or being beholden to the discretion of a public servant. For example, a person who is intentionally struck in the face by another may sue the wrongdoer for the tort of [[Sandbox:Torts/Trespass to the person#Battery|battery]], but they cannot ordinarily prosecute the wrongdoer for the [http://criminalnotebook.ca/index.php/Common_Assault_(Offence) crime of assault]. The decision to charge and prosecute a suspected criminal lies with the state (through the police and the prosecutor), not with the victim. The decision to sue for civil wrongdoing, on the other hand, lies with the victim (not with the state or anyone else). <br />
<br />
=== Equality of all under ordinary law ===<br />
A distinctive feature of the common law and constitutional law of Canada and other Commonwealth jurisdictions is the idea of legal equality. This idea was famously expounded by Professor [https://en.wikipedia.org/wiki/A._V._Dicey Albert Venn Dicey], who considered that the the [https://en.wikipedia.org/wiki/Rule_of_law rule of law] requires the subjection of public officials to same laws and courts as govern ordinary people.<ref>{{Cite book|url=https://oll.libertyfund.org/title/michener-introduction-to-the-study-of-the-law-of-the-constitution-lf-ed#Dicey_0125_623|title=Introduction to the Study of the Law of the Constitution|last=Dicey|first=Albert Venn|publisher=Liberty Fund|year=1915 (reprint)|isbn=|location=|pages=}}</ref> It is this idea of equality that explains why police officers, cities, and governments can be sued by individuals in tort.<ref>{{Cite journal|last=Beswick|first=Samuel|date=2024|title=Equality Under Ordinary Law|url=https://ssrn.com/abstract=4528664|journal=Supreme Court Law Review (3d)|volume=4|pages=65}}</ref> <br />
<br />
=== Incremental development of the common law ===<br />
While many statutory interventions have been made into the law of torts, the traditional and primary source of tort law is the [https://en.wikipedia.org/wiki/Common_law common law]. The common law in Canada developed originally from English common law.<ref name=":0">{{Cite web|last=McLachlin PC CC|first=Beverly|date=13 June 2016|title=Canada’s Legal System at 150: Democracy and the Judiciary|url=https://www.scc-csc.ca/judges-juges/spe-dis/bm-2016-06-03-eng.aspx|url-status=live|archive-url=|archive-date=|access-date=|website=Supreme Court of Canada}}</ref> The common law is typified by inductive reasoning: discerning the law from "the bottom up" through judges relying upon case [https://en.wikipedia.org/wiki/Precedent precedents] to decide disputes by delivering judgments, which go on to serve as precedents for future judges to rely upon in deciding future disputes. <br />
<br />
=== Community standards and values ===<br />
The disputes that form the substance of a case arise from the community over which the court has jurisdiction. The common law's inductive nature leads to community standards and values informing judicial reasoning and understanding of legal concepts, such as the concept of reasonableness. But which aspects of the community carry weight? When reading through cases, it becomes clear, for example, that the idea of [[Sandbox:Torts/Breach of duty of care|the reasonable person]] is adaptable to different contexts. It is important to be mindful of the time and place of the cases you are reading to properly situate yourself in the perspective of the court and community of the period. If you find yourself disagreeing with a judge's reasoning, ask yourself ''why –'' when and where does your reasoning break away from the court's? <br />
<br />
=== Judicial dialogue over time within and between jurisdictions ===<br />
[[File:Map_of_the_Legal_systems_of_the_world_(en).png|link=|alt=An map of Earth with colour coding indicating the legal systems of the world|thumb|427x427px|[https://upload.wikimedia.org/wikipedia/commons/9/92/Map_of_the_Legal_systems_of_the_world_%28en%29.png Map of the legal systems of the world]|border]]When a dispute arises that presents a court with a novel issue or problem, judges can find it useful to look to other jurisdictions to see how other courts have answered the question. As the common law develops incrementally through reliance on past cases, it is not unusual for judges to engage with foreign judgments and to adopt persuasive judicial reasoning in analogous cases. <br />
== Media ==<br />
The ''Canadian Torts Wiki'' aims to be a springboard into media and other sources to help students appreciate the relevance and context of tort cases and concepts. As you explore the pages you will encounter: <br />
<br />
*'''Quizzes:''' Self-assessment quizzes appear at the bottom of many of the pages. There is also a [https://blogs.ubc.ca/beswick/torts-quizzes/ master page] that collates all of the quizzes in one place. <br />
*'''Videos:''' Informative videos hosted externally on YouTube and elsewhere that are designed to help students wrap their heads around tort concepts.<br />
*'''News''' '''items:''' Sometimes the disputes that are of interest to law teachers and students also attracted public interest at the time and are reported in the news. News reporting often demonstrates the personal context of a legal case and its societal impact. News items appear throughout the wiki in <u>pink</u>-coloured boxes.<br />
*'''Podcasts:''' Whether the mountains of reading you might have for each class overwhelm you, or you need something to listen to during long commutes, podcasts are a great way to learn about the law in a different format than you may be used to.<br />
*'''Blogs:''' Short blog posts can be an excellent way to see how someone else has analyzed a case or the application of a specific tort.<br />
*'''Articles and books:''' Scholarly publications set out sustained explanations and critiques of the law and legal arguments. You will find journal articles and book contributions on tort law cited throughout the wiki. <br />
<br />
|}<br />
{{DISPLAYTITLE:<span style="position: absolute; clip: rect(1px 1px 1px 1px); clip: rect(1px, 1px, 1px, 1px);">{{FULLPAGENAME}}</span>}}</div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Documentation:Torts&diff=899274Documentation:Torts2026-06-18T20:50:41Z<p>SamuelBeswick: </p>
<hr />
<div>__NOTOC__<br />
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<div style="font-size:170%; line-height:100%; border:none; margin:0; padding:0em; color:#FFFFFF; font-weight:bold; line-height:1.3;">CANADIAN TORTS WIKI</div><br />
<div style="padding-left:+0.5em; margin-top:+0.5em; font-size:170%; line-height:100%; border-left:2px solid #FFFFFF; line-height:1.3;"><I>Exploring the common law of torts</i><br />
</div><br />
|}<br />
{{ Infobox Torts }}<br />
[[Sandbox:Torts/Introduction|Tort law]] is a branch of [https://en.wikipedia.org/wiki/Private_law private law] that recognizes and responds to wrongdoing between people. This wiki commentary explores and explains the nature and relevance of the common law of torts in Canada. We hope you find this free and accessible resource useful for your studies, classroom discussions, and overall understanding of this subject. <br />
<br />
== About ==<br />
The ''Common Law Torts Wiki'' was developed over 2023-25 under the editorial supervision of [https://allard.ubc.ca/about-us/our-people/samuel-beswick Samuel Beswick], Assistant Professor at the University of British Columbia Peter A. Allard School of Law, through a [https://open-2021.sites.olt.ubc.ca/files/2025/03/2025-TLEF-Poster-SamuelBeswick.pdf project] with Allard Law JD students [https://www.linkedin.com/in/gabriella-pasolli/ Gabriella Pasolli], [https://www.linkedin.com/in/cleacatona/ Cléa Catona], [https://www.linkedin.com/in/lilly-callender-4a8805159/ Lillian Callender] and [https://www.linkedin.com/in/alirodameri/ Alirod Ameri] (summer 2023) and [https://www.linkedin.com/in/joeyhe/ Joey He] and [https://www.linkedin.com/in/malik-dhami-736915314/ Malik Dhami] (summer 2024). It was supported by a UBC Teaching and Learning Enhancement Fund (TLEF) Small Innovation Project Grant. The quiz exercises that are integrated throughout were developed with former Allard Law students [https://www.linkedin.com/in/maddisonzapach/ Maddison Zapach] (summer and fall 2021) and Parm Rai (summer 2020). The wiki is a living resource that is updated and improved from time-to-time. <br />
<br />
=== Contribute ===<br />
Law students and scholars who have ideas to contribute to the development of this commentary on the common law of torts are encouraged to [https://allard.ubc.ca/about-us/our-people/samuel-beswick reach out] to Prof. Beswick. Contributions generally should comply with the [[Sandbox:Torts/Content and style guide|wiki content and style guide]]. UBC affiliates can make minor error corrections or updates directly by logging in with their CWL account. Non-UBC affiliates may contact Prof. Beswick attaching suggested content additions or edits. <br />
=== Disclaimer ===<br />
This wiki commentary is a pedagogical resource only and was created to support student learning. It is not an authoritative source of law or legal principle or legal advice and should not be relied upon or cited as such. If you need legal advice, contact a lawyer or a legal advice program.<ref>{{Cite web|last=|first=|date=|title=Law Students' Legal Advice Program,|url=https://www.lslap.bc.ca/|url-status=live|archive-url=|archive-date=|access-date=|website=}}</ref> As a free collaboratively-made living resource, this wiki can be edited by anyone with [https://it.ubc.ca/services/accounts-passwords/campus-wide-login-cwl UBC CWL] access. Contributors do not guarantee the validity or accuracy of the information provided. We disclaim responsibility for any inaccurate information and exclude all representations, warranties, obligations and liabilities in relation to the wiki content to the maximum extent permitted by law. We incorporate by reference all of the [https://en.wikipedia.org/wiki/Wikipedia:General_disclaimer disclaimers applicable to Wikipedia].<br />
=== License ===<br />
Content created for this wiki commentary is licensed under a [https://creativecommons.org/licenses/by-nc/4.0/ Creative Commons Attribution-NonCommercial 4.0 International License]. Full references and, where available, hyperlinks to external sources are provided throughout. Images are licensed from the Wikimedia Commons or other open repositories, as indicated on each image file page. Hyperlinks to external podcasts, [https://www.youtube.com/t/terms#c3e2907ca8 YouTube] videos, and other media are provided, as well as embedded where permitted by the host site. [[File:2021CanLIIDocs1859-3 Page 001.jpg|alt= Tort Law: Cases and Commentaries, 2021 CanLIIDocs 1859, https://canlii.ca/t/t9st|thumb|[https://canlii.ca/t/t9st 2021 CanLIIDocs 1859]|left|284x284px|border]]<br />
== Case readings ==<br />
The ''Common Law Torts Wiki'' aims to provide a general introduction to the common law of torts, as well as to complement and supplement the case law readings presented in [https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859 ''Tort Law: Cases and Commentaries'' (2021 CanLIIDocs 1859)].<br />
<br />
A case is a judgment of a court that ''both'' resolves a dispute between parties ''and'' operates as an authoritative source of law and legal principle. The judgments collated, organized and republished in the ''Tort Law: Cases and Commentaries'' casebook have been edited down to facilitate clarity and a manageable law school reading load; the full judgment text can be read by following the hyperlinked citations. <br />
<br />
== Themes ==<br />
Each of the judgments that appears in ''Tort Law: Cases and Commentaries'' was selected for inclusion because it illustrates one or more of five themes of the casebook.<br />
<br />
=== Empowering plaintiffs to sue ===<br />
Tort law is a branch of private law – the law that governs the legal relationships between people (as opposed to public law, which governs people's relationships with their government). Tort law empowers victims to pursue legal remedies against those who wrong them, typically without having to seek permission of a court or being beholden to the discretion of a public servant. For example, a person who is intentionally struck in the face by another may sue the wrongdoer for the tort of [[Sandbox:Torts/Trespass to the person#Battery|battery]], but they cannot ordinarily prosecute the wrongdoer for the [http://criminalnotebook.ca/index.php/Common_Assault_(Offence) crime of assault]. The decision to charge and prosecute a suspected criminal lies with the state (through the police and the prosecutor), not with the victim. The decision to sue for civil wrongdoing, on the other hand, lies with the victim (not with the state or anyone else). <br />
<br />
=== Equality of all under ordinary law ===<br />
A distinctive feature of the common law and constitutional law of Canada and other Commonwealth jurisdictions is the idea of legal equality. This idea was famously expounded by Professor [https://en.wikipedia.org/wiki/A._V._Dicey Albert Venn Dicey], who considered that the the [https://en.wikipedia.org/wiki/Rule_of_law rule of law] requires the subjection of public officials to same laws and courts as govern ordinary people.<ref>{{Cite book|url=https://oll.libertyfund.org/title/michener-introduction-to-the-study-of-the-law-of-the-constitution-lf-ed#Dicey_0125_623|title=Introduction to the Study of the Law of the Constitution|last=Dicey|first=Albert Venn|publisher=Liberty Fund|year=1915 (reprint)|isbn=|location=|pages=}}</ref> It is this idea of equality that explains why police officers, cities, and governments can be sued by individuals in tort.<ref>{{Cite journal|last=Beswick|first=Samuel|date=2024|title=Equality Under Ordinary Law|url=https://ssrn.com/abstract=4528664|journal=Supreme Court Law Review (3d)|volume=4|pages=65}}</ref> <br />
<br />
=== Incremental development of the common law ===<br />
While many statutory interventions have been made into the law of torts, the traditional and primary source of tort law is the [https://en.wikipedia.org/wiki/Common_law common law]. The common law in Canada developed originally from English common law.<ref name=":0">{{Cite web|last=McLachlin PC CC|first=Beverly|date=13 June 2016|title=Canada’s Legal System at 150: Democracy and the Judiciary|url=https://www.scc-csc.ca/judges-juges/spe-dis/bm-2016-06-03-eng.aspx|url-status=live|archive-url=|archive-date=|access-date=|website=Supreme Court of Canada}}</ref> The common law is typified by inductive reasoning: discerning the law from "the bottom up" through judges relying upon case [https://en.wikipedia.org/wiki/Precedent precedents] to decide disputes by delivering judgments, which go on to serve as precedents for future judges to rely upon in deciding future disputes. <br />
<br />
=== Community standards and values ===<br />
The disputes that form the substance of a case arise from the community over which the court has jurisdiction. The common law's inductive nature leads to community standards and values informing judicial reasoning and understanding of legal concepts, such as the concept of reasonableness. But which aspects of the community carry weight? When reading through cases, it becomes clear, for example, that the idea of [[Sandbox:Torts/Breach of duty of care|the reasonable person]] is adaptable to different contexts. It is important to be mindful of the time and place of the cases you are reading to properly situate yourself in the perspective of the court and community of the period. If you find yourself disagreeing with a judge's reasoning, ask yourself ''why –'' when and where does your reasoning break away from the court's? <br />
<br />
=== Judicial dialogue over time within and between jurisdictions ===<br />
[[File:Map_of_the_Legal_systems_of_the_world_(en).png|link=|alt=An map of Earth with colour coding indicating the legal systems of the world|thumb|427x427px|[https://upload.wikimedia.org/wikipedia/commons/9/92/Map_of_the_Legal_systems_of_the_world_%28en%29.png Map of the legal systems of the world]|border]]When a dispute arises that presents a court with a novel issue or problem, judges can find it useful to look to other jurisdictions to see how other courts have answered the question. As the common law develops incrementally through reliance on past cases, it is not unusual for judges to engage with foreign judgments and to adopt persuasive judicial reasoning in analogous cases. <br />
== Media ==<br />
The ''Common Law Torts Wiki'' aims to be a springboard into media and other sources to help students appreciate the relevance and context of tort cases and concepts. As you explore the pages you will encounter: <br />
<br />
*'''Quizzes:''' Self-assessment quizzes appear at the bottom of many of the pages. There is also a [https://blogs.ubc.ca/beswick/torts-quizzes/ master page] that collates all of the quizzes in one place. <br />
*'''Videos:''' Informative videos hosted externally on YouTube and elsewhere that are designed to help students wrap their heads around tort concepts.<br />
*'''News''' '''items:''' Sometimes the disputes that are of interest to law teachers and students also attracted public interest at the time and are reported in the news. News reporting often demonstrates the personal context of a legal case and its societal impact. News items appear throughout the wiki in <u>pink</u>-coloured boxes.<br />
*'''Podcasts:''' Whether the mountains of reading you might have for each class overwhelm you, or you need something to listen to during long commutes, podcasts are a great way to learn about the law in a different format than you may be used to.<br />
*'''Blogs:''' Short blog posts can be an excellent way to see how someone else has analyzed a case or the application of a specific tort.<br />
*'''Articles and books:''' Scholarly publications set out sustained explanations and critiques of the law and legal arguments. You will find journal articles and book contributions on tort law cited throughout the wiki. <br />
<br />
|}<br />
{{DISPLAYTITLE:<span style="position: absolute; clip: rect(1px 1px 1px 1px); clip: rect(1px, 1px, 1px, 1px);">{{FULLPAGENAME}}</span>}}</div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Documentation:Torts/Intimate_partner_violence&diff=899273Documentation:Torts/Intimate partner violence2026-06-18T20:49:49Z<p>SamuelBeswick: </p>
<hr />
<div>{{Infobox Torts }}<br />
<span style="font-size:200%;">{{SUBPAGENAME}}</span><br />
In ''Ahluwalia v. Ahluwalia'',<ref>Ahluwalia v. Ahluwalia, [https://canlii.ca/t/kkzk1 2026 SCC 16].</ref> a majority of the Supreme Court of Canada recognised a new tort of coercive control by an intimate partner. The Court provided the following summary of the elements of this tort: <blockquote>205. To summarize, in making a finding of liability under the tort of intimate partner violence, a trial judge must assess whether the evidence establishes all three elements and evaluate the quantum of damages required to remedy the resulting harm. The burden of proof rests with the plaintiff on the civil standard of balance of probabilities. <br />
<br />
206. First, the defendant’s wrongful conduct must have occurred during the course of an intimate partnership or in its aftermath.<br />
<br />
207. Second, the defendant must have intentionally engaged in the abusive conduct. The plaintiff need only show that the defendant intended to engage in the impugned conduct, not that they subjectively intended to control their intimate partner. With respect to the abusive conduct itself, the plaintiff must adduce specific evidence to make out the tort claim. However, evidence may show a range of abusive conduct that appears less harmful in isolation but which may, considered cumulatively, form a pattern of coercive control. For guidance, the following are some types of conduct that are capable of constituting coercive control: physical and sexual violence; emotional and psychological abuse, including verbal abuse; harassment, humiliation, and denigration; financial control, stalking, and surveillance; behaviour that isolates a partner from others, or that denies a partner access to educational, employment, and recreational opportunities; litigation abuse; and threatening conduct, including threatening to harm the children or take them away, and threatening to commit suicide (see United Kingdom, Home Office, ''Controlling or Coercive Behaviour: Statutory Guidance Framework'', April 5, 2023 (online), at pp. 15-16; Canadian Association of Chiefs of Police, ''National Framework for Police Intervention in Intimate Partner Coercive Control'', July 2025 (online), at pp. 5-7). The foregoing list is merely illustrative and should not be treated as exhaustive.<br />
<br />
208. Third, the plaintiff must show the conduct to be, on an objective measure, coercive control. The trial judge must determine whether a reasonable person, fully apprised of the relevant context of the relationship, would have perceived the defendant’s acts, considered cumulatively, as amounting to an assertion of control over the plaintiff that has the effect of depriving them of their dignity, autonomy, and equality in the relationship. The key feature of coercive control is, on an objective measure, the breakdown of the plaintiff’s will, manifested through a diminished power to decide important matters in their own life or to meaningfully take part in decisions that affect the intimate partnership. Neither the timing of the commencement of the claim nor when the plaintiff left the relationship has any necessary bearing on whether the plaintiff can successfully establish this element. The threshold serves an essential limiting function by anchoring the tort in the deprivation of autonomy, but where circumstances show that the reasonable person would conclude that the abusive conduct is incompatible with the intimate partnership, the burden will be readily met. In particular, courts must of course take care not to mischaracterize a victim’s resistance to a partner’s attempt at domination, or all misconduct in a high conflict breakdown, as coercive control under the new tort. Mere dysfunction of an intimate partnership, or a relationship marked by an imbalance between the parties in the absence of coercive control, is not intimate partner violence in this sense. But at the same time, trial judges must be cautious not to “subject evidence of non-physical [intimate partner violence] to heightened suspicion or skepticism, minimize it, or misattribute its harms to a high conflict relationship or post-separation emotionality” ….<br />
<br />
209. Proof by the plaintiff of these three elements establishes liability under the tort of intimate partner violence. The plaintiff’s dignitary harm flows from proof of the intentional wrong and does not require proof of other consequential harms. On this basis, the trial judge may then award general compensatory damages to provide redress for the harm to dignity, autonomy, and equality suffered through coercive control, as well as any other harm that flows therefrom.</blockquote> <br />
<br />
{{DISPLAYTITLE:<span style="position: absolute; clip: rect(1px 1px 1px 1px); clip: rect(1px, 1px, 1px, 1px);">{{FULLPAGENAME}}</span>}}<br />
<references /></div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Documentation:Torts/Intimate_partner_violence&diff=899272Documentation:Torts/Intimate partner violence2026-06-18T20:48:53Z<p>SamuelBeswick: </p>
<hr />
<div>{{Infobox Torts }}<br />
<span style="font-size:200%;">{{SUBPAGENAME}}</span><br />
<br />
<br />
<br />
In ''Ahluwalia v. Ahluwalia'',<ref>Ahluwalia v. Ahluwalia, [https://canlii.ca/t/kkzk1 2026 SCC 16].</ref> a majority of the Supreme Court of Canada recognised a new tort of coercive control by an intimate partner. The Court provided the following summary of the elements of this tort: <blockquote>205. To summarize, in making a finding of liability under the tort of intimate partner violence, a trial judge must assess whether the evidence establishes all three elements and evaluate the quantum of damages required to remedy the resulting harm. The burden of proof rests with the plaintiff on the civil standard of balance of probabilities. <br />
<br />
206. First, the defendant’s wrongful conduct must have occurred during the course of an intimate partnership or in its aftermath.<br />
<br />
207. Second, the defendant must have intentionally engaged in the abusive conduct. The plaintiff need only show that the defendant intended to engage in the impugned conduct, not that they subjectively intended to control their intimate partner. With respect to the abusive conduct itself, the plaintiff must adduce specific evidence to make out the tort claim. However, evidence may show a range of abusive conduct that appears less harmful in isolation but which may, considered cumulatively, form a pattern of coercive control. For guidance, the following are some types of conduct that are capable of constituting coercive control: physical and sexual violence; emotional and psychological abuse, including verbal abuse; harassment, humiliation, and denigration; financial control, stalking, and surveillance; behaviour that isolates a partner from others, or that denies a partner access to educational, employment, and recreational opportunities; litigation abuse; and threatening conduct, including threatening to harm the children or take them away, and threatening to commit suicide (see United Kingdom, Home Office, ''Controlling or Coercive Behaviour: Statutory Guidance Framework'', April 5, 2023 (online), at pp. 15-16; Canadian Association of Chiefs of Police, ''National Framework for Police Intervention in Intimate Partner Coercive Control'', July 2025 (online), at pp. 5-7). The foregoing list is merely illustrative and should not be treated as exhaustive.<br />
<br />
208. Third, the plaintiff must show the conduct to be, on an objective measure, coercive control. The trial judge must determine whether a reasonable person, fully apprised of the relevant context of the relationship, would have perceived the defendant’s acts, considered cumulatively, as amounting to an assertion of control over the plaintiff that has the effect of depriving them of their dignity, autonomy, and equality in the relationship. The key feature of coercive control is, on an objective measure, the breakdown of the plaintiff’s will, manifested through a diminished power to decide important matters in their own life or to meaningfully take part in decisions that affect the intimate partnership. Neither the timing of the commencement of the claim nor when the plaintiff left the relationship has any necessary bearing on whether the plaintiff can successfully establish this element. The threshold serves an essential limiting function by anchoring the tort in the deprivation of autonomy, but where circumstances show that the reasonable person would conclude that the abusive conduct is incompatible with the intimate partnership, the burden will be readily met. In particular, courts must of course take care not to mischaracterize a victim’s resistance to a partner’s attempt at domination, or all misconduct in a high conflict breakdown, as coercive control under the new tort. Mere dysfunction of an intimate partnership, or a relationship marked by an imbalance between the parties in the absence of coercive control, is not intimate partner violence in this sense. But at the same time, trial judges must be cautious not to “subject evidence of non-physical [intimate partner violence] to heightened suspicion or skepticism, minimize it, or misattribute its harms to a high conflict relationship or post-separation emotionality” ….<br />
<br />
209. Proof by the plaintiff of these three elements establishes liability under the tort of intimate partner violence. The plaintiff’s dignitary harm flows from proof of the intentional wrong and does not require proof of other consequential harms. On this basis, the trial judge may then award general compensatory damages to provide redress for the harm to dignity, autonomy, and equality suffered through coercive control, as well as any other harm that flows therefrom.</blockquote> <br />
<br />
{{DISPLAYTITLE:<span style="position: absolute; clip: rect(1px 1px 1px 1px); clip: rect(1px, 1px, 1px, 1px);">{{FULLPAGENAME}}</span>}}<br />
<references /></div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Documentation:Torts/Intimate_partner_violence&diff=899271Documentation:Torts/Intimate partner violence2026-06-18T20:48:25Z<p>SamuelBeswick: </p>
<hr />
<div>{{Infobox Torts }}<br />
<span style="font-size:200%;">{{SUBPAGENAME}}</span><br> <br />
<br />
In ''Ahluwalia v. Ahluwalia'',<ref>Ahluwalia v. Ahluwalia, [https://canlii.ca/t/kkzk1 2026 SCC 16].</ref> a majority of the Supreme Court of Canada recognised a new tort of coercive control by an intimate partner. The Court provided the following summary of the elements of this tort: <blockquote>205. To summarize, in making a finding of liability under the tort of intimate partner violence, a trial judge must assess whether the evidence establishes all three elements and evaluate the quantum of damages required to remedy the resulting harm. The burden of proof rests with the plaintiff on the civil standard of balance of probabilities. <br />
<br />
206. First, the defendant’s wrongful conduct must have occurred during the course of an intimate partnership or in its aftermath.<br />
<br />
207. Second, the defendant must have intentionally engaged in the abusive conduct. The plaintiff need only show that the defendant intended to engage in the impugned conduct, not that they subjectively intended to control their intimate partner. With respect to the abusive conduct itself, the plaintiff must adduce specific evidence to make out the tort claim. However, evidence may show a range of abusive conduct that appears less harmful in isolation but which may, considered cumulatively, form a pattern of coercive control. For guidance, the following are some types of conduct that are capable of constituting coercive control: physical and sexual violence; emotional and psychological abuse, including verbal abuse; harassment, humiliation, and denigration; financial control, stalking, and surveillance; behaviour that isolates a partner from others, or that denies a partner access to educational, employment, and recreational opportunities; litigation abuse; and threatening conduct, including threatening to harm the children or take them away, and threatening to commit suicide (see United Kingdom, Home Office, ''Controlling or Coercive Behaviour: Statutory Guidance Framework'', April 5, 2023 (online), at pp. 15-16; Canadian Association of Chiefs of Police, ''National Framework for Police Intervention in Intimate Partner Coercive Control'', July 2025 (online), at pp. 5-7). The foregoing list is merely illustrative and should not be treated as exhaustive.<br />
<br />
208. Third, the plaintiff must show the conduct to be, on an objective measure, coercive control. The trial judge must determine whether a reasonable person, fully apprised of the relevant context of the relationship, would have perceived the defendant’s acts, considered cumulatively, as amounting to an assertion of control over the plaintiff that has the effect of depriving them of their dignity, autonomy, and equality in the relationship. The key feature of coercive control is, on an objective measure, the breakdown of the plaintiff’s will, manifested through a diminished power to decide important matters in their own life or to meaningfully take part in decisions that affect the intimate partnership. Neither the timing of the commencement of the claim nor when the plaintiff left the relationship has any necessary bearing on whether the plaintiff can successfully establish this element. The threshold serves an essential limiting function by anchoring the tort in the deprivation of autonomy, but where circumstances show that the reasonable person would conclude that the abusive conduct is incompatible with the intimate partnership, the burden will be readily met. In particular, courts must of course take care not to mischaracterize a victim’s resistance to a partner’s attempt at domination, or all misconduct in a high conflict breakdown, as coercive control under the new tort. Mere dysfunction of an intimate partnership, or a relationship marked by an imbalance between the parties in the absence of coercive control, is not intimate partner violence in this sense. But at the same time, trial judges must be cautious not to “subject evidence of non-physical [intimate partner violence] to heightened suspicion or skepticism, minimize it, or misattribute its harms to a high conflict relationship or post-separation emotionality” ….<br />
<br />
209. Proof by the plaintiff of these three elements establishes liability under the tort of intimate partner violence. The plaintiff’s dignitary harm flows from proof of the intentional wrong and does not require proof of other consequential harms. On this basis, the trial judge may then award general compensatory damages to provide redress for the harm to dignity, autonomy, and equality suffered through coercive control, as well as any other harm that flows therefrom.</blockquote> <br />
<br />
{{DISPLAYTITLE:<span style="position: absolute; clip: rect(1px 1px 1px 1px); clip: rect(1px, 1px, 1px, 1px);">{{FULLPAGENAME}}</span>}}<br />
<references /></div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Template:Infobox_Torts&diff=899270Template:Infobox Torts2026-06-18T20:46:57Z<p>SamuelBeswick: </p>
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<div>{| class="infobox" width="250px"<br />
! colspan="2" style="background:#6fa8dc; width:200px; color: white; font-weight:normal; font-size:11pt; padding-top: 0.5em; padding-bottom: 0.5em;" | [[Documentation:Torts|'''TORT LAW''']]<br />
|-<br />
! colspan="2" style="background:#cfe2f3; font-weight:normal; width:200px; color: black; font-size:10pt;" | [https://canlii.ca/t/t9st '''CASEBOOK''']<br />
|-<br />
! colspan="2" style="background:#ffe599; font-weight:normal; width:200px; color: black; font-size:10pt;" | [[Documentation:Torts/Introduction|Introduction]]<br />
|-<br />
! colspan="2" style="background:#ffe599; font-weight:normal; width:200px; color: black; font-size:10pt;" | Dignitary Torts<br />
|-<br />
! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Documentation:Torts/Defamation|Defamation]] • [[Documentation:Torts/Discrimination|Discrimination]] • [[Documentation:Torts/Harassment|Harassment]] • [[Documentation:Torts/Intentional infliction of mental suffering|Intentional infliction of mental suffering]] • [[Documentation:Torts/Intimate partner violence|Intimate partner violence]] • [[Documentation:Torts/Invasion of privacy|Invasion of privacy]] • [[Documentation:Torts/Trespass to the person|Trespass to the person]] <br />
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! colspan="2" style="background:#ffe599; font-weight:normal; width:200px; color: black; font-size:10pt;" | Property Torts<br />
|-<br />
! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Documentation:Torts/Intentional interference with goods|Interference with goods]] • [[Documentation:Torts/Intentional interference with land|Interference with land]] • [[Documentation:Torts/Non-natural_use_of_land|Non-natural use of land]] • [[Documentation:Torts/Private nuisance|Private nuisance]] • [[Documentation:Torts/Public nuisance|Public nuisance]]<br />
|-<br />
! colspan="2" style="background:#ffe599; width:200px; font-weight:normal; font-size:10pt; color: black;" | [[Documentation:Torts/Negligence|Negligence Tort]]<br />
|-<br />
! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Documentation:Torts/Duty of care|Duty of care]] • [[Documentation:Torts/Breach of duty of care|Breach of duty]] • [[Documentation:Torts/Damage|Damage]] • [[Documentation:Torts/Causation_in_fact|Causation]] • [[Documentation:Torts/Remoteness_in_law|Remoteness]]<br />
| style="font-size:9pt;" |<br />
|-<br />
! colspan="2" style="background:#ffe599; width:200px; font-weight:normal; font-size:10pt; color: black;" | [[Documentation:Torts/Categories of Negligence|Negligence Categories]]<br />
|-<br />
! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Documentation:Torts/Negligence_Employment|Employment]] • [[Documentation:Torts/Negligence_Pollution|Environmental pollution]] • [[Documentation:Torts/Negligence_Products|Harmful products]] • [[Documentation:Torts/Negligence_Hosting|Hosting patrons and guests]] • [[Documentation:Torts/Negligence_Mental_injury|Infliction of mental injury]] • [[Documentation:Torts/Negligence_Misrepresentation|Misrepresentation]] • [[Documentation:Torts/Negligence_Occupiers|Occupation of premises]] • [[Documentation:Torts/Negligence_Services|Professional services]] • [[Documentation:Torts/Negligence_Public_authorities|Public authorities]] • [[Documentation:Torts/Negligence_Misrepresentation|Pure]] [[Documentation:Torts/Negligence_Shoddy_Goods_Structures|economic]] [[Documentation:Torts/Negligence_Relational_Economic_Loss|loss]] • [[Documentation:Torts/Negligence_Relational_Economic_Loss|Relational economic loss]] • [[Documentation:Torts/Negligence_Rescuers|Rescuers]] • [[Documentation:Torts/Negligence_Shoddy_Goods_Structures|Shoddy goods or structures]] • [[Documentation:Torts/Negligence_Institutional_abuse|Treatment of indigenous children]] • [[Documentation:Torts/Negligence_Unborn_children|Unborn children]] <br />
| style="font-size:9pt;" |<br />
|-<br />
! colspan="2" style="background:#ffe599; width:200px; font-weight:normal; font-size:10pt; color: black;" | Dishonesty & Abuse of Position Torts<br />
|-<br />
! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Documentation:Torts/Abuse_of_process|Abuse of process]] • [[Documentation:Torts/Breach_of_confidence|Breach of confidence]] • [[Documentation:Torts/Conspiracy|Conspiracy]] • [[Documentation:Torts/Fraud|Fraud]] • [[Documentation:Torts/Inducing_breach_of_contract|Inducing breach of contract]] • [[Documentation:Torts/Injurious_falsehood|Injurious falsehood]] • [[Documentation:Torts/Intimidation|Intimidation]] • [[Documentation:Torts/Malicious_prosecution|Malicious prosecution]] • [[Documentation:Torts/Misfeasance_in_public_office|Misfeasance in public office]] • [[Documentation:Torts/Passing_off|Passing off]] • [[Documentation:Torts/Spoliation|Spoliation]] • [[Documentation:Torts/Unlawful_means|Unlawful interference with economic interests]]<br />
| style="font-size:9pt;" |<br />
|-<br />
! colspan="2" style="background:#ffe599; width:200px; font-weight:normal; font-size:10pt; color: black;" | [[Documentation:Torts/Strict_liability|Strict Liability]]<br />
|-<br />
! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Documentation:Torts/Keeping_dangerous_animals|Keeping dangerous animals]] • [[Documentation:Torts/Non-natural_use_of_land|Non-natural use of land]] • [[Documentation:Torts/Ultrahazardous_activities|Ultrahazardous activities]] • [[Documentation:Torts/Vicarious_liability|Vicarious liability]]<br />
| style="font-size:9pt;" |<br />
|-<br />
! colspan="2" style="background:#ffe599; width:200px; font-weight:normal; font-size:10pt; color: black;" | [[Documentation:Torts/Defences|Defences]]<br />
|-<br />
! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Documentation:Torts/Apportionment of liability| Apportionment of liability]] • [[Documentation:Torts/Consent|Consent]] • [[Documentation:Torts/Defamation#Defences|Defamation defences]] • [[Documentation:Torts/Defence of property|Defence of property]] • [[Documentation:Torts/Denials|Denials]] • [[Documentation:Torts/Excuses|Excuses]] • [[Documentation:Torts/Illegality|Illegality]] • [[Documentation:Torts/Legal authority|Legal authority]] • [[Documentation:Torts/Limitation|Limitation]] • [[Documentation:Torts/Necessity|Necessity]] • [[Documentation:Torts/Self-defence|Self-defence]]<br />
| style="font-size:9pt;" |<br />
|-<br />
! colspan="2" style="background:#ffe599; width:200px; font-weight:normal; font-size:10pt; color: black;" | [[Documentation:Torts/Remedies|Remedies]]<br />
|-<br />
! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Documentation:Torts/Apologies|Apologies]] • [[Documentation:Torts/Damages|Damages]] • [[Documentation:Torts/Injunctions|Injunctions]] • [[Documentation:Torts/Insurance|Insurance]] • [[Documentation:Torts/Legal_costs|Legal costs]] • [[Documentation:Torts/Mitigation|Mitigation]] • [[Documentation:Torts/Intentional interference with chattels|Proprietary]]<br />
| style="font-size:9pt;" |<br />
|-<br />
! colspan="2" style="background:#ffe599; width:200px; font-weight:normal; font-size:10pt; color: black;" | Tort Law & Legal Systems<br />
|-<br />
! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Documentation:Torts/Charter_values|Charter values]] • [[Documentation:Torts/Class_actions|Class actions]] • [[Documentation:Torts/Concurrent actions|Concurrent actions]] • [[Documentation:Torts/Constitutional_torts|Constitutional torts]] • [[Documentation:Torts/Indigenous_dispute_resolution|Indigenous dispute resolution]] • [[Documentation:Torts/No-fault compensation schemes|No-fault compensation schemes]]<br />
| style="font-size:9pt;" |<br />
|-<br />
! colspan="2" style="background:#ffe599; width:200px; font-weight:normal; font-size:10pt; color: black;" | [[Documentation:Torts/Tort_theory|Tort Theory]]<br />
|-<br />
! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Documentation:Torts/Instrumental_theories|Instrumental theories]] • [[Documentation:Torts/Relational_theories|Relational theories]] • [[Documentation:Torts/Critical_theories|Critical theories]] • [[Documentation:Torts/Reflexive_theories|Reflexive theories]]<br />
| style="font-size:9pt;" |<br />
|-<br />
! colspan="2" style="background:#ffe599; width:200px; font-weight:normal; font-size:10pt; color: black;" | Study Resources<br />
|-<br />
! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Documentation:Torts/1L strategy|1L strategy]] • [[Documentation:Torts/Answer exercises|Answer exercises]] • [[Documentation:Torts/Quizzes|Quizzes]] • [https://blogs.ubc.ca/beswick/torts/ Beswick's course site] • [https://open-2021.sites.olt.ubc.ca/files/2025/03/2025-TLEF-Poster-SamuelBeswick.pdf Opening Up Tort Law Project]<br />
| style="font-size:9pt;" |<br />
|-<br />
! colspan="2" style="background:#cfe2f3; width:200px; font-weight:normal; font-size:10pt; color: black;" | [[Documentation:Torts/Index|Index]]<br />
|-<br />
! colspan="2" style="background:#ffe599; width:200px; font-weight:normal; font-size:10pt; color: black;" | [https://creativecommons.org/licenses/by-nc-sa/4.0/ https://i.creativecommons.org/l/by-nc-sa/4.0/80x15.png] <br />
|-<br />
|}<br />
<noinclude><br />
[[category:Infobox Templates]] <br />
</noinclude></div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Documentation:Torts/Intimate_partner_violence&diff=899269Documentation:Torts/Intimate partner violence2026-06-18T20:45:30Z<p>SamuelBeswick: </p>
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<div>{{Infobox Torts }}<br />
<span style="font-size:200%;">{{SUBPAGENAME}}</span><br>In ''Ahluwalia v. Ahluwalia'',<ref>Ahluwalia v. Ahluwalia, [https://canlii.ca/t/kkzk1 2026 SCC 16].</ref> a majority of the Supreme Court of Canada recognised a new tort of coercive control by an intimate partner. The Court provided the following summary of the elements of this tort: <blockquote>205. To summarize, in making a finding of liability under the tort of intimate partner violence, a trial judge must assess whether the evidence establishes all three elements and evaluate the quantum of damages required to remedy the resulting harm. The burden of proof rests with the plaintiff on the civil standard of balance of probabilities. <br />
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206. First, the defendant’s wrongful conduct must have occurred during the course of an intimate partnership or in its aftermath.<br />
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207. Second, the defendant must have intentionally engaged in the abusive conduct. The plaintiff need only show that the defendant intended to engage in the impugned conduct, not that they subjectively intended to control their intimate partner. With respect to the abusive conduct itself, the plaintiff must adduce specific evidence to make out the tort claim. However, evidence may show a range of abusive conduct that appears less harmful in isolation but which may, considered cumulatively, form a pattern of coercive control. For guidance, the following are some types of conduct that are capable of constituting coercive control: physical and sexual violence; emotional and psychological abuse, including verbal abuse; harassment, humiliation, and denigration; financial control, stalking, and surveillance; behaviour that isolates a partner from others, or that denies a partner access to educational, employment, and recreational opportunities; litigation abuse; and threatening conduct, including threatening to harm the children or take them away, and threatening to commit suicide (see United Kingdom, Home Office, ''Controlling or Coercive Behaviour: Statutory Guidance Framework'', April 5, 2023 (online), at pp. 15-16; Canadian Association of Chiefs of Police, ''National Framework for Police Intervention in Intimate Partner Coercive Control'', July 2025 (online), at pp. 5-7). The foregoing list is merely illustrative and should not be treated as exhaustive.<br />
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208. Third, the plaintiff must show the conduct to be, on an objective measure, coercive control. The trial judge must determine whether a reasonable person, fully apprised of the relevant context of the relationship, would have perceived the defendant’s acts, considered cumulatively, as amounting to an assertion of control over the plaintiff that has the effect of depriving them of their dignity, autonomy, and equality in the relationship. The key feature of coercive control is, on an objective measure, the breakdown of the plaintiff’s will, manifested through a diminished power to decide important matters in their own life or to meaningfully take part in decisions that affect the intimate partnership. Neither the timing of the commencement of the claim nor when the plaintiff left the relationship has any necessary bearing on whether the plaintiff can successfully establish this element. The threshold serves an essential limiting function by anchoring the tort in the deprivation of autonomy, but where circumstances show that the reasonable person would conclude that the abusive conduct is incompatible with the intimate partnership, the burden will be readily met. In particular, courts must of course take care not to mischaracterize a victim’s resistance to a partner’s attempt at domination, or all misconduct in a high conflict breakdown, as coercive control under the new tort. Mere dysfunction of an intimate partnership, or a relationship marked by an imbalance between the parties in the absence of coercive control, is not intimate partner violence in this sense. But at the same time, trial judges must be cautious not to “subject evidence of non-physical [intimate partner violence] to heightened suspicion or skepticism, minimize it, or misattribute its harms to a high conflict relationship or post-separation emotionality” ….<br />
<br />
209. Proof by the plaintiff of these three elements establishes liability under the tort of intimate partner violence. The plaintiff’s dignitary harm flows from proof of the intentional wrong and does not require proof of other consequential harms. On this basis, the trial judge may then award general compensatory damages to provide redress for the harm to dignity, autonomy, and equality suffered through coercive control, as well as any other harm that flows therefrom.</blockquote> <br />
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<references /></div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Documentation:Torts/Intimate_partner_violence&diff=899268Documentation:Torts/Intimate partner violence2026-06-18T20:42:41Z<p>SamuelBeswick: </p>
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<div>{{Infobox Torts }}<br />
<span style="font-size:200%;">{{SUBPAGENAME}}</span><br>In ''Ahluwalia v. Ahluwalia'',<ref>Ahluwalia v. Ahluwalia, [https://canlii.ca/t/kkzk1 2026 SCC 16].</ref> the Supreme Court of Canada recognised a new tort of coercive control by an intimate partner. <br />
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{{DISPLAYTITLE:<span style="position: absolute; clip: rect(1px 1px 1px 1px); clip: rect(1px, 1px, 1px, 1px);">{{FULLPAGENAME}}</span>}}<br />
<references /></div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Documentation:Torts/Intimate_partner_violence&diff=899267Documentation:Torts/Intimate partner violence2026-06-18T20:41:22Z<p>SamuelBeswick: Created page with "{{Infobox Torts }} <span style="font-size:200%;">{{SUBPAGENAME}}</span><br>In Ahluwalia v. Ahluwalia, 2026 SCC 16, the Supreme Court of Canada recognised a new tort of coercive control by an intimate partner: {{DISPLAYTITLE:<span style="position: absolute; clip: rect(1px 1px 1px 1px); clip: rect(1px, 1px, 1px, 1px);">{{FULLPAGENAME}}</span>}} <references />"</p>
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<div>{{Infobox Torts }}<br />
<span style="font-size:200%;">{{SUBPAGENAME}}</span><br>In Ahluwalia v. Ahluwalia, 2026 SCC 16, the Supreme Court of Canada recognised a new tort of coercive control by an intimate partner: <br />
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{{DISPLAYTITLE:<span style="position: absolute; clip: rect(1px 1px 1px 1px); clip: rect(1px, 1px, 1px, 1px);">{{FULLPAGENAME}}</span>}}<br />
<references /></div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Documentation:Torts/Reflexive_theories&diff=899263Documentation:Torts/Reflexive theories2026-06-18T20:36:31Z<p>SamuelBeswick: </p>
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<div>{{Infobox Torts }}<br />
<span style="font-size:200%;">{{SUBPAGENAME}}</span><br> While [[Sandbox:Torts/Instrumental theories|instrumental]], [[Documentation:Torts/Relational theories|relational]], and [[Sandbox:Torts/Critical theories|critical]] theories generally aim to present a grand theory or principle that captures tort law, other legal scholars reject that endeavour altogether. Instead, scholars such as [https://en.wikipedia.org/wiki/Jane_Stapleton Jane Stapleton] and [https://www.christs.cam.ac.uk/college/people/fellows/professor-peter-cane Peter Cane] emphasise the common law and practice of torts as a system that has developed over the course of a millennium. Over this long time span, the adjudication of disputes, the enactment of legislation, and the lawyerly, political and scholarly advocacy of many people have contributed to the "human construct" of tort law and practice.<ref name=":0">{{Cite book|title=Three Essays on Torts|last=Stapleton|first=Jane|publisher=Oxford University Press|year=2021|isbn=|location=Oxford;New York|pages=1-2}}</ref> Furthermore, tort law can be described, theorized and critiqued in terms of what its doctrine and practices purport to do, actually do, and fail to achieve. As Cane puts it, the only real unifying feature of tort law is that “tort law is the law of torts”.<ref>{{Cite book|title=Key Ideas in Tort Law|last=Cane|first=Peter|publisher=Hart Publishing|year=2017|isbn=|location=|pages=13}}</ref> <br />
==Taking common law seriously==<br />
{| class="wikitable" style="float:right;margin-left;10px;width:30%"<br />
! style="background-color:#CEE0F2" |Lady Brenda Hale "Principle and Pragmatism in Developing Private Law"<ref>Cambridge Freshfields Lecture [https://www.youtube.com/watch?v=w0CpWzyVw-g "Principle and Pragmatism in Developing Private Law"] ''Cambridge Law Faculty'' (7 March 2019)</ref><br />
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|{{#widget:YouTube|id=w0CpWzyVw-g|height=215|width=320}}In a Cambridge Freshfields Lecture Lady Brenda Hale discusses what should guide the development of tort law, principle or pragmatism?<br />
|}The term "reflexive'" theory has been used by [https://en.wikipedia.org/wiki/Jane_Stapleton Jane Stapleton] in response to scholars who advance grand theories of tort law. In her essays, Stapleton argues that although grand theory may have value, "[r]eality always trumps the model". <ref name=":0" /> Instead, Stapleton elaborates a perspective that "seeks a creative interactive conversation with judges" justifying the name "reflexive tort scholarship". <ref name=":0" /> <br />
An important aspect of the reflexive perspective is tort law's ability to evolve: “as society changes and develops, so too does the common law change and evolve in line with this”.<ref>{{Cite book|title=Three Essays on Torts|last=Stapleton|first=Jane|publisher=Oxford University Press|year=2021|isbn=|location=Oxford;New York|pages=6}}</ref> Ultimately, for Stapleton, the tort law is in constant incremental evolution, without a single grounding purpose or conception. <br />
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The practice of tort law can be seen to support this perspective, as reflected in Chief Justice McLachlin's statement in ''R v. Imperial Tobacco Canada Ltd'': <blockquote>"[t]he law is not static and unchanging. Actions that yesterday were deemed hopeless may tomorrow succeed."<ref name=":02">''R v. Imperial Tobacco Canada Ltd'' [2011] SCC 42 ('''[https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#19_5_2_1__R_v__Imperial_Tobacco_Canada_Ltd__2011__SCC_42 §19.5.2.1]''') at para 21.</ref></blockquote><br />
{| class="wikitable" style="width: 70%"<br />
! style="background-color:#F2E0CE" |''Wilkinson v. Downton'' <ref name=":8">''Wilkinson v. Downton'' [1897] EWHC 1 (QB) ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#3_1_1__Wilkinson_v__Downton__1897__EWHC_1__QB_ §3.1.1]).</ref><br />
|-<br />
|A reflexive perspective may help us to understand the evolution of the tort of [https://wiki.ubc.ca/Sandbox:Torts/Intentional_infliction_of_mental_suffering intentional infliction of mental suffering] (IIMS). After the recognition of the tort in 1897,<ref name=":8" /> the tort evolved to accommodate the modernisation of social norms. In ''Rhodes v. OPO'', the United Kingdom Supreme Court expanded the tort beyond its gendered origins and listed five elements required for a successful action.<ref name=":11">''Rhodes v. OPO'', [https://www.bailii.org/uk/cases/UKSC/2015/32.html <nowiki>[2015] UKSC 32</nowiki>] [https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#3_2_1__Rhodes_v__OPO__2015__UKSC_32 (§3.2.1]) at paras 107, 110–111, 115–116.</ref> It acknowledged the role of social norms in what can be considered "flagrant and outrageous" conduct, an element of the claim of IIMS.<ref name=":82">''Fitzpatrick v. Orwin'', [https://www.canlii.org/en/on/onsc/doc/2012/2012onsc3492/2012onsc3492.html 2012 ONSC 3492] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#3_2_2__Fitzpatrick_v__Orwin__Squires__Squires__2012__ONSC_3492 §3.2.2]) at paras 117–18.</ref> The culmination of the doctrine in Canada the ''Prinzo'' test illustrates the 'living' common law.<br />
|}Stapleton's perspective is shared by academics [https://www.law.ox.ac.uk/people/james-goudkamp James Goudkamp] and [https://www.law.hku.hk/academic_staff/professor-john-murphy/ John Murphy], who highlight a variety of areas in tort law that grand instrumental and relational theories fail to explain.<ref name=":1">{{Cite journal|last=James Goudkamp & John Murphy|date=2016|title=The Failure of Universal Theories of Tort Law|journal=Oxford Legal Studies Research Paper|volume=22|pages=84}}</ref> These scholars consider Weinrib’s corrective justice theory, Stevens’ rights-based account, and Posner’s economic analysis and conclude that each of the theories “fall well short of their stated goal of being able to explain all of tort law in all the major common-law jurisdictions”.<ref name=":1" /><br />
{{DISPLAYTITLE:<span style="position: absolute; clip: rect(1px 1px 1px 1px); clip: rect(1px, 1px, 1px, 1px);">{{FULLPAGENAME}}</span>}}<br />
<references /></div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Documentation:Torts/Instrumental_theories&diff=899262Documentation:Torts/Instrumental theories2026-06-18T20:35:18Z<p>SamuelBeswick: </p>
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{| class="wikitable" style="float:right;margin-left;10px;width:30%"<br />
! style="background-color:#CEE0F2" |Ralph Nadar on the importance tort law <br />
|-<br />
|In this POLITICO episode [https://www.youtube.com/watch?v=kiJpuDqYpK8 "Why Ralph Nader wants you to know about tort law"], American cartoonist Matt Wuerker guides us through Ralph Nader's take on the importance of tort law. {{YouTube|id=kiJpuDqYpK8|width=100%|height=300}} <br />
|}Instrumental theories of tort law are concerned with what tort law ''does'' or ''should do'' in society. This perspective understands tort law as an instrument to achieve certain goals.<ref>{{Cite journal|last=Shmueli|first=Benjamin|date=2014|title=Legal pluralism in tort law theory: balancing instrumental theories and corrective justice.|url=|journal=University of Michigan Journal of Law Reform|volume=48|pages=750|via=}}</ref> It is a means to one (or some) particular societal ends. <br />
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Instrumental theorists tend to take an external (outsiders’) perspective on tort law, by stepping back from the system and assessing and critiquing it in terms of how well tort law achieves its goals.<ref name=":14">{{Cite web|last=Solum|first=Lawrence|date=2004|title=The Internal Point of View|url=https://lsolum.typepad.com/legal_theory_lexicon/2004/05/legal_theory_le.html|url-status=live|archive-url=|archive-date=|access-date=|website=Legal Theory Lexicon}}</ref> The main goals advanced by instrumental theorists include compensation ([https://en.wikipedia.org/wiki/Morton_Horwitz Morton Horwitz]), deterrence ([https://en.wikipedia.org/wiki/Guido_Calabresi Guido Calabresi] and [https://en.wikipedia.org/wiki/Richard_Posner Richard Posner]), or punishment ([https://www.law.columbia.edu/faculty/george-p-fletcher George Fletcher]). Professor Basil Markesinis discusses how the history of tort law has seen the pursuit of different ends: "punishment, appeasement, deterrence, compensation, and efficient loss spreading of the cost of accidents. None offers a complete justification; all are important, though at different stages one may have been more prominent than the rest."<ref name=":0">{{Cite web|last=Markesinis|first=Basil S.|date=17 June 2023|title=Tort law|url=https://www.britannica.com/topic/tort#ref16464|url-status=live|archive-url=|archive-date=|access-date=|website=Encyclopaedia Britannica|publisher=}}</ref><br />
== Compensation ==<br />
Compensation theories of tort law consider the purpose of tort law to be the compensation of injured victims. We see this idea in the tort doctrines that determine whether harm has occurred and that provide for a damages [[Sandbox:Torts/Remedies|remedy]] that compensates an injured party for the losses they have suffered.<ref name=":0" /> In remedying injured victims, tort law "overwhelmingly relies on the common currency of money".<ref name=":1">{{Cite book|title=Tort Wars|last=Levin|first=Joel|publisher=Cambridge University Press|year=2008|isbn=|location=Cambridge|pages=54-56}}</ref> Lord Blackburn summarised the compensatory principle in ''Livingstone v. Rawyards Coal Co.'': that the award of damages "should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation."<ref>''Livingstone v. Rawyards Coal Co'' (1880) 5 App Cas 25 at para 39.</ref> <br />
{| class="wikitable" style="float:right;margin-left;10px;width:30%"<br />
! style="background-color:#CEE0F2" |Greg Keating on Tort Theory<ref group="website">"Greg Keating on Tort Theory" (11 April 2021) [https://podcasts.google.com/feed/aHR0cHM6Ly9hbmNob3IuZm0vcy80ZWEzMzYzYy9wb2RjYXN0L3Jzcw/episode/Nzk3MWI3ZTUtMGUwMC00NTE4LThhYTYtMzBiYWEwYmFiNDE3?sa=X&ved=0CAUQkfYCahcKEwigxJKgpYeBAxUAAAAAHQAAAAAQCg Private Law Podcast] </ref><br />
|-<br />
|In this episode of the ''[https://podcasts.google.com/feed/aHR0cHM6Ly9hbmNob3IuZm0vcy80ZWEzMzYzYy9wb2RjYXN0L3Jzcw/episode/Nzk3MWI3ZTUtMGUwMC00NTE4LThhYTYtMzBiYWEwYmFiNDE3?sa=X&ved=0CAUQkfYCahcKEwigxJKgpYeBAxUAAAAAHQAAAAAQCg Private Law Podcast]'' host Felipe Jimenez discuss with professor of Law and Philosophy at the University of Southern California Greg Keating, to discuss central arguments in tort theory between dominant instrumentalist and relational schools.<br />
{{#widget:Iframe|url=https://open.spotify.com/embed/episode/6JjfZGtdmMoG1ckjPujo7J?utm_source=generator|width=100%|height=100|border=0}} <br />
|}The conception of tort law as a compensatory mechanism gained traction in the industrialization era.<ref name=":6">Schwartz, Gary (1981). "Tort law and the economy in nineteenth-century America: A reinterpretation". ''The Yale Law Journal''. '''8''': 1718.</ref> In the mid-20th century, scholars such as [https://en.wikipedia.org/wiki/Morton_Horwitz Morton Horwitz], [https://en.wikipedia.org/wiki/Jeffrey_O%27Connell Jeffrey O'Connell], Fleming James Jr., and [https://en.wikipedia.org/wiki/George_L._Priest George Priest] emphasized the harm element of tort law and advanced insurance and compensation-based theories of civil liability.<ref name=":8">{{Cite book|title=Recognizing wrongs|last=Goldberg, John CP, and Benjamin C. Zipursky|first=|publisher=Harvard University Press|year=2020|isbn=|location=|pages=74, 222}}</ref> For [https://en.wikipedia.org/wiki/Morton_Horwitz Morton Horwitz], the "social function of tort law ... is the provision of compensation". Horwitz advanced the idea that tort is a system where losses are shifted from the injurer to the injured, culminating in what is known as “subsidy theory”.<ref>{{Cite book|title=The Transformation of American Law,|last=Morton J.|first=Horwitz|publisher=Oxford University Press|year=1992|isbn=|location=New York|pages=}}</ref> Gary Schwartz addressed the potential of tort law to be a tool for providing “subsidy [for] economic enterprise” in the era of mass economic growth.<ref name=":6" /> Their theories explain why tort law should award compensation for workplace accidents, product liability, and environmental disasters. <br />
=== Critiques of compensation theories ===<br />
<br />
==== Financial impracticalities ====<br />
While compensation obviously plays an important role in tort law, other scholars question its centrality.<ref>{{Cite journal|last=O'Connell,|first=Jeffrey|date=1987|title=Tort Versus no-Fault: Compensation and Injury Prevention|url=|journal=Accident Analysis and Prevention|volume=19|pages=63|via=}}</ref> As a system of injury compensation, the tort system is hardly the most efficient. There are often significant barriers to victims actually receiving compensation through the tort system. Tort law depends upon the plaintiff establishing a particular defendant's liability through breach of duty, fault, causation (which are hurdles to obtaining a remedy), and an effective tort system requires there to be evidence, a pecunious tortfeasor, and competent legal representation. One study identified the United States tort system costing $443 billion in 2020 to administer, with successful plaintiffs receiving only 53 cents of every dollar awarded.<ref name=":15">{{Cite journal|last=David McKnight and Paul Hinton, the Brattle Group|first=|date=2022|title=Tort Costs in America An Empirical Analysis of Costs and Compensation of the U.S. Tort System|url=https://instituteforlegalreform.com/research/tort-costs-in-america-an-empirical-analysis-of-costs-and-compensation-of-the-u-s-tort-system/|journal=U.S. Chamber of Commerce Institute for Legal Reform|volume=|pages=4|via=}}</ref> <br />
<br />
These features of the tort system—legal liability and defendant solvency—present challenges to theories that promote the centrality of compensation to tort law. On the one hand, it can be costly and risky for a plaintiff to pursue a tort case: they may commit to extensive legal expenses and yet still fail to establish all of the elements of a tort claim because of evidential or other deficiencies in their case.<ref>{{Cite journal|last=Geistfeld|first=Mark|date=2003|title=Negliegence, Compensation, and the Coherence of Tort Law|url=https://heinonline.org/HOL/Page?handle=hein.journals/glj91&div=25&g_sent=1&casa_token=&collection=journals|journal=The Georgetown law journal|volume=91|pages=585|via=}}</ref><ref>{{Cite journal|last=Ursin|first=Edmund|date=2013|title=Holmes, Cardozo, and the Legal Realists: Early Incarnations of Legal Pragmatism and Enterprise Liability|url=|journal=San Diego Law Review|volume=50|pages=558|via=}}</ref> On the other hand, not all defendants may be capable of paying damages awards, leaving plaintiffs with the possibility of receiving no financial remedies. While the doctrine of [[Sandbox:Torts/Vicarious liability|vicarious liability]] may facilitates tort's compensatory goal by attributing liability to a deep-pocketed principal, it does not always apply. Thus there are barriers to compensation, which brings into question its centrality to the tort system. <br />
{| class="wikitable" style="width: 95%"<br />
! style="background-color:#F2E0CE" |''Caplan v. Atas,'' 2021 ONSC 670<ref>''Caplan v. Atas,'' [https://www.canlii.org/en/on/onsc/doc/2021/2021onsc670/2021onsc670.html 2021 ONSC 670] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#5_1_4__Caplan_v__Atas__2021__ONSC_670 §5.1.4]).</ref><br />
|-<br />
|While the compensation theories advance an idea that tort law serves to compensate victims, cases like ''Caplan v. Atas'' illustrate the difficulties of translating theory to practice.<ref>''Caplan v. Atas'' [2021] ONSC 670 ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#5_2_4__Caplan_v__Atas__2021__ONSC_670 §5.2.4]). </ref> The defendant carried out a harassment campaign against 150 victims, but her financial impecuniousness made her effectively "judgment-proof," leaving her victims without an effective remedy.<ref>''Caplan v. Atas'' [2021] ONSC 670 ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#5_2_4__Caplan_v__Atas__2021__ONSC_670 §5.2.4]) at para 96.</ref><br />
|}<br />
<br />
==== Contrasting tort law to 'no fault' compensation schemes ====<br />
{| class="wikitable" style="float:right;margin-left;10px;width:30%"<br />
! style="background-color:#F2CEE0" |In the news<br />
|-<br />
! style="background-color:#FFF5FA" |''The practical realities of medical negligence in Canada''<br />
|-<br />
|[[File:CMPA.jpg|frameless]] <br />
The Radio Canada article "[https://ici.radio-canada.ca/rci/en/news/1971331/want-to-sue-your-doctor-youll-be-up-against-a-powerful-group-with-billions-of-dollars Want to sue your doctor? You’ll be up against a powerful group with billions of dollars]" considers the difficulties of litigating medical malpractice claims against the Canadian Medical Protective Association, an organisation that defends medical professionals and has $6B in assets. The article states that "[b]ecause of the odds being stacked so heavily against the injured person, very few cases are cost effective in bringing forward," suggesting that compensation is very difficult to achieve through such tort claims.<ref>{{Cite web|last=Lindsay|first=Bethany|date=2023|title=Want to sue your doctor? You’ll be up against a powerful group with billions of dollars|url=https://ici.radio-canada.ca/rci/en/news/1971331/want-to-sue-your-doctor-youll-be-up-against-a-powerful-group-with-billions-of-dollars|url-status=live|archive-url=|archive-date=|access-date=|website=RCI Radio}}</ref><br />
|}<br />
If compensation is the societal goal, why should it be necessary for defendants to pay? There is a more direct way to go about compensating the injured than requiring plaintiffs to prove wrongdoing and injury in court. We could replace the fault-based tort system with a comprehensive compensation scheme that compensates injury victims regardless of who was at fault. In the 1960s, American law professors [https://en.wikipedia.org/wiki/Robert_Keeton Robert Keeton] and [https://en.wikipedia.org/wiki/Jeffrey_O%27Connell Jeffrey O'Connell] advocated for [[Sandbox:Torts/No-fault compensation schemes|'no-fault' compensation systems]], considering the tort system "a failure in its measuring of compensation for personal injuries."<ref>{{Cite journal|last=Markhoff|first=Abraham|date=October 1968|title=Compensation Without Fault and the Keeton-O'Connell Plan: A Critique|url=https://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?article=3619&context=lawreview|journal=St. John's Law Review|volume=43|issue=2|pages=188|via=}}</ref> In the 1970s, New Zealand introduced the most comprehensive no-fault compensation scheme in the world, which replaces tort liability for (most) personal injuries occurring in the country. Advocates of no-fault systems argue they are particularly valuable as a replacement to medical malpractice or workplace injury tort claims, where meaningful compensation through the adversarial tort system can be challenging to achieve.<ref name=":7">{{Cite journal|last=Gibson|first=Elaine|date=2016|title=Is it Time to Adopt a No-Fault Scheme to Compensate Injured Patients?|url=https://www.canlii.org/en/commentary/doc/2016CanLIIDocs128#!fragment/zoupio-_Tocpdf_bk_15/BQCwhgziBcwMYgK4DsDWszIQewE4BUBTADwBdoAvbRABwEtsBaAfX2zhoBMAzZgI1TMAjAFYAlABpk2UoQgBFRIVwBPaAHJ1EiITC4Ei5Ws3bd+kAGU8pAEJqASgFEAMo4BqAQQByAYUcTSMD5oUnYxMSA|journal=Ottawa Law Review|volume=47|pages=327|via=}}</ref> <br />
<br />
== Deterrence ==<br />
Deterrence theories of tort law tend to conceive of the tort system as a mechanism for discouraging harmful conduct through the threat of potential civil liability.<ref name=":0">{{Cite web|last=Markesinis|first=Basil S.|date=17 June 2023|title=Tort law|url=https://www.britannica.com/topic/tort#ref16464|url-status=live|archive-url=|archive-date=|access-date=|website=Encyclopaedia Britannica|publisher=}}</ref> In the 1970s, scholars such as [https://en.wikipedia.org/wiki/Guido_Calabresi Guido Calabresi] and [https://en.wikipedia.org/wiki/Richard_Posner Richard Posner] advanced economic arguments for how tort law deterred individuals and entities from engaging in harmful conduct. Their theories precipitated an “explosion of scholarship analyzing tort law in economic terms” and has put deterrence at the centre of instrumentalist theory generally.<ref name=":2">{{Cite journal|last=Schwartz|first=Gary|date=1997|title=Mixed Theories of Tort Law: Affirming both Deterrence and Corrective Justice|url=|journal=Texas Law Review|volume=7|pages=103|via=}}</ref> <br />
<br />
In ''The Cost of Accidents'', [https://en.wikipedia.org/wiki/Guido_Calabresi Guido Calabresi] explored how society can reduce accident costs by discouraging "activities that are 'accident prone'" through enforcing monetary awards (damages) and encouraging "safer activities [or] safer ways of engaging in the same activities".<ref name=":3">Calabresi, Guido. ''The Cost of Accidents''. Yale University Press. p.&nbsp;68.</ref> <br />
<br />
[https://en.wikipedia.org/wiki/Richard_Posner Richard Posner] utilized economic tools of analysis to demonstrate how deterrence can explain tort doctrine, particularly when it comes to business enterprise. The threat of liability can lead to efficient behaviour modification through potential defendants investing in precautions and compliance with safety guidelines in order to avoid accidents.<ref name=":9">{{Cite book|title=The economic structure of tort law|last=Landes, William & Richard Posner|first=|publisher=Harvard University Press|year=1987|isbn=|location=Cambridge|pages=}}</ref> In this way, the "law becomes the agent for the market rather than its principle".<ref>{{Cite book|title=Canadian Perspectives on Legal Theory|last=Devlin|first=Richard|publisher=Emond Montgomery Publications Ltd|year=1991|isbn=|location=Toronto|pages=195}}</ref><br />
{| class="wikitable" style="width: 95%"<br />
! style="background-color:#F2E0CE" |''Hill v Church of Scientology of Toronto<ref name=":16"> ''Hill v. Church of Scientology of Toronto'' [1995] CanLII 59 (SCC) ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#9_5_3__Hill_v__Church_of_Scientology_of_Toronto__1995__CanLII_59__SCC_ §9.5.3]) at para 196. </ref>''<br />
|-<br />
|The Supreme Court of Canada has said that "[d]eterrence is an important justification for punitive damages."<ref>''Whiten v. Pilot Insurance Co''., 2002 SCC [https://www.canlii.org/en/ca/scc/doc/2002/2002scc18/2002scc18.html?autocompleteStr=Whiten%20v.%20Pilot%20Insurance%20Co.%2C%20%5B2002&autocompletePos=1 18 at para 120].</ref> Cases like ''[https://en.wikipedia.org/wiki/Hill_v_Church_of_Scientology_of_Toronto Hill v Church of Scientology of Toronto]'' illuminate tort law's potential deterrent effect. The Court awarded $800,000 in punitive damages to Hill, who experienced significant defamation at the hands of the Church of Scientology and it's lawyer. The Court stated that punitive damages "are in the nature of a fine which is meant to act as a deterrent to the defendant and to others from acting in this manner."<ref name=":16" /> <br />
|}<br />
<br />
=== Critiques of deterrence theories ===<br />
==== The pitfalls of economic assumptions ====<br />
Deterrence theories of tort liability rely heavily on the assumption that the threat of civil liability influences behaviour. <ref name=":6">{{Cite journal|last=Jonathan Cardi, Randall D. Penfield & Albert H. Yoon|first=|date=2012|title=Does Tort Law Deter Individuals? A Behavioral Science Study|url=|journal=Journal of Empirical Legal Studie|volume=9|pages=568-9|via=}}</ref> [https://en.wikipedia.org/wiki/Richard_Posner Posner] and [https://en.wikipedia.org/wiki/Guido_Calabresi Calabresi]'s work tends to assume that "people rationally pursue the goal of wealth maximization" and thus are subject to legal discouragement. <ref>{{Cite journal|last=Shuman|first=Daniel|date=1993|title=The Psychology of Deterrence in Tort Law|url=|journal=University of Kansas Law Review|volume=42|pages=115|via=}}</ref> Stephen Sugarman, by contrast, has cast significant doubt on this assumptions, illuminating behavioural elements that undermine deterrence in the tort law system.<ref>{{Cite journal|last=Sugarman|first=Stephen|date=1985|title=Doing Away With Tort Law|url=|journal=California Law Review|volume=73|pages=558|via=}}</ref> Studies have also shown that people are "particularly ignorant to the law" and often "discount the possibility of being held liable," which might call into question theories that are premised on assumptions of individuals acting as rational actors in society. <ref name=":6" /><br />
<br />
==== Insurance and varying relationships with civil liability ====<br />
Some argue that the widespread availability of viability insurance, which protects people from direct exposure to the costs of litigation, undermines the claim that tort law deters. Insured defendants may face limited incentive to avoid tortious conduct as they are protected from financial misfortune by their insurance company.<ref name=":0" /> On the other hand, the growth of corporate governance, and big business' investment in [https://en.wikipedia.org/wiki/Environmental,_social,_and_corporate_governance environmental, social, and governance models] have shown the potential impact of deterrence on corporations.<ref>{{Cite web|last=Pérez|first=Lucy|date=2022|title=Does ESG really matter-and why?|url=https://www.mckinsey.com/capabilities/sustainability/our-insights/does-esg-really-matter-and-why|url-status=live|archive-url=|archive-date=|access-date=|website=Mckinsey}}</ref> Furthermore, even though economic principles of deterrence have been helpful in understanding behaviours of some commercial entities, the same principles may not apply equally to individuals' actions. In many intentional tort cases deterrence does not seem to play much of a role at all. For example, in ''Caplan v. Atas'', the threat of monetary damages against the respondent did not seem to deter her behaviour.<ref name=":5">''Caplan v. Atas'' [https://www.canlii.org/en/on/onsc/doc/2021/2021onsc670/2021onsc670.html <nowiki>[2021] ONSC 670</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#5_2_4__Caplan_v__Atas__2021__ONSC_670 §5.2.4]) at para 93.</ref> The Court noted the defendant is "destitute", "owns no property" and "is an undischarged bankrupt," making her effectively "judgment proof".<ref name=":5" /> <br />
<br />
==== A one sided approach ====<br />
If deterrence is the societal goal, why should it fall to plaintiffs to pursue it through private litigation, rather than a state regulator? [https://michigan.law.umich.edu/faculty-and-scholarship/our-faculty/scott-hershovitz Scott Hershovitz], while acknowledging the benefits of deterrence, notes that tort law is "far from the best available" method for achieving deterrence of harmful conduct, as compared to systems of government regulation.<ref>{{Cite book|url=https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1122&context=book_chapters|title=Philosophical Foundations of the Law of Torts|last=Hershovitz|first=Scott|publisher=Oxford University Press|year=2014|isbn=|editor-last=Oberdiek|editor-first=John|location=|pages=88-89|chapter=Tort as a Substitute for Revenge}}</ref><br />
<br />
[https://en.wikipedia.org/wiki/Ernest_Weinrib Ernest Weinrib] criticizes instrumental theories for focusing on "each of the litigants independently," while ignoring "the moral underpinning for the relationship between the plaintiff and defendant".<ref>{{Cite book|title=Tort Theory|last=Cooper-Stephenson, Ken & Elaine Gibson|first=|publisher=Captus University Publications|year=1993|isbn=|location=North York|pages=8}}</ref> On his view, the problem is not solved by simply conceiving of tort law as having dual goals: deterrence (defendant-focused) and compensation (plaintiff-focused). Weinrib states that compensation and deterrence are "mutually truncating", meaning that tort law only compensates victims when damages can deter conduct, and only can deter conduct when there is a victim to compensate. <ref name=":4">{{Cite book|title=Tort Theory|last=Weinrib|first=Ernest J.|publisher=Captus University Publications|year=1993|isbn=|editor-last=Cooper-Stephenson|editor-first=Ken|location=|pages=9|chapter=Formalism and its Canadian Critics|editor-last2=Gibson|editor-first2=Elaine}}</ref> Therefore, neither goal of compensation or deterrence can serve a "justificatory function in the tort context".<ref name=":4" /> <br />
<br />
== Punishment ==<br />
The theory that tort law is concerned primarily with punishing wrongdoers is less prominent today than it once was. The area of law most concerned punishment is [https://en.wikipedia.org/wiki/Criminal_law criminal law] (evident in the practice of incarceration and loss of liberty), although some elements of tort law have a punitive dimension.<ref name=":10">{{Cite journal|last=Ellis|first=Dorsey|date=1982|title=Fairness and Efficiency in the Law of Punitive Damages|url=|journal=Southern California Law Review|volume=1|pages=2|via=}}</ref> An award of damages is a meaningful way in which defendants are held accountable for their actions, and in some jurisdictions (notably the United States) can be very substantial.<ref name=":11">{{Cite journal|last=Cappelletti|first=Marco|date=2019|title=Comparative Reflections on Punishment in Tort Law.|url=https://www.iuscommune.eu/html/prize/pdf/2021_Cappelletti.pdf|journal=Hart Publishing|volume=|pages=|via=}}</ref> Punitive damages are explicitly awarded to "make an example of [the defendant] in order to deter others from committing the same tort".<ref>{{Cite book|title=Canadian Tort Law: Cases, Notes & Materials|last=Linden, Allen M., Lewis Klar, and Bruce P. Feldthusen.|first=|publisher=LexisNexis|year=1988|isbn=|location=Toronto|pages=54}}</ref> <br />
<br />
Punishment as an aim in tort law, can be understood in two forms: on one hand that punishment is "a device geared toward achievement of societal goals such as deterrence or retribution in the interests of society," and on the other that punishment is "rooted in ideas of interpersonal justice in that it promotes private interests by, for example, empowering the victim of a wrong to take her revenge against the tortfeasor."<ref name=":11" /> In ''Vorvis v. Insurance Corp. of British Columbia'', the Supreme Court of Canada set out the circumstances where a tortfeasor's conduct justifies punishment: <blockquote>"... punitive damages may only be awarded in respect of conduct which is of such nature as to be deserving of punishment because of its harsh, vindictive, reprehensible and malicious nature. I do not suggest that I have exhausted the adjectives which could describe the conduct capable of characterizing a punitive award, but in any case where such an award is made the conduct must be extreme in its nature and such that by any reasonable standard it is deserving of full condemnation and punishment."<ref>''Vorvis v. Insurance Corp. of British Columbia'', 1989 [https://www.canlii.org/en/ca/scc/doc/1989/1989canlii93/1989canlii93.html CanLII 93 (SCC)]at 1107.</ref></blockquote>[https://michigan.law.umich.edu/faculty-and-scholarship/our-faculty/scott-hershovitz Scott Hershovitz] has explored how tort law perhaps operates as a "substitute for revenge".<ref name=":12">{{Cite book|title="Tort as a Substitute for Revenge" in Philosophical Foundations of the Law of Torts|last=Hershovitz|first=Scott|publisher=Oxford University Press|year=2014|isbn=|location=Oxford|pages=}}</ref> In most jurisdictions, the terms 'punitive' and 'vindictive' are used interchangeably to "denote extra-compensatory [[Sandbox:Torts/Damages|damages]] awarded for willful or wanton misconduct".<ref name=":12" /> The term 'vindictive' might suggest that the damages serve "as a kind of revenge inflicted through a tort suit".<ref name=":12" /> However, even when such damages aren't awarded and only [[Sandbox:Torts/Damages#Compensatory damages|compensatory damages]] are available, a tort suit still allows the plaintiff to inflict harm on the person who harmed them as all tort damages are punitive in the sense that they are "painful to pay".<ref>{{Cite book|url=https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1122&context=book_chapters|title=Philosophical Foundations of the Law of Torts|last=Hershovitz|first=Scott|publisher=Oxford University Press|year=2014|isbn=|editor-last=Oberdiek|editor-first=John|location=|pages=87-88|chapter=Tort as a Substitute for Revenge}}</ref><br />
<br />
=== Critiques of punishment theories ===<br />
<br />
==== Criminal law is a more effective means ====<br />
Joel Levin argues that "the importance of punitive damages is easy to overstate".<ref>{{Cite book|title=Tort Wars|last=Levin|first=Joel|publisher=Cambridge University Press|year=2008|isbn=|location=Cambridge|pages=42}}</ref> First, tort law can be ineffective, as it is not within every victim's capacity to navigate "complicated legal proceedings" and hire a lawyer, to ultimately achieve desired punishment.<ref name=":13">{{Cite book|url=https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1122&context=book_chapters|title=Philosophical Foundations of the Law of Torts|last=Hershovitz|first=Scott|publisher=Oxford University Press|year=2014|isbn=|editor-last=Oberdiek|editor-first=John|location=|pages=98|chapter=Tort as a Substitute for Revenge}}</ref> Additionally, the limited range of remedies available in tort law might not "send a very satisfying message" in cases of serious wrongdoing.<ref name=":13" /> In such cases, the "fearsome consequences" imposed by the criminal law system might be more effective at punishing wrongdoers. <br />
<br />
[https://www.stir.ac.uk/people/256371 Antony Duff] argues that if tort law were to assume a more punitive role, it would have to become "more like criminal law" by having a larger array of defences and the threat of incarceration.<ref>https://link.springer.com/content/pdf/10.1007/s10982-015-9230-4.pdf</ref> However, unlike criminal law, tort law generally does not recognizes [[Sandbox:Torts/Excuses|excuses]] and affords more limited defences for tortfeasors.<ref>{{Cite journal|last=Goldberg|first=John C.P.|date=June 2015|title=Inexcusable Wrongs|url=https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2489177|journal=California Law Review|volume=103|issue=3|page=477|pages=467|via=SSRN}}</ref> In addition, tort law's remedies are comparatively more restrained than under criminal law, where wrongdoers face significant consequences such as loss of liberty. <br />
<br />
==== Judgment proof wrongdoers ====<br />
A wrongdoer may also be [https://en.wikipedia.org/wiki/Judgment_proof judgment-proof], and therefore immune to the monetary consequences imposed by the tort system.<ref>{{Cite book|url=https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1122&context=book_chapters|title=Philosophical Foundations of the Law of Torts|last=Hershovitz|first=Scott|publisher=Oxford University Press|year=2014|isbn=|editor-last=Oberdiek|editor-first=John|location=|pages=99|chapter=Tort as a Substitute for Revenge}}</ref> Paying an award of damages can in practice be avoided if the defendant has no tangible assets, as in ''Caplan v. Atas''.<ref name=":5">''Caplan v. Atas'' [https://www.canlii.org/en/on/onsc/doc/2021/2021onsc670/2021onsc670.html <nowiki>[2021] ONSC 670</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#5_2_4__Caplan_v__Atas__2021__ONSC_670 §5.2.4]) at para 93.</ref> In addition to individuals like Atas, [[Sandbox:Torts/Insurance|insurance]] coverage or vicarious may also mean that the wrongdoer isn't really bearing the full impact of their "punishment".<ref name=":0" /> <br />
<br />
==== Punishment for unintentional torts ====<br />
Another challenge for the punishment theory is that not all torts constitute morally reprehensible behaviour that is worthy of punishment. It is often understandable why intentional wrongdoing such as battery should be punished. But other areas of tort liability, such as the tort of negligence, provide redress for accidents that although harmful may not have been particularly morally blameworthy.<ref name=":0" /> The punishment theory of tort law also fails to account for the existence of [[Sandbox:Torts/Strict Liability|strict liability]] torts, as it does not explain why someone should be punished if they are not 'at fault'.<ref>{{Cite journal|last=Jaffey|first=Peter|date=2015|title=Book Review: Philosophical Foundations of the Law of Torts|url=https://link.springer.com/content/pdf/10.1007/s10982-015-9230-4.pdf|journal=Law and Philosophy|volume=34|pages=469-475|via=Springer}}</ref> <br />
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== References ==<br />
<references /></div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Template:Infobox_Torts&diff=899261Template:Infobox Torts2026-06-18T20:33:17Z<p>SamuelBeswick: </p>
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<div>{| class="infobox" width="250px"<br />
! colspan="2" style="background:#6fa8dc; width:200px; color: white; font-weight:normal; font-size:11pt; padding-top: 0.5em; padding-bottom: 0.5em;" | [[Documentation:Torts|'''TORT LAW''']]<br />
|-<br />
! colspan="2" style="background:#cfe2f3; font-weight:normal; width:200px; color: black; font-size:10pt;" | [https://canlii.ca/t/t9st '''CASEBOOK''']<br />
|-<br />
! colspan="2" style="background:#ffe599; font-weight:normal; width:200px; color: black; font-size:10pt;" | [[Documentation:Torts/Introduction|Introduction]]<br />
|-<br />
! colspan="2" style="background:#ffe599; font-weight:normal; width:200px; color: black; font-size:10pt;" | Dignitary Torts<br />
|-<br />
! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Documentation:Torts/Defamation|Defamation]] • [[Documentation:Torts/Discrimination|Discrimination]] • [[Documentation:Torts/Harassment|Harassment]] • [[Documentation:Torts/Intentional infliction of mental suffering|Intentional infliction of mental suffering]] • [[Documentation:Torts/Invasion of privacy|Invasion of privacy]] • [[Documentation:Torts/Trespass to the person|Trespass to the person]] <br />
|-<br />
! colspan="2" style="background:#ffe599; font-weight:normal; width:200px; color: black; font-size:10pt;" | Property Torts<br />
|-<br />
! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Documentation:Torts/Intentional interference with goods|Interference with goods]] • [[Documentation:Torts/Intentional interference with land|Interference with land]] • [[Documentation:Torts/Non-natural_use_of_land|Non-natural use of land]] • [[Documentation:Torts/Private nuisance|Private nuisance]] • [[Documentation:Torts/Public nuisance|Public nuisance]]<br />
|-<br />
! colspan="2" style="background:#ffe599; width:200px; font-weight:normal; font-size:10pt; color: black;" | [[Documentation:Torts/Negligence|Negligence Tort]]<br />
|-<br />
! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Documentation:Torts/Duty of care|Duty of care]] • [[Documentation:Torts/Breach of duty of care|Breach of duty]] • [[Documentation:Torts/Damage|Damage]] • [[Documentation:Torts/Causation_in_fact|Causation]] • [[Documentation:Torts/Remoteness_in_law|Remoteness]]<br />
| style="font-size:9pt;" |<br />
|-<br />
! colspan="2" style="background:#ffe599; width:200px; font-weight:normal; font-size:10pt; color: black;" | [[Documentation:Torts/Categories of Negligence|Negligence Categories]]<br />
|-<br />
! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Documentation:Torts/Negligence_Employment|Employment]] • [[Documentation:Torts/Negligence_Pollution|Environmental pollution]] • [[Documentation:Torts/Negligence_Products|Harmful products]] • [[Documentation:Torts/Negligence_Hosting|Hosting patrons and guests]] • [[Documentation:Torts/Negligence_Mental_injury|Infliction of mental injury]] • [[Documentation:Torts/Negligence_Misrepresentation|Misrepresentation]] • [[Documentation:Torts/Negligence_Occupiers|Occupation of premises]] • [[Documentation:Torts/Negligence_Services|Professional services]] • [[Documentation:Torts/Negligence_Public_authorities|Public authorities]] • [[Documentation:Torts/Negligence_Misrepresentation|Pure]] [[Documentation:Torts/Negligence_Shoddy_Goods_Structures|economic]] [[Documentation:Torts/Negligence_Relational_Economic_Loss|loss]] • [[Documentation:Torts/Negligence_Relational_Economic_Loss|Relational economic loss]] • [[Documentation:Torts/Negligence_Rescuers|Rescuers]] • [[Documentation:Torts/Negligence_Shoddy_Goods_Structures|Shoddy goods or structures]] • [[Documentation:Torts/Negligence_Institutional_abuse|Treatment of indigenous children]] • [[Documentation:Torts/Negligence_Unborn_children|Unborn children]] <br />
| style="font-size:9pt;" |<br />
|-<br />
! colspan="2" style="background:#ffe599; width:200px; font-weight:normal; font-size:10pt; color: black;" | Dishonesty & Abuse of Position Torts<br />
|-<br />
! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Documentation:Torts/Abuse_of_process|Abuse of process]] • [[Documentation:Torts/Breach_of_confidence|Breach of confidence]] • [[Documentation:Torts/Conspiracy|Conspiracy]] • [[Documentation:Torts/Fraud|Fraud]] • [[Documentation:Torts/Inducing_breach_of_contract|Inducing breach of contract]] • [[Documentation:Torts/Injurious_falsehood|Injurious falsehood]] • [[Documentation:Torts/Intimidation|Intimidation]] • [[Documentation:Torts/Malicious_prosecution|Malicious prosecution]] • [[Documentation:Torts/Misfeasance_in_public_office|Misfeasance in public office]] • [[Documentation:Torts/Passing_off|Passing off]] • [[Documentation:Torts/Spoliation|Spoliation]] • [[Documentation:Torts/Unlawful_means|Unlawful interference with economic interests]]<br />
| style="font-size:9pt;" |<br />
|-<br />
! colspan="2" style="background:#ffe599; width:200px; font-weight:normal; font-size:10pt; color: black;" | [[Documentation:Torts/Strict_liability|Strict Liability]]<br />
|-<br />
! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Documentation:Torts/Keeping_dangerous_animals|Keeping dangerous animals]] • [[Documentation:Torts/Non-natural_use_of_land|Non-natural use of land]] • [[Documentation:Torts/Ultrahazardous_activities|Ultrahazardous activities]] • [[Documentation:Torts/Vicarious_liability|Vicarious liability]]<br />
| style="font-size:9pt;" |<br />
|-<br />
! colspan="2" style="background:#ffe599; width:200px; font-weight:normal; font-size:10pt; color: black;" | [[Documentation:Torts/Defences|Defences]]<br />
|-<br />
! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Documentation:Torts/Apportionment of liability| Apportionment of liability]] • [[Documentation:Torts/Consent|Consent]] • [[Documentation:Torts/Defamation#Defences|Defamation defences]] • [[Documentation:Torts/Defence of property|Defence of property]] • [[Documentation:Torts/Denials|Denials]] • [[Documentation:Torts/Excuses|Excuses]] • [[Documentation:Torts/Illegality|Illegality]] • [[Documentation:Torts/Legal authority|Legal authority]] • [[Documentation:Torts/Limitation|Limitation]] • [[Documentation:Torts/Necessity|Necessity]] • [[Documentation:Torts/Self-defence|Self-defence]]<br />
| style="font-size:9pt;" |<br />
|-<br />
! colspan="2" style="background:#ffe599; width:200px; font-weight:normal; font-size:10pt; color: black;" | [[Documentation:Torts/Remedies|Remedies]]<br />
|-<br />
! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Documentation:Torts/Apologies|Apologies]] • [[Documentation:Torts/Damages|Damages]] • [[Documentation:Torts/Injunctions|Injunctions]] • [[Documentation:Torts/Insurance|Insurance]] • [[Documentation:Torts/Legal_costs|Legal costs]] • [[Documentation:Torts/Mitigation|Mitigation]] • [[Documentation:Torts/Intentional interference with chattels|Proprietary]]<br />
| style="font-size:9pt;" |<br />
|-<br />
! colspan="2" style="background:#ffe599; width:200px; font-weight:normal; font-size:10pt; color: black;" | Tort Law & Legal Systems<br />
|-<br />
! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Documentation:Torts/Charter_values|Charter values]] • [[Documentation:Torts/Class_actions|Class actions]] • [[Documentation:Torts/Concurrent actions|Concurrent actions]] • [[Documentation:Torts/Constitutional_torts|Constitutional torts]] • [[Documentation:Torts/Indigenous_dispute_resolution|Indigenous dispute resolution]] • [[Documentation:Torts/No-fault compensation schemes|No-fault compensation schemes]]<br />
| style="font-size:9pt;" |<br />
|-<br />
! colspan="2" style="background:#ffe599; width:200px; font-weight:normal; font-size:10pt; color: black;" | [[Documentation:Torts/Tort_theory|Tort Theory]]<br />
|-<br />
! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Documentation:Torts/Instrumental_theories|Instrumental theories]] • [[Documentation:Torts/Relational_theories|Relational theories]] • [[Documentation:Torts/Critical_theories|Critical theories]] • [[Documentation:Torts/Reflexive_theories|Reflexive theories]]<br />
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|-<br />
! colspan="2" style="background:#ffe599; width:200px; font-weight:normal; font-size:10pt; color: black;" | Study Resources<br />
|-<br />
! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Documentation:Torts/1L strategy|1L strategy]] • [[Documentation:Torts/Answer exercises|Answer exercises]] • [[Documentation:Torts/Quizzes|Quizzes]] • [https://blogs.ubc.ca/beswick/torts/ Beswick's course site] • [https://open-2021.sites.olt.ubc.ca/files/2025/03/2025-TLEF-Poster-SamuelBeswick.pdf Opening Up Tort Law Project]<br />
| style="font-size:9pt;" |<br />
|-<br />
! colspan="2" style="background:#cfe2f3; width:200px; font-weight:normal; font-size:10pt; color: black;" | [[Documentation:Torts/Index|Index]]<br />
|-<br />
! colspan="2" style="background:#ffe599; width:200px; font-weight:normal; font-size:10pt; color: black;" | [https://creativecommons.org/licenses/by-nc-sa/4.0/ https://i.creativecommons.org/l/by-nc-sa/4.0/80x15.png] <br />
|-<br />
|}<br />
<noinclude><br />
[[category:Infobox Templates]] <br />
</noinclude></div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Documentation:Torts/Relational_theories&diff=899258Documentation:Torts/Relational theories2026-06-18T20:30:00Z<p>SamuelBeswick: </p>
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<div>{{Infobox Torts}}<br />
<span style="font-size:200%;">{{SUBPAGENAME}}</span><br />
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Relational theories of tort tend to view tort law as "an expression of rights and duties regardless of the instrumental value of those rights and duties".<ref name=":222">{{Cite journal|last=Posner|first=Richard A.|date=Spring 2013|title=Instrumental and Noninstrumental Theories of Tort Law|url=https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=11057&context=ilj|journal=Indiana Law Journal|volume=88|issue=2|pages=469|via=Digital Repository at Maurer Law}}</ref> They seek to understand tort law from an internal point of view<ref>{{Cite web|last=Solum|first=Lawrence|date=2004|title=The Internal Point of View|url=https://lsolum.typepad.com/legal_theory_lexicon/2004/05/legal_theory_le.html|url-status=live|archive-url=|archive-date=|access-date=|website=Legal Theory Lexicon}}</ref>—that is, the view of tort law held by judges and lawyers operating within the legal system through which cases are adjudicated and doctrine is developed.<br />
<br />
Sophisticated theories have been developed that present tort law as unified by a grand principle, such as the principle of corrective justice, of rights-vindication, or of civil recourse, which explain the connection between plaintiff and defendant in a tort action. Theories such as those advanced by [https://en.wikipedia.org/wiki/Ernest_Weinrib Ernest Weinrib], [https://en.wikipedia.org/wiki/Jules_Coleman Jules Coleman], [https://www.law.utoronto.ca/faculty-staff/full-time-faculty/arthur-ripstein Arthur Ripstein], [https://hls.harvard.edu/faculty/john-c-goldberg/ John Goldberg] and [https://www.fordham.edu/school-of-law/faculty/directory/full-time/benjamin-c-zipursky/ Benjamin Zipursky], emerged partly as a response to [[Sandbox:Torts/Instrumental theories|instrumental theories]] of private law.<br />
<br />
[https://en.wikipedia.org/wiki/Jules_Coleman Jules Coleman] has illuminated how instrumental theories tend to treat the bilateral link between plaintiff-victim and defendant-injurer as "utterly mysterious," despite its fundamental importance to a tort suit (theories of compensation, deterrence, or punishment generally focus either on the defendant ''or'' the plaintiff).<ref name=":032">{{Cite book|title=Philosophy and the Law of Torts|last=Postema|first=Gerald|publisher=Cambridge University Press|year=2009|isbn=|location=Cambridge|pages=5-9}}</ref> Theorists who question the persuasiveness of economic analysis to explain the legal relationship between plaintiff and defendant have searched for a "more satisfying alternative".<ref name=":032" /> While their theories vary, what they have in common is an "interpretive" methodology for understanding tort law, which can be contrasted to the "functionalist" outlook of instrumental theories.<ref name=":032" /><br />
== Corrective justice ==<br />
{| class="wikitable" style="float:right;margin-left;10px;width:30%"<br />
! style="background-color:#CEE0F2" |Zoë Sinel on Corrective Justice<br />
|-<br />
|In this episode of the ''Private Law Podcast'' host Felipe Jimenez discuss with University of Western Law professor Zoë Sinel on corrective justice, tort law theory, and the influence of seminal thinkers Ernest Weinrib and John Gardner.{{#widget:Iframe|url=https://open.spotify.com/embed/episode/4rnzqwVt7yjObFyh1bxQ5D?utm_source=generator|width=100%|height=100|border=0}}<br />
|}The theory of corrective justice is concerned with restoring balance between the injurer and the victim of a tortious act. Corrective justice theorists [https://en.wikipedia.org/wiki/Jules_Coleman Jules Coleman], [https://www.law.utoronto.ca/faculty-staff/full-time-faculty/arthur-ripstein Arthur Ripstein], and [https://en.wikipedia.org/wiki/Ernest_Weinrib Ernest Weinrib] place emphasis on the "commutative" aspect of tort law, understood as some form of an exchange from individual A (defendant) to B (plaintiff).<ref name=":042">{{Cite book|title=Philosophy and the Law of Torts|last=Postema|first=Gerald|publisher=Cambridge University Press|year=2009|isbn=|location=Cambridge|pages=5-9}}</ref> The relational nature of tort law is expressed "in a normative regime of correlative right and duty."<ref>{{Cite book|title=Tort Theory|last=Weinrib|first=Ernest J.|publisher=Captus University Publications|year=1993|isbn=|editor-last=Cooper-Stephenson|editor-first=Ken|location=|pages=12|chapter=Formalism and its Canadian Critics|editor-last2=Gibson|editor-first2=Elaine}}</ref> <br />
<br />
[https://en.wikipedia.org/wiki/Ernest_Weinrib Ernest Weinrib] characterizes corrective justice as "bipolar," in that connects the "entitlement of one party to the liability of the other." <ref name=":153">{{Cite book|title=Corrective Justice|last=Weinrib|first=Ernest J.|publisher=Oxford University Press|year=1991|isbn=|location=Oxford|pages=7, 18-19}}</ref> The relationship between these two parties arises from "harm that one of them inflicts on the other," connecting the harms done and harm suffered to illuminate the correlative aspects of a single event.<ref name=":822">{{Cite book|title=Tort Theory|last=Gibson|first=Elaine|publisher=Captus University Publications|year=1993|isbn=0921801874|location=North York|pages=10, 26}}</ref> [https://en.wikipedia.org/wiki/Ernest_Weinrib Weinrib] argues that the instrumental theories of private law (compensation, deterrence and punishment) are "incompatible" with this relationship since they "interrupt the direct relationship of doer and sufferer".<ref name=":322">{{Cite book|title=Tort Theory|last=Weinrib|first=Ernest J.|publisher=Captus University Publications|year=1993|isbn=|editor-last=Cooper-Stephenson|editor-first=Ken|location=|pages=11|chapter=Formalism and its Canadian Critics|editor-last2=Gibson|editor-first2=Elaine}}</ref> Corrective justice theory poses a challenge to any "hegemony of economic theory" of tort law, providing rich theoretical approaches to the complex relationship between parties involved in a tortious act.<ref name=":042" /><br />
{| class="wikitable" style="width: 65%"<br />
! style="background-color:#F2E0CE" |''Atlantic Lottery Corp. Inc. v. Babstock'', 2020 SCC 19<ref name=":232">''Atlantic Lottery Corp. Inc. v. Babstock'', 2020 SCC 19 ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#9_7_1__Atlantic_Lottery_Corp__Inc__v__Babstock__2020__SCC_19 §15.1.1]) at para 34.</ref><br />
|-<br />
|In ''Atlantic Lottery Corp. Inc. v. Babstock'', Justice Brown for the Supreme Court averred, citing Weinrib, that "corrective justice, the basis for recovery in tort, demands ... an explanation as to why the plaintiff is the party entitled to a remedy .... Tort law does not treat plaintiffs “merely as a convenient conduit of social consequences” but rather as “someone to whom damages are owed to correct the wrong suffered” ...."<ref name=":232" /><br />
|}<br />
==== Primary and secondary duties ====<br />
Corrective justice theory understands the structure of tort law in terms of primary and secondary duties.<ref name=":522">{{Cite journal|last=Sheinman|first=Hanoch|date=2003|title=Tort Law and Corrective Justice|url=|journal=Law and Philosophy|volume=22|pages=30|via=}}</ref> First order duties prohibit or require certain conduct.<ref name=":522" /> For example, certain intentional torts such assault, battery and defamation are concerned with how certain behaviours are prohibited. The tort of negligence recognises obligations to act or not act in a certain way. Second order duties are "duties of repair" that arise upon the breach of a first order duty.<ref name=":732">{{Cite journal|last=Loth|first=Marc|date=2015|title=Corrective and Distributive Justice in Tort Law|url=|journal=SAGE Publications|volume=22|pages=795|via=}}</ref> The relationship between first and second order duties is that an individual or entity has a duty to "repair" or address the wrongful loss arising from their breach of a first order duty. In this way, the corrective justice theory accounts for one of the core aspects of tort law, which is the legal connection which exists between a wrongdoer and their victim. It explains why tort law is "a law of wrongs".<ref>{{Cite web|last=Coleman, J., Hershovitz S., Mendlow G.|first=|date=17 Dec 2015|title=Theories of the Common Law of Torts|url=https://plato.stanford.edu/archives/spr2022/entries/tort-theories/|url-status=live|archive-url=|archive-date=|access-date=|website=Stanford Encyclopedia of Philosophy Archive}}</ref><br />
<br />
==== Corrective justice versus distributive justice ====<br />
The distinction between corrective and distributive justice dates back to [https://en.wikipedia.org/wiki/Aristotle Aristotle]'s theories of justice.<ref>{{Cite journal|last=Wells|first=Catharine Pierce|date=1990|title=Tort Law as Corrective Justice: A Pragmatic Justification for Jury Adjudication|url=|journal=Michigan Law Review|volume=88|pages=2350|via=}}</ref> Both forms of justice "presuppose the Aristotelian idea of normative equilibrium".<ref>{{Cite journal|last=Zipursky|first=Benjamic|date=2003|title=Civil Recourse, Not Corrective Justice|url=|journal=The Georgetown law journal|volume=91|pages=1|via=}}</ref> While corrective justice places focus on the relationship between two individuals connected by the "voluntary or involuntary transaction" (tort), [https://plato.stanford.edu/entries/justice-distributive/ distributive justice] emphasizes the larger group or political community and the distribution of goods and legal burdens.<ref>{{Cite journal|last=Loth|first=Marc|date=2015|title=Corrective and Distributive Justice in Tort Law|url=|journal=SAGE Publications|volume=22|pages=793|via=}}</ref> Weinrib distinguishes corrective justice from the theory of distributive justice. On his account, distributive justice does not relate to two parties "directly," but arises instead "through the medium of a distributive scheme" that operates in society outside of the tort system.<ref name=":172">{{Cite book|title=Corrective Justice|last=Weinrib|first=Ernest J.|publisher=Oxford University Press|year=1991|isbn=|location=Oxford|pages=7, 18-19}}</ref> Distributive justice does not operate as a bipolar relationship, since distributive decision-making implicates "any number of parties".<ref>{{Cite book|title=Tort Theory|last=Weinrib|first=Ernest J.|publisher=Captus University Publications|year=1993|isbn=|editor-last=Cooper-Stephenson|editor-first=Ken|location=|pages=10|chapter=Formalism and its Canadian Critics|editor-last2=Gibson|editor-first2=Elaine}}</ref> <br />
=== Critiques of corrective justice theory ===<br />
==== Limits of injustice correction ====<br />
Corrective justice theory is criticised by some as overly formalist and too narrowly focused on the bilateral plaintiff-defendant relationship. [http://kencooperst.com/ Ken-Cooper Stephenson] contends that Weinrib's corrective justice theory "misunderstands much of tort law's actual social context" and "fails to accommodate tort law's legal, political, and social context".<ref>{{Cite book|title=Tort Theory|last=Cooper-Stephenson|first=Ken|publisher=Captus University Publications|year=1993|isbn=|editor-last=Cooper-Stephenson|editor-first=Ken|location=|pages=48|chapter=Corrective Justice, Substantive Equality and Tort Law|editor-last2=Gibson|editor-first2=Elaine}}</ref> <br />
{| class="wikitable" style="width: 100%"<br />
! style="background-color:#F2E0CE" |''Brown v. Canada'' <ref name=":1">''Brown v. Canada'' [2018] ONSC 3429 ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#12_4_1_Brown_v__Canada__2018__ONSC_3429 §12.4.1]).</ref> <br />
|-<br />
|Criticisms of corrective justice theory have arisen in the context of [https://en.wikipedia.org/wiki/Canadian_Indian_residential_school_system residential school] survivor litigation. [https://en.wikipedia.org/wiki/Kent_Roach Kent Roach] has questioned whether "the survivors" in this tort litigation "would have been better off had they avoided engagement with Canadian law."<ref>{{Cite journal|last=Roach|first=Kent|date=2014|title=Blaming the Victim: Canadian Law, Causation, and Residential Schools|url=https://utpjournals.press/doi/10.3138/utlj.2419|journal=University of Toronto Law Journal|volume=64|pages=566|via=}}</ref> The concern is that any legal remedies or settlements reached in practice are devoid of "correction" between survivors and the state in wake of intergenerational impacts of residential schools.<ref name=":1" /> Since no amount of money can account for the willful infliction of emotional distress, corrective justice theory may be ill-equipped to explain tort law's interaction with complex systemic realities such as colonial abuses.<br />
|}<br />
==== Dependence on distributive justice? ====<br />
While Weinrib argues that tort law exemplifies only corrective justice, others consider that the tort system necessarily relies on a "co-dependency" with distributive justice.<ref name=":422">{{Cite book|title=Tort Theory|last=Cooper-Stephenson|first=Ken|publisher=Captus University Publications|year=1993|isbn=|editor-last=Cooper-Stephenson|editor-first=Ken|location=|pages=49|chapter=Corrective Justice, Substantive Equality and Tort Law|editor-last2=Gibson|editor-first2=Elaine}}</ref> [https://ee.linkedin.com/in/heleneenmaa Helen Eenmaa-Dimitrieva] explains the intersections of corrective and distributive justice, presenting arguments that tort law has both distributive and corrective elements.<ref>{{Cite journal|last=Eenmaa-Dimitrieva|first=Helen|date=2019|title=The Problem of Dependency of Corrective Justice: Corrective Entitlements and Private Transactions|url=|journal=The Canadian Journal of Law and Jurisprudence|volume=32|pages=|via=}}</ref> Ken Cooper-Stephenson asserts that "both corrective and distributive" elements are present in tort law.<ref name=":422" /> For Cooper-Stephenson, tort law is "one component of a distributive scheme".<ref name=":422" /> That is to say, tort law's corrective justice features must be viewed within the larger societal scheme of rights and obligations which organize benefits and burdens across society.<br />
== Civil recourse ==<br />
[[File:Zgc1993-Fk9RSVdJ6Q8-unsplash.jpg|left|thumb|For Goldberg and Zipursky, tort law is a "gallery of wrongs".<ref name=":622">{{Cite book|title=Philosophical Foundations of The Law of Torts|last=Goldberg|first=John C.P.|last2=Zipursky|first2=Benjamin C.|publisher=Oxford University Press|year=2014|isbn=|editor-last=Oberdiek|editor-first=John|location=|pages=17|chapter=Tort Law and Responsibility}}</ref>|240x240px]]Civil recourse theory presents tort law as a system that empowers individuals to obtain recourse through the courts from those who wrong them. This theory has been most prominently developed by [https://hls.harvard.edu/faculty/john-c-goldberg/ John Goldberg] and [https://en.wikipedia.org/wiki/Benjamin_Zipursky Benjamin Zipursky], who argue that tort law is "a law of responsibility" that opeates to allow the tortfeasor to be "held responsible or accountable to the victim".<ref name=":622" /> Drawing upon [https://en.wikipedia.org/wiki/John_Locke John Locke]'s theory of the [https://en.wikipedia.org/wiki/Social_contract social contract], they present the tort system as a foundational societal institution that supplants individuals' claims to self-help.<ref name=":1222" /> This idea is summarized by Zipursky:<blockquote>"[b]y recognizing a legal right of action against a tortfeasor, our system respects the principle that the plaintiff is entitled to act against one who has legally wronged him or her. I call this the principle of civil recourse. The legal principle that the victim of a tort has a right of action against the tortfeasor is an instance of this more general idea."<ref name=":1222">{{Cite journal|last=Zipursky|first=Benjamin|date=2003|title=Civil recourse, not corrective justice.|url=https://heinonline.org/HOL/Page?collection=journals&handle=hein.journals/glj91&id=749&men_tab=srchresults|journal=The Georgetown law journal|volume=91|pages=735, 737|via=}}</ref></blockquote>Alike to corrective justice, civil recourse highlights the normative rights and duties at play in the tort law system.<ref>{{Cite journal|last=Gold|first=Andrew|date=2011|title=The taxonomy of civil recourse|url=|journal=Florida State University law review|volume=39|pages=66|via=}}</ref> However, unlike corrective justice, civil recourse contends that breach of a (primary) duty provides plaintiffs with a (secondary) "right of action" to seek legal redress from the wrongdoer through the courts.<ref>{{Cite journal|last=Goldberg, John & Benjamin Zipursky|first=|date=2013|title=Civil Recourse Defended: A Reply to Posner, Calabresi, Rustard, Chamallas, and Robinette”|url=|journal=Indiana Law Journal|volume=88|pages=575-576|via=}}</ref> This is not exactly a legal right to "demand payments and remedies from those who have wronged them," as corrective justice would have it.<ref>{{Cite journal|last=Zipuesky|first=Benjamin|date=2014|title=Civil recourse and the plurality of wrongs : why torts are different.|url=|journal=New Zealand Law Journal|volume=|pages=146|via=}}</ref> Rather, it is a legal power that a plaintiff may choose to exercise (or not) to bring a claim against the defendant and have it heard and adjudicated by an impartial court. <br />
{| class="wikitable" style="float:right;margin-left;10px;width:30%"<br />
|-<br />
! style="background-color:#CEE0F2" |Podcast: John Goldberg and Ben Zipursky on Recognizing Wrongs<ref>Private Law Podcast, [https://podcasts.google.com/feed/aHR0cHM6Ly9hbmNob3IuZm0vcy80ZWEzMzYzYy9wb2RjYXN0L3Jzcw/episode/ZGRhZDMxOWUtODJlMi00ZjlmLTliZTEtMDc5ZDk2YzliZGI4?sa=X&ved=0CAUQkfYCahcKEwjolPHCvNLxAhUAAAAAHQAAAAAQBw "John Goldberg and Ben Zipursky on Recognizing Wrongs"] (23 Mar 2021) ''Google Podcasts.''</ref><br />
|-<br />
| {{#widget:Iframe|url=https://open.spotify.com/embed/episode/6U8xXR8Wo53rA0TsM8uXOe?utm_source=generator|width=100%|height=100|border=0}}In this episode of the ''Private Law Podcast'' host Felipe Jimenez discuss with prominent constructivist theorists John Goldberg and Benjamin Zipursky about their book ''Recognizing Wrongs.'' <br />
|-<br />
! style="background-color:#CEE0F2" |Book Talk: John Goldberg and Ben Zipursky on Civil Recourse Theory<ref>Harvard Law School, [https://www.youtube.com/watch?v=1Q-qdMPGD0s "HLS Library Book Talk | Recognizing Wrongs"] (27 Feb 2020) ''Youtube''.</ref><br />
|-<br />
|{{YouTube|id=1Q-qdMPGD0s|width=100%|height=300}}<br />
At an event at Harvard Law School in 2020, Professors John Goldberg and Ben Zipursky discussed their book with fellow panelists.<br />
|}<br />
=== Critiques of civil recourse theory ===<br />
==== Explanatory power in tort law ====<br />
Legal economist and judge [https://en.wikipedia.org/wiki/Richard_Posner Richard Posner] has been strong critics of civil recourse theory, contending that it provides no guidance for courts making legal decisions.<ref name=":1322">{{Cite journal|last=Posner|first=Richard|date=2013|title=Instrumental and Non-instrumental Theories of Tort Law|url=|journal=Indiana Law Journal|volume=88|pages=471-472|via=}}</ref> Posner argues that civil recourse theorists' idea of a "right of action" is a feature of every [https://en.wikipedia.org/wiki/Private_law#:~:text=Private%20law%20is%20that%20part,called%20in%20civil%20legal%20systems). private law] relationship and not something unique to our understanding of tort law.<ref name=":1322" /> Additional critiques suggest that civil recourse is simply a subcomponent of corrective justice, which simply explains civil procedure.<ref name=":1322" /><br />
==== Emphasis on wrongdoing ====<br />
Another critique of civil recourse theory is that it is simply a theory of state-sanctioned revenge, a variation on instrumentalist theories of punishment. Yet, this is an interpretation that Goldberg and Zipursky are "keen to distance themselves from".<ref>{{Cite journal|last=Hershovitz|first=Scott|date=2011|title=Corrective Justice for Civil Recourse Theorists|url=|journal=Florida State University Law Review|volume=39|pages=122|via=}}</ref><br />
<br />
Despite attempts to distance civil recourse from revenge, Goldberg and Zipursky's focus on "wrongdoing" may seem strained in certain scenarios.<ref>{{Cite journal|last=Stone|first=Rebecca|date=2023|title=Private Liability Without Wrongdoing|url=|journal=University of Toronto Law Journal|volume=73|pages=60|via=}}</ref> [https://www.brooklaw.edu/Contact-Us/Gold-Andrew Andrew Gold] notes that the application of civil recourse can be "odd" as "some defendants are good faith actors who exercised due care".<ref name=":1422">{{Cite book|title=The Right of Redress|last=Gold|first=Andrew|publisher=Oxford University Press|year=2020|isbn=|location=Oxford|pages=113}}</ref> Gold adds that some plaintiffs also may be much more concerned with obtaining a remedy instead of holding the defendant responsible for their act.<ref name=":1422" /> This is especially demonstrated in strict liability or negligence cases where defendants' culpability tends to be less prominent than in intentional tort cases.<br />
== Rights vindication ==<br />
For some theorists the vindication of rights is accepted as the primary justification of tort law.<ref name=":1022">{{Cite journal|last=Varuhas|first=Jason|date=2014|title=The Concept of ‘Vindication’ in the Law<br />
of Torts: Rights, Interests and Damages|url=|journal=Oxford Journal of Legal Studies|volume=34|pages=253-7|via=}}</ref> Theories of rights vindication are distinct from corrective justice as they highlight the infringement of rights rather than an imposition of loss. Rights vindication can be viewed in two ways: one is that generally the "law affirms the existence of the right through recognition of an action for breach," and two that specifically tort law aims to "reinforce the inherent value of a particular interest".<ref>{{Cite journal|last=Varuhas|first=Jason|date=2014|title=The Concept of ‘Vindication’ in the Law of Torts: Rights, Interests and Damages|url=https://watermark.silverchair.com/gqt036.pdf?token=AQECAHi208BE49Ooan9kkhW_Ercy7Dm3ZL_9Cf3qfKAc485ysgAAA1gwggNUBgkqhkiG9w0BBwagggNFMIIDQQIBADCCAzoGCSqGSIb3DQEHATAeBglghkgBZQMEAS4wEQQMCX76Qrd7a1rdPUK_AgEQgIIDCxIfzCUdRBnbri8H1fTB68MNd6pUUYHzLCW9RxS00KlDkTtBpQvtzFVfdYsOzUN0mR4A-9Q0nKqa2i-lZ1jODr-122-y-bCSIHsA-65EBbmTyBpfhjSXqTQ1H9P53rqi1gHK4GqkgW-rZ891ZQPqjgK60e4RaYwxA1MCgPGppYn4xq9c-Ed7NWQyLmnem2cm6cQCoGAkeEtsrWoehYmKjugArSIkPg4g-DgD_Yd41pa3U0TrpmB_lMR_RNlygcuQatEDaoyqNT0kKt9Yy0qVJ-rlcZGdqYRcRnGKOTU_rPPgL0AhhAykd34U9zWQNj3CPrmpK9IxoJweNCu1lLUJ_ydvT_kdvG5rLKoh3ubIBn1JjvqgQwy17FAKRO234GF69vXNzUI39C1ir7NbPX2QApHe3Oh3sQ6CGAzWY_KO807sTjXXUJUX3FLkqnIk2kNPqawz1UbJer6Ze7DpbBeFt5oVtSyb6t7of7bqyOmLchPfkUTo-P52xIhQKTEqqIF_sNnB0LW_NrxFaOLqSencQaagNbbFimrAVbt_QY4FQoFtLg6hJ9xiTVeKqBB-kx80KF-gpy6UnEtnoa_n_P2Hl3b38XNUxEegTcbP2FrgdD4R-P1fySZnUm0H-uyV90C26OVQBFEE3kmPJNFJX6cN6LRehvIllZMg64U56apdMkXd7u3U3CU2iwUWpkaEB7XSHYHbL5YJ2Jepui6PsZbc19v6uzV1PUPSYwz054l-IsW99JGSVZzcR46TRsrqx-7rNUwExrpdl2je5sEixdlvj90etaiKB5dBSY5hd66rrArgTi-QdZJa2VbDzqBHQA9v0-SYLL0JXhqxg_S2dgiYUjVl5C0qsbjEfKE8CybgqQHpER0qDiyvsFJeEuKlhwQY0J_UgHsv_68p1eBmvxZcWDDdSIwcOVaGdTekHGyDkXB0Q80VwmrtHDeirBTU9o-eWoy42i46PX6bC7-qnw3E8glqyFsO7x1z2nLtHVAf5IjtGM64maE2bpkNjqtp9FW2V-w1jPP1gK8AJL7p|journal=Oxford Journal of Legal Studies|volume=34|pages=258|via=}}</ref> As stated by professor Arthur Ripstein, "[a] right that can be knowingly violated with impunity is no right at all."<ref>{{Cite book|title=Equality, Responsibility, and the Law|last=Ripstein|first=Arthur|publisher=Cambridge University Press|year=1998|isbn=|location=Cambridge;New York|pages=158}}</ref><br />
<br />
[https://www.law.ox.ac.uk/people/robert-stevens Robert Stevens] characterizes a tort as a "species of wrong", where a wrong "is a breach of a duty owed to someone else" and a breach of this duty is "an infringement of a right" held by the victim.<ref name=":1122">{{Cite book|url=https://doi.org/10.1093/acprof:oso/9780199211609.003.0001|title=Torts and Rights|last=Stevens|first=Robert|publisher=Oxford University Press|year=2009|isbn=|location=|pages=2|chapter=Introduction}}</ref> Stevens' "rights model" of tort law too recognises primary and secondary obligations in private law relationships: "a wrong is the infringement of a primary right which generates a secondary right". For Stevens, the secondary obligation arises from the defendant's "infringement of primary rights", rather than from the "infliction of loss" (as characterised by corrective justice theory).<ref name=":1122" /> In tort this secondary right is typically "a liability to pay [[Sandbox:Torts/Damages|compensation]]".<ref>{{Cite book|url=https://doi.org/10.1093/acprof:oso/9780199211609.003.0001|title=Torts and Rights|last=Stevens|first=Robert|publisher=Oxford University Press|year=2009|isbn=|location=|pages=287|chapter=Classification}}</ref><br />
{| class="wikitable" style="width: 100%"<br />
! style="background-color:#F2E0CE" |''Rees v. Darlington Hospital''<ref name=":05">''Rees v Darlington Memorial Hospital NHS Trust'' [https://publications.parliament.uk/pa/ld200203/ldjudgmt/jd031016/darl-1.htm <nowiki>[2003] UKHL 52</nowiki>].</ref><br />
|-<br />
|[https://www.tcd.ie/law/people/mulliga3 Andrea Mulligan] illuminates the potential effectiveness of rights vindication theory in understanding tort litigation regarding negligence and reproductive rights.<ref name=":2">{{Cite journal|last=Mulligan|first=Andrea|date=2020|title=A vindicatory approach to tortious liability for mistakes<br />
in assisted human reproduction|url=|journal=Legal Studies|volume=40|pages=55|via=}}</ref> While many cases of assisted human reproduction proceed under public law, [[Sandbox:Torts/Negligence Unborn children|negligence claims]] have also been taken as an avenue for vindicating rights-infringements arising from mistakes made in the course of [https://en.wikipedia.org/wiki/Assisted_reproductive_technology#:~:text=Assisted%20reproductive%20technology%20(ART)%20includes,the%20use%20of%20fertility%20medication. fertility treatments]. For Mulligan, the case ''Rees v. Darlington Hospital'' is illustrative.<ref name=":2" /> After the plaintiff Rees sought to not have children due to her disability and had undertaken medical care for sterilization she became pregnant. She sought compensation for the cost of having to raise a child.<ref name=":05" /> While the Court did not agree that Rees had suffered a compensable loss in the traditional sense, it awarded $15,000 in damages to recognise that the plaintiff had "suffered a legal wrong".<ref>''Rees v Darlington Memorial Hospital NHS Trust'' [https://publications.parliament.uk/pa/ld200203/ldjudgmt/jd031016/darl-1.htm <nowiki>[2003] UKHL 52</nowiki>]at para 17.</ref><br />
|}<br />
=== Critiques of rights vindication theory ===<br />
==== Distinguishing moral rights from interests ====<br />
{| class="wikitable" style="float:right;margin-left;10px;width:30%"<br />
! style="background-color:#CEE0F2" |Andrew Gold on The Right of Redress<ref>Private Law Podcast, "[https://podcasts.google.com/feed/aHR0cHM6Ly9hbmNob3IuZm0vcy80ZWEzMzYzYy9wb2RjYXN0L3Jzcw/episode/YjQyODY1YWYtYzhmZi00OTFlLWEyNDQtZjM2OWI4YzU2MGJi?sa=X&ved=0CAUQkfYCahcKEwigxJKgpYeBAxUAAAAAHQAAAAAQCg Andrew Gold on The Right of Redress]" (5 Apr 2021)</ref><br />
|-<br />
|In this episode of the ''Private Law Podcast'' host Felipe Jimenez discusses with Andrew Gold, professor of law at Brooklyn Law School, his new book ''The Right of Redress''.<br />
{{#widget:Iframe|url=https://open.spotify.com/embed/episode/6vup7TsbCk7INOsDoETIXd?utm_source=generator|width=100%|height=100|border=0}}<br />
|}A major focus of critique of [https://www.law.ox.ac.uk/people/robert-stevens Stevens]' theory on rights vindication is his classification of rights. Stevens contends that "[r]ational people can recognize rights independently of their being given the force of law’".<ref>{{Cite book|title=Torts and Rights|last=Stevns|first=Robert|publisher=Oxford University Press|year=2007|isbn=|location=|pages=330}}</ref> For many, this conception of a right resembles moral rights which rely on "basic aspects of human well-being or flourishing, such as liberty and physical integrity".<ref name=":1032">{{Cite journal|last=Varuhas|first=Jason|date=2014|title=The Concept of ‘Vindication’ in the Law<br />
of Torts: Rights, Interests and Damages|url=|journal=Oxford Journal of Legal Studies|volume=34|pages=253-7|via=}}</ref> Such rights may be viewed to have value prior to the law and are thus "pre-political".<ref name=":022">{{Cite journal|last=Priel|first=Dan|date=2011|title=That Can't Be Rights (Review of Robert Stevens's 'Torts and Rights')|url=https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1886511|journal=Juriprudence|volume=2|pages=235|via=}}</ref> Stevens refuses to extend rights to some interests that courts in some jurisdictions do recognise as attracting rights, such as pure economic loss, and instead states that an injury in tort law is only recoverable if it involves a breach of primary rights. Stevens leaves it up to the Courts to determine the scope of these primary rights upon policy grounds.<ref>{{Cite book|title=Torts and Rights|last=Stevens|first=Robert|publisher=Oxford University Press|year=2007|isbn=|location=Oxford|pages=33-7}}</ref> Scholars such as [https://www.christs.cam.ac.uk/college/people/fellows/professor-peter-cane Peter Cane]<ref name=":162">{{Cite journal|last=Cane|first=Peter|date=2008|title=Torts and Rights by Robert Stevens|url=|journal=Modern Law Review|volume=71|pages=641-647|via=}}</ref> and [https://www.osgoode.yorku.ca/faculty-and-staff/priel-dan/ Dan Priel]<ref name=":022" /> point to weaknesses in Stevens' reliance on Courts to apply the concept of moral/primary rights. In particular, Cane questions the practicality of legal reasoning being reduced to an exercise of right protection despite the realities of subjective elements of the common law.<ref name=":162" /><br />
==== Valuing rights ====<br />
In response to Robert Stevens' theory of rights, [https://www.google.com/search?q=jason+varuhas&rlz=1C5CHFA_enCA1014CA1014&oq=Jason+Varuhas&aqs=chrome.0.0i355i512j46i512.406j0j4&sourceid=chrome&ie=UTF-8 Jason Varuhas] has argued that it is is difficult to make out what would be needed to "be able to value a right" to provide an appropriate award of damages.<ref name=":1522">{{Cite journal|last=Varuhas|first=Jason|date=2014|title=The Concept of 'Vindication' in the Law of Torts: Rights, Interests and Damages|url=|journal=Oxford Journal of Legal Studies|volume=34|pages=271|via=}}</ref> Varuhas adds that since rights are understood to be a norm, calculation of the value of infringement can be arbitrary and artificial, which tends to undermine consistency in the practice of law.<ref name=":1522" /> <br />
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== References ==<br />
<references /></div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Documentation:Torts/Constructive_theories&diff=899257Documentation:Torts/Constructive theories2026-06-18T20:27:31Z<p>SamuelBeswick: SamuelBeswick moved page Documentation:Torts/Constructive theories to Documentation:Torts/Relational theories</p>
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<div>#REDIRECT [[Documentation:Torts/Relational theories]]</div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Documentation:Torts/Relational_theories&diff=899256Documentation:Torts/Relational theories2026-06-18T20:27:30Z<p>SamuelBeswick: SamuelBeswick moved page Documentation:Torts/Constructive theories to Documentation:Torts/Relational theories</p>
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<div>{{Infobox Torts}}<br />
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Theories that try to present tort law as a coherent construct approach the subject not in terms of what tort law ''does'' but what tort law purports to ''be'' on its own terms. Such perspectives tend to view tort law as "an expression of rights and duties regardless of the instrumental value of those rights and duties".<ref name=":222">{{Cite journal|last=Posner|first=Richard A.|date=Spring 2013|title=Instrumental and Noninstrumental Theories of Tort Law|url=https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=11057&context=ilj|journal=Indiana Law Journal|volume=88|issue=2|pages=469|via=Digital Repository at Maurer Law}}</ref> They seek to understand tort law from an internal point of view<ref>{{Cite web|last=Solum|first=Lawrence|date=2004|title=The Internal Point of View|url=https://lsolum.typepad.com/legal_theory_lexicon/2004/05/legal_theory_le.html|url-status=live|archive-url=|archive-date=|access-date=|website=Legal Theory Lexicon}}</ref>—that is, the view of tort law held by judges and lawyers operating within the legal system through which cases are adjudicated and doctrine is developed.<br />
<br />
Sophisticated theories have been developed that present tort law as unified by a grand principle, such as the principle of corrective justice, of rights-vindication, or of civil recourse. Theories such as those advanced by [https://en.wikipedia.org/wiki/Ernest_Weinrib Ernest Weinrib], [https://en.wikipedia.org/wiki/Jules_Coleman Jules Coleman], [https://www.law.utoronto.ca/faculty-staff/full-time-faculty/arthur-ripstein Arthur Ripstein], [https://hls.harvard.edu/faculty/john-c-goldberg/ John Goldberg] and [https://www.fordham.edu/school-of-law/faculty/directory/full-time/benjamin-c-zipursky/ Benjamin Zipursky], emerged partly as a response to [[Sandbox:Torts/Instrumental theories|instrumental theories]] of private law.<br />
<br />
[https://en.wikipedia.org/wiki/Jules_Coleman Jules Coleman] has illuminated how instrumental theories tend to treat the bilateral link between plaintiff-victim and defendant-injurer as "utterly mysterious," despite its fundamental importance to a tort suit (theories of compensation, deterrence, or punishment generally focus either on the defendant ''or'' the plaintiff).<ref name=":032">{{Cite book|title=Philosophy and the Law of Torts|last=Postema|first=Gerald|publisher=Cambridge University Press|year=2009|isbn=|location=Cambridge|pages=5-9}}</ref> Theorists who question the persuasiveness of economic analysis to explain the legal relationship between plaintiff and defendant have searched for a "more satisfying alternative".<ref name=":032" /> While their theories vary, what they have in common is an "interpretive" methodology for understanding tort law, which can be contrasted to the "functionalist" outlook of instrumental theories.<ref name=":032" /><br />
== Corrective justice ==<br />
{| class="wikitable" style="float:right;margin-left;10px;width:30%"<br />
! style="background-color:#CEE0F2" |Zoë Sinel on Corrective Justice<br />
|-<br />
|In this episode of the ''Private Law Podcast'' host Felipe Jimenez discuss with University of Western Law professor Zoë Sinel on corrective justice, tort law theory, and the influence of seminal thinkers Ernest Weinrib and John Gardner.{{#widget:Iframe|url=https://open.spotify.com/embed/episode/4rnzqwVt7yjObFyh1bxQ5D?utm_source=generator|width=100%|height=100|border=0}}<br />
|}The theory of corrective justice is concerned with restoring balance between the injurer and the victim of a tortious act. Corrective justice theorists [https://en.wikipedia.org/wiki/Jules_Coleman Jules Coleman], [https://www.law.utoronto.ca/faculty-staff/full-time-faculty/arthur-ripstein Arthur Ripstein], and [https://en.wikipedia.org/wiki/Ernest_Weinrib Ernest Weinrib] place emphasis on the "commutative" aspect of tort law, understood as some form of an exchange from individual A (defendant) to B (plaintiff).<ref name=":042">{{Cite book|title=Philosophy and the Law of Torts|last=Postema|first=Gerald|publisher=Cambridge University Press|year=2009|isbn=|location=Cambridge|pages=5-9}}</ref> The relational nature of tort law is expressed "in a normative regime of correlative right and duty."<ref>{{Cite book|title=Tort Theory|last=Weinrib|first=Ernest J.|publisher=Captus University Publications|year=1993|isbn=|editor-last=Cooper-Stephenson|editor-first=Ken|location=|pages=12|chapter=Formalism and its Canadian Critics|editor-last2=Gibson|editor-first2=Elaine}}</ref> <br />
<br />
[https://en.wikipedia.org/wiki/Ernest_Weinrib Ernest Weinrib] characterizes corrective justice as "bipolar," in that connects the "entitlement of one party to the liability of the other." <ref name=":153">{{Cite book|title=Corrective Justice|last=Weinrib|first=Ernest J.|publisher=Oxford University Press|year=1991|isbn=|location=Oxford|pages=7, 18-19}}</ref> The relationship between these two parties arises from "harm that one of them inflicts on the other," connecting the harms done and harm suffered to illuminate the correlative aspects of a single event.<ref name=":822">{{Cite book|title=Tort Theory|last=Gibson|first=Elaine|publisher=Captus University Publications|year=1993|isbn=0921801874|location=North York|pages=10, 26}}</ref> [https://en.wikipedia.org/wiki/Ernest_Weinrib Weinrib] argues that the instrumental theories of private law (compensation, deterrence and punishment) are "incompatible" with this relationship since they "interrupt the direct relationship of doer and sufferer".<ref name=":322">{{Cite book|title=Tort Theory|last=Weinrib|first=Ernest J.|publisher=Captus University Publications|year=1993|isbn=|editor-last=Cooper-Stephenson|editor-first=Ken|location=|pages=11|chapter=Formalism and its Canadian Critics|editor-last2=Gibson|editor-first2=Elaine}}</ref> Corrective justice theory poses a challenge to any "hegemony of economic theory" of tort law, providing rich theoretical approaches to the complex relationship between parties involved in a tortious act.<ref name=":042" /><br />
{| class="wikitable" style="width: 65%"<br />
! style="background-color:#F2E0CE" |''Atlantic Lottery Corp. Inc. v. Babstock'', 2020 SCC 19<ref name=":232">''Atlantic Lottery Corp. Inc. v. Babstock'', 2020 SCC 19 ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#9_7_1__Atlantic_Lottery_Corp__Inc__v__Babstock__2020__SCC_19 §15.1.1]) at para 34.</ref><br />
|-<br />
|In ''Atlantic Lottery Corp. Inc. v. Babstock'', Justice Brown for the Supreme Court averred, citing Weinrib, that "corrective justice, the basis for recovery in tort, demands ... an explanation as to why the plaintiff is the party entitled to a remedy .... Tort law does not treat plaintiffs “merely as a convenient conduit of social consequences” but rather as “someone to whom damages are owed to correct the wrong suffered” ...."<ref name=":232" /><br />
|}<br />
==== Primary and secondary duties ====<br />
Corrective justice theory understands the structure of tort law in terms of primary and secondary duties.<ref name=":522">{{Cite journal|last=Sheinman|first=Hanoch|date=2003|title=Tort Law and Corrective Justice|url=|journal=Law and Philosophy|volume=22|pages=30|via=}}</ref> First order duties prohibit or require certain conduct.<ref name=":522" /> For example, certain intentional torts such assault, battery and defamation are concerned with how certain behaviours are prohibited. The tort of negligence recognises obligations to act or not act in a certain way. Second order duties are "duties of repair" that arise upon the breach of a first order duty.<ref name=":732">{{Cite journal|last=Loth|first=Marc|date=2015|title=Corrective and Distributive Justice in Tort Law|url=|journal=SAGE Publications|volume=22|pages=795|via=}}</ref> The relationship between first and second order duties is that an individual or entity has a duty to "repair" or address the wrongful loss arising from their breach of a first order duty. In this way, the corrective justice theory accounts for one of the core aspects of tort law, which is the legal connection which exists between a wrongdoer and their victim. It explains why tort law is "a law of wrongs".<ref>{{Cite web|last=Coleman, J., Hershovitz S., Mendlow G.|first=|date=17 Dec 2015|title=Theories of the Common Law of Torts|url=https://plato.stanford.edu/archives/spr2022/entries/tort-theories/|url-status=live|archive-url=|archive-date=|access-date=|website=Stanford Encyclopedia of Philosophy Archive}}</ref><br />
<br />
==== Corrective justice versus distributive justice ====<br />
The distinction between corrective and distributive justice dates back to [https://en.wikipedia.org/wiki/Aristotle Aristotle]'s theories of justice.<ref>{{Cite journal|last=Wells|first=Catharine Pierce|date=1990|title=Tort Law as Corrective Justice: A Pragmatic Justification for Jury Adjudication|url=|journal=Michigan Law Review|volume=88|pages=2350|via=}}</ref> Both forms of justice "presuppose the Aristotelian idea of normative equilibrium".<ref>{{Cite journal|last=Zipursky|first=Benjamic|date=2003|title=Civil Recourse, Not Corrective Justice|url=|journal=The Georgetown law journal|volume=91|pages=1|via=}}</ref> While corrective justice places focus on the relationship between two individuals connected by the "voluntary or involuntary transaction" (tort), [https://plato.stanford.edu/entries/justice-distributive/ distributive justice] emphasizes the larger group or political community and the distribution of goods and legal burdens.<ref>{{Cite journal|last=Loth|first=Marc|date=2015|title=Corrective and Distributive Justice in Tort Law|url=|journal=SAGE Publications|volume=22|pages=793|via=}}</ref> Weinrib distinguishes corrective justice from the theory of distributive justice. On his account, distributive justice does not relate to two parties "directly," but arises instead "through the medium of a distributive scheme" that operates in society outside of the tort system.<ref name=":172">{{Cite book|title=Corrective Justice|last=Weinrib|first=Ernest J.|publisher=Oxford University Press|year=1991|isbn=|location=Oxford|pages=7, 18-19}}</ref> Distributive justice does not operate as a bipolar relationship, since distributive decision-making implicates "any number of parties".<ref>{{Cite book|title=Tort Theory|last=Weinrib|first=Ernest J.|publisher=Captus University Publications|year=1993|isbn=|editor-last=Cooper-Stephenson|editor-first=Ken|location=|pages=10|chapter=Formalism and its Canadian Critics|editor-last2=Gibson|editor-first2=Elaine}}</ref> <br />
=== Critiques of corrective justice theory ===<br />
==== Limits of injustice correction ====<br />
Corrective justice theory is criticised by some as overly formalist and too narrowly focused on the bilateral plaintiff-defendant relationship. [http://kencooperst.com/ Ken-Cooper Stephenson] contends that Weinrib's corrective justice theory "misunderstands much of tort law's actual social context" and "fails to accommodate tort law's legal, political, and social context".<ref>{{Cite book|title=Tort Theory|last=Cooper-Stephenson|first=Ken|publisher=Captus University Publications|year=1993|isbn=|editor-last=Cooper-Stephenson|editor-first=Ken|location=|pages=48|chapter=Corrective Justice, Substantive Equality and Tort Law|editor-last2=Gibson|editor-first2=Elaine}}</ref> <br />
{| class="wikitable" style="width: 100%"<br />
! style="background-color:#F2E0CE" |''Brown v. Canada'' <ref name=":1">''Brown v. Canada'' [2018] ONSC 3429 ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#12_4_1_Brown_v__Canada__2018__ONSC_3429 §12.4.1]).</ref> <br />
|-<br />
|Criticisms of corrective justice theory have arisen in the context of [https://en.wikipedia.org/wiki/Canadian_Indian_residential_school_system residential school] survivor litigation. [https://en.wikipedia.org/wiki/Kent_Roach Kent Roach] has questioned whether "the survivors" in this tort litigation "would have been better off had they avoided engagement with Canadian law."<ref>{{Cite journal|last=Roach|first=Kent|date=2014|title=Blaming the Victim: Canadian Law, Causation, and Residential Schools|url=https://utpjournals.press/doi/10.3138/utlj.2419|journal=University of Toronto Law Journal|volume=64|pages=566|via=}}</ref> The concern is that any legal remedies or settlements reached in practice are devoid of "correction" between survivors and the state in wake of intergenerational impacts of residential schools.<ref name=":1" /> Since no amount of money can account for the willful infliction of emotional distress, corrective justice theory may be ill-equipped to explain tort law's interaction with complex systemic realities such as colonial abuses.<br />
|}<br />
==== Dependence on distributive justice? ====<br />
While Weinrib argues that tort law exemplifies only corrective justice, others consider that the tort system necessarily relies on a "co-dependency" with distributive justice.<ref name=":422">{{Cite book|title=Tort Theory|last=Cooper-Stephenson|first=Ken|publisher=Captus University Publications|year=1993|isbn=|editor-last=Cooper-Stephenson|editor-first=Ken|location=|pages=49|chapter=Corrective Justice, Substantive Equality and Tort Law|editor-last2=Gibson|editor-first2=Elaine}}</ref> [https://ee.linkedin.com/in/heleneenmaa Helen Eenmaa-Dimitrieva] explains the intersections of corrective and distributive justice, presenting arguments that tort law has both distributive and corrective elements.<ref>{{Cite journal|last=Eenmaa-Dimitrieva|first=Helen|date=2019|title=The Problem of Dependency of Corrective Justice: Corrective Entitlements and Private Transactions|url=|journal=The Canadian Journal of Law and Jurisprudence|volume=32|pages=|via=}}</ref> Ken Cooper-Stephenson asserts that "both corrective and distributive" elements are present in tort law.<ref name=":422" /> For Cooper-Stephenson, tort law is "one component of a distributive scheme".<ref name=":422" /> That is to say, tort law's corrective justice features must be viewed within the larger societal scheme of rights and obligations which organize benefits and burdens across society.<br />
== Civil recourse ==<br />
[[File:Zgc1993-Fk9RSVdJ6Q8-unsplash.jpg|left|thumb|For Goldberg and Zipursky, tort law is a "gallery of wrongs".<ref name=":622">{{Cite book|title=Philosophical Foundations of The Law of Torts|last=Goldberg|first=John C.P.|last2=Zipursky|first2=Benjamin C.|publisher=Oxford University Press|year=2014|isbn=|editor-last=Oberdiek|editor-first=John|location=|pages=17|chapter=Tort Law and Responsibility}}</ref>|240x240px]]Civil recourse theory presents tort law as a system that empowers individuals to obtain recourse through the courts from those who wrong them. This theory has been most prominently developed by [https://hls.harvard.edu/faculty/john-c-goldberg/ John Goldberg] and [https://en.wikipedia.org/wiki/Benjamin_Zipursky Benjamin Zipursky], who argue that tort law is "a law of responsibility" that opeates to allow the tortfeasor to be "held responsible or accountable to the victim".<ref name=":622" /> Drawing upon [https://en.wikipedia.org/wiki/John_Locke John Locke]'s theory of the [https://en.wikipedia.org/wiki/Social_contract social contract], they present the tort system as a foundational societal institution that supplants individuals' claims to self-help.<ref name=":1222" /> This idea is summarized by Zipursky:<blockquote>"[b]y recognizing a legal right of action against a tortfeasor, our system respects the principle that the plaintiff is entitled to act against one who has legally wronged him or her. I call this the principle of civil recourse. The legal principle that the victim of a tort has a right of action against the tortfeasor is an instance of this more general idea."<ref name=":1222">{{Cite journal|last=Zipursky|first=Benjamin|date=2003|title=Civil recourse, not corrective justice.|url=https://heinonline.org/HOL/Page?collection=journals&handle=hein.journals/glj91&id=749&men_tab=srchresults|journal=The Georgetown law journal|volume=91|pages=735, 737|via=}}</ref></blockquote>Alike to corrective justice, civil recourse highlights the normative rights and duties at play in the tort law system.<ref>{{Cite journal|last=Gold|first=Andrew|date=2011|title=The taxonomy of civil recourse|url=|journal=Florida State University law review|volume=39|pages=66|via=}}</ref> However, unlike corrective justice, civil recourse contends that breach of a (primary) duty provides plaintiffs with a (secondary) "right of action" to seek legal redress from the wrongdoer through the courts.<ref>{{Cite journal|last=Goldberg, John & Benjamin Zipursky|first=|date=2013|title=Civil Recourse Defended: A Reply to Posner, Calabresi, Rustard, Chamallas, and Robinette”|url=|journal=Indiana Law Journal|volume=88|pages=575-576|via=}}</ref> This is not exactly a legal right to "demand payments and remedies from those who have wronged them," as corrective justice would have it.<ref>{{Cite journal|last=Zipuesky|first=Benjamin|date=2014|title=Civil recourse and the plurality of wrongs : why torts are different.|url=|journal=New Zealand Law Journal|volume=|pages=146|via=}}</ref> Rather, it is a legal power that a plaintiff may choose to exercise (or not) to bring a claim against the defendant and have it heard and adjudicated by an impartial court. <br />
{| class="wikitable" style="float:right;margin-left;10px;width:30%"<br />
|-<br />
! style="background-color:#CEE0F2" |Podcast: John Goldberg and Ben Zipursky on Recognizing Wrongs<ref>Private Law Podcast, [https://podcasts.google.com/feed/aHR0cHM6Ly9hbmNob3IuZm0vcy80ZWEzMzYzYy9wb2RjYXN0L3Jzcw/episode/ZGRhZDMxOWUtODJlMi00ZjlmLTliZTEtMDc5ZDk2YzliZGI4?sa=X&ved=0CAUQkfYCahcKEwjolPHCvNLxAhUAAAAAHQAAAAAQBw "John Goldberg and Ben Zipursky on Recognizing Wrongs"] (23 Mar 2021) ''Google Podcasts.''</ref><br />
|-<br />
| {{#widget:Iframe|url=https://open.spotify.com/embed/episode/6U8xXR8Wo53rA0TsM8uXOe?utm_source=generator|width=100%|height=100|border=0}}In this episode of the ''Private Law Podcast'' host Felipe Jimenez discuss with prominent constructivist theorists John Goldberg and Benjamin Zipursky about their book ''Recognizing Wrongs.'' <br />
|-<br />
! style="background-color:#CEE0F2" |Book Talk: John Goldberg and Ben Zipursky on Civil Recourse Theory<ref>Harvard Law School, [https://www.youtube.com/watch?v=1Q-qdMPGD0s "HLS Library Book Talk | Recognizing Wrongs"] (27 Feb 2020) ''Youtube''.</ref><br />
|-<br />
|{{YouTube|id=1Q-qdMPGD0s|width=100%|height=300}}<br />
At an event at Harvard Law School in 2020, Professors John Goldberg and Ben Zipursky discussed their book with fellow panelists.<br />
|}<br />
=== Critiques of civil recourse theory ===<br />
==== Explanatory power in tort law ====<br />
Legal economist and judge [https://en.wikipedia.org/wiki/Richard_Posner Richard Posner] has been strong critics of civil recourse theory, contending that it provides no guidance for courts making legal decisions.<ref name=":1322">{{Cite journal|last=Posner|first=Richard|date=2013|title=Instrumental and Non-instrumental Theories of Tort Law|url=|journal=Indiana Law Journal|volume=88|pages=471-472|via=}}</ref> Posner argues that civil recourse theorists' idea of a "right of action" is a feature of every [https://en.wikipedia.org/wiki/Private_law#:~:text=Private%20law%20is%20that%20part,called%20in%20civil%20legal%20systems). private law] relationship and not something unique to our understanding of tort law.<ref name=":1322" /> Additional critiques suggest that civil recourse is simply a subcomponent of corrective justice, which simply explains civil procedure.<ref name=":1322" /><br />
==== Emphasis on wrongdoing ====<br />
Another critique of civil recourse theory is that it is simply a theory of state-sanctioned revenge, a variation on instrumentalist theories of punishment. Yet, this is an interpretation that Goldberg and Zipursky are "keen to distance themselves from".<ref>{{Cite journal|last=Hershovitz|first=Scott|date=2011|title=Corrective Justice for Civil Recourse Theorists|url=|journal=Florida State University Law Review|volume=39|pages=122|via=}}</ref><br />
<br />
Despite attempts to distance civil recourse from revenge, Goldberg and Zipursky's focus on "wrongdoing" may seem strained in certain scenarios.<ref>{{Cite journal|last=Stone|first=Rebecca|date=2023|title=Private Liability Without Wrongdoing|url=|journal=University of Toronto Law Journal|volume=73|pages=60|via=}}</ref> [https://www.brooklaw.edu/Contact-Us/Gold-Andrew Andrew Gold] notes that the application of civil recourse can be "odd" as "some defendants are good faith actors who exercised due care".<ref name=":1422">{{Cite book|title=The Right of Redress|last=Gold|first=Andrew|publisher=Oxford University Press|year=2020|isbn=|location=Oxford|pages=113}}</ref> Gold adds that some plaintiffs also may be much more concerned with obtaining a remedy instead of holding the defendant responsible for their act.<ref name=":1422" /> This is especially demonstrated in strict liability or negligence cases where defendants' culpability tends to be less prominent than in intentional tort cases.<br />
== Rights vindication ==<br />
For some theorists the vindication of rights is accepted as the primary justification of tort law.<ref name=":1022">{{Cite journal|last=Varuhas|first=Jason|date=2014|title=The Concept of ‘Vindication’ in the Law<br />
of Torts: Rights, Interests and Damages|url=|journal=Oxford Journal of Legal Studies|volume=34|pages=253-7|via=}}</ref> Theories of rights vindication are distinct from corrective justice as they highlight the infringement of rights rather than an imposition of loss. Rights vindication can be viewed in two ways: one is that generally the "law affirms the existence of the right through recognition of an action for breach," and two that specifically tort law aims to "reinforce the inherent value of a particular interest".<ref>{{Cite journal|last=Varuhas|first=Jason|date=2014|title=The Concept of ‘Vindication’ in the Law of Torts: Rights, Interests and Damages|url=https://watermark.silverchair.com/gqt036.pdf?token=AQECAHi208BE49Ooan9kkhW_Ercy7Dm3ZL_9Cf3qfKAc485ysgAAA1gwggNUBgkqhkiG9w0BBwagggNFMIIDQQIBADCCAzoGCSqGSIb3DQEHATAeBglghkgBZQMEAS4wEQQMCX76Qrd7a1rdPUK_AgEQgIIDCxIfzCUdRBnbri8H1fTB68MNd6pUUYHzLCW9RxS00KlDkTtBpQvtzFVfdYsOzUN0mR4A-9Q0nKqa2i-lZ1jODr-122-y-bCSIHsA-65EBbmTyBpfhjSXqTQ1H9P53rqi1gHK4GqkgW-rZ891ZQPqjgK60e4RaYwxA1MCgPGppYn4xq9c-Ed7NWQyLmnem2cm6cQCoGAkeEtsrWoehYmKjugArSIkPg4g-DgD_Yd41pa3U0TrpmB_lMR_RNlygcuQatEDaoyqNT0kKt9Yy0qVJ-rlcZGdqYRcRnGKOTU_rPPgL0AhhAykd34U9zWQNj3CPrmpK9IxoJweNCu1lLUJ_ydvT_kdvG5rLKoh3ubIBn1JjvqgQwy17FAKRO234GF69vXNzUI39C1ir7NbPX2QApHe3Oh3sQ6CGAzWY_KO807sTjXXUJUX3FLkqnIk2kNPqawz1UbJer6Ze7DpbBeFt5oVtSyb6t7of7bqyOmLchPfkUTo-P52xIhQKTEqqIF_sNnB0LW_NrxFaOLqSencQaagNbbFimrAVbt_QY4FQoFtLg6hJ9xiTVeKqBB-kx80KF-gpy6UnEtnoa_n_P2Hl3b38XNUxEegTcbP2FrgdD4R-P1fySZnUm0H-uyV90C26OVQBFEE3kmPJNFJX6cN6LRehvIllZMg64U56apdMkXd7u3U3CU2iwUWpkaEB7XSHYHbL5YJ2Jepui6PsZbc19v6uzV1PUPSYwz054l-IsW99JGSVZzcR46TRsrqx-7rNUwExrpdl2je5sEixdlvj90etaiKB5dBSY5hd66rrArgTi-QdZJa2VbDzqBHQA9v0-SYLL0JXhqxg_S2dgiYUjVl5C0qsbjEfKE8CybgqQHpER0qDiyvsFJeEuKlhwQY0J_UgHsv_68p1eBmvxZcWDDdSIwcOVaGdTekHGyDkXB0Q80VwmrtHDeirBTU9o-eWoy42i46PX6bC7-qnw3E8glqyFsO7x1z2nLtHVAf5IjtGM64maE2bpkNjqtp9FW2V-w1jPP1gK8AJL7p|journal=Oxford Journal of Legal Studies|volume=34|pages=258|via=}}</ref> As stated by professor Arthur Ripstein, "[a] right that can be knowingly violated with impunity is no right at all."<ref>{{Cite book|title=Equality, Responsibility, and the Law|last=Ripstein|first=Arthur|publisher=Cambridge University Press|year=1998|isbn=|location=Cambridge;New York|pages=158}}</ref><br />
<br />
[https://www.law.ox.ac.uk/people/robert-stevens Robert Stevens] characterizes a tort as a "species of wrong", where a wrong "is a breach of a duty owed to someone else" and a breach of this duty is "an infringement of a right" held by the victim.<ref name=":1122">{{Cite book|url=https://doi.org/10.1093/acprof:oso/9780199211609.003.0001|title=Torts and Rights|last=Stevens|first=Robert|publisher=Oxford University Press|year=2009|isbn=|location=|pages=2|chapter=Introduction}}</ref> Stevens' "rights model" of tort law too recognises primary and secondary obligations in private law relationships: "a wrong is the infringement of a primary right which generates a secondary right". For Stevens, the secondary obligation arises from the defendant's "infringement of primary rights", rather than from the "infliction of loss" (as characterised by corrective justice theory).<ref name=":1122" /> In tort this secondary right is typically "a liability to pay [[Sandbox:Torts/Damages|compensation]]".<ref>{{Cite book|url=https://doi.org/10.1093/acprof:oso/9780199211609.003.0001|title=Torts and Rights|last=Stevens|first=Robert|publisher=Oxford University Press|year=2009|isbn=|location=|pages=287|chapter=Classification}}</ref><br />
{| class="wikitable" style="width: 100%"<br />
! style="background-color:#F2E0CE" |''Rees v. Darlington Hospital''<ref name=":05">''Rees v Darlington Memorial Hospital NHS Trust'' [https://publications.parliament.uk/pa/ld200203/ldjudgmt/jd031016/darl-1.htm <nowiki>[2003] UKHL 52</nowiki>].</ref><br />
|-<br />
|[https://www.tcd.ie/law/people/mulliga3 Andrea Mulligan] illuminates the potential effectiveness of rights vindication theory in understanding tort litigation regarding negligence and reproductive rights.<ref name=":2">{{Cite journal|last=Mulligan|first=Andrea|date=2020|title=A vindicatory approach to tortious liability for mistakes<br />
in assisted human reproduction|url=|journal=Legal Studies|volume=40|pages=55|via=}}</ref> While many cases of assisted human reproduction proceed under public law, [[Sandbox:Torts/Negligence Unborn children|negligence claims]] have also been taken as an avenue for vindicating rights-infringements arising from mistakes made in the course of [https://en.wikipedia.org/wiki/Assisted_reproductive_technology#:~:text=Assisted%20reproductive%20technology%20(ART)%20includes,the%20use%20of%20fertility%20medication. fertility treatments]. For Mulligan, the case ''Rees v. Darlington Hospital'' is illustrative.<ref name=":2" /> After the plaintiff Rees sought to not have children due to her disability and had undertaken medical care for sterilization she became pregnant. She sought compensation for the cost of having to raise a child.<ref name=":05" /> While the Court did not agree that Rees had suffered a compensable loss in the traditional sense, it awarded $15,000 in damages to recognise that the plaintiff had "suffered a legal wrong".<ref>''Rees v Darlington Memorial Hospital NHS Trust'' [https://publications.parliament.uk/pa/ld200203/ldjudgmt/jd031016/darl-1.htm <nowiki>[2003] UKHL 52</nowiki>]at para 17.</ref><br />
|}<br />
=== Critiques of rights vindication theory ===<br />
==== Distinguishing moral rights from interests ====<br />
{| class="wikitable" style="float:right;margin-left;10px;width:30%"<br />
! style="background-color:#CEE0F2" |Andrew Gold on The Right of Redress<ref>Private Law Podcast, "[https://podcasts.google.com/feed/aHR0cHM6Ly9hbmNob3IuZm0vcy80ZWEzMzYzYy9wb2RjYXN0L3Jzcw/episode/YjQyODY1YWYtYzhmZi00OTFlLWEyNDQtZjM2OWI4YzU2MGJi?sa=X&ved=0CAUQkfYCahcKEwigxJKgpYeBAxUAAAAAHQAAAAAQCg Andrew Gold on The Right of Redress]" (5 Apr 2021)</ref><br />
|-<br />
|In this episode of the ''Private Law Podcast'' host Felipe Jimenez discusses with Andrew Gold, professor of law at Brooklyn Law School, his new book ''The Right of Redress''.<br />
{{#widget:Iframe|url=https://open.spotify.com/embed/episode/6vup7TsbCk7INOsDoETIXd?utm_source=generator|width=100%|height=100|border=0}}<br />
|}A major focus of critique of [https://www.law.ox.ac.uk/people/robert-stevens Stevens]' theory on rights vindication is his classification of rights. Stevens contends that "[r]ational people can recognize rights independently of their being given the force of law’".<ref>{{Cite book|title=Torts and Rights|last=Stevns|first=Robert|publisher=Oxford University Press|year=2007|isbn=|location=|pages=330}}</ref> For many, this conception of a right resembles moral rights which rely on "basic aspects of human well-being or flourishing, such as liberty and physical integrity".<ref name=":1032">{{Cite journal|last=Varuhas|first=Jason|date=2014|title=The Concept of ‘Vindication’ in the Law<br />
of Torts: Rights, Interests and Damages|url=|journal=Oxford Journal of Legal Studies|volume=34|pages=253-7|via=}}</ref> Such rights may be viewed to have value prior to the law and are thus "pre-political".<ref name=":022">{{Cite journal|last=Priel|first=Dan|date=2011|title=That Can't Be Rights (Review of Robert Stevens's 'Torts and Rights')|url=https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1886511|journal=Juriprudence|volume=2|pages=235|via=}}</ref> Stevens refuses to extend rights to some interests that courts in some jurisdictions do recognise as attracting rights, such as pure economic loss, and instead states that an injury in tort law is only recoverable if it involves a breach of primary rights. Stevens leaves it up to the Courts to determine the scope of these primary rights upon policy grounds.<ref>{{Cite book|title=Torts and Rights|last=Stevens|first=Robert|publisher=Oxford University Press|year=2007|isbn=|location=Oxford|pages=33-7}}</ref> Scholars such as [https://www.christs.cam.ac.uk/college/people/fellows/professor-peter-cane Peter Cane]<ref name=":162">{{Cite journal|last=Cane|first=Peter|date=2008|title=Torts and Rights by Robert Stevens|url=|journal=Modern Law Review|volume=71|pages=641-647|via=}}</ref> and [https://www.osgoode.yorku.ca/faculty-and-staff/priel-dan/ Dan Priel]<ref name=":022" /> point to weaknesses in Stevens' reliance on Courts to apply the concept of moral/primary rights. In particular, Cane questions the practicality of legal reasoning being reduced to an exercise of right protection despite the realities of subjective elements of the common law.<ref name=":162" /><br />
==== Valuing rights ====<br />
In response to Robert Stevens' theory of rights, [https://www.google.com/search?q=jason+varuhas&rlz=1C5CHFA_enCA1014CA1014&oq=Jason+Varuhas&aqs=chrome.0.0i355i512j46i512.406j0j4&sourceid=chrome&ie=UTF-8 Jason Varuhas] has argued that it is is difficult to make out what would be needed to "be able to value a right" to provide an appropriate award of damages.<ref name=":1522">{{Cite journal|last=Varuhas|first=Jason|date=2014|title=The Concept of 'Vindication' in the Law of Torts: Rights, Interests and Damages|url=|journal=Oxford Journal of Legal Studies|volume=34|pages=271|via=}}</ref> Varuhas adds that since rights are understood to be a norm, calculation of the value of infringement can be arbitrary and artificial, which tends to undermine consistency in the practice of law.<ref name=":1522" /> <br />
{{DISPLAYTITLE:<span style="position: absolute; clip: rect(1px 1px 1px 1px); clip: rect(1px, 1px, 1px, 1px);">{{FULLPAGENAME}}</span>}}<br />
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== References ==<br />
<references /></div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Documentation:Torts/Introduction&diff=861517Documentation:Torts/Introduction2025-05-15T17:33:08Z<p>SamuelBeswick: </p>
<hr />
<div>{{ Infobox Torts }}<br />
<span style="font-size:200%;">{{SUBPAGENAME}}</span><br><br />
<br />
A [https://en.wikipedia.org/wiki/Tort tort] is an [https://en.wikiquote.org/wiki/Torts injurious wrong] for which a person may be held civilly liable to another.<ref name=":0">{{Cite journal|last=Beswick|first=Samuel|date=2025|title=The Cause of Action in Ahluwalia v. Ahluwalia|url=https://ssrn.com/abstract=5128861|journal=Advocates' Quarterly}}</ref> The common law recognizes dozens of different types of torts, the features of which vary and can be categorized in different ways. <br />
<br />
Tort suits are [https://www.justice.gc.ca/eng/csj-sjc/just/08.html civil claims] filed by plaintiffs/claimants against defendants. In response to a tort suit a defendant may avoid liability by ''[[Sandbox:Torts/Denials|denying]]'' having done anything wrongful to the plaintiff or by [https://wiki.ubc.ca/Sandbox:Torts/Defences ''defending''] their conduct as justified in the circumstances. When a court finds a defendant liable, the plaintiff is entitled to a [[Sandbox:Torts/Remedies|remedial order]] against the defendant, typically an order to pay [[Sandbox:Torts/Damages|damages]] (money) but sometimes an order of [[Sandbox:Torts/Injunctions|injunction]] (to stop doing something harmful). <br />
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== Tort law's place in the legal system ==<br />
{| class="wikitable" style="float:right;margin-left;10px;width:40%"<br />
! style="background-color:#CEE0F2" |What is Torts? And what Torts is not<br />
|-<br />
|{{YouTube|id=jQ6smN3lcnY|width=358|height=201}}<br />
[https://onlinelaw.wcl.american.edu/legal-studies/faculty/lindsay-wiley/ Professor Lindsay Wiley] of the American University Washington College of Law introduces principles of common law torts '''''in the United States''''', in an informative video hosted by the University of Utah S.J. Quinney College of Law's [https://www.youtube.com/@centerforinnovationinlegal3204/ Center for Innovation in Legal Education].<ref>{{Cite web|last=Center for Innovation in Legal Education|first=|date=30 July 2014|title=Episode 1.1: What is Torts? And what Torts is not.|url=https://www.youtube.com/watch?v=jQ6smN3lcnY|url-status=live|archive-url=|archive-date=|access-date=|website=YouTube}}</ref><br />
|}<br />
Tort law is a branch of [https://en.wikipedia.org/wiki/Private_law private law] that recognizes and responds to civil wrongdoing. It is part of a broader legal system that governs our relationships with each other and with our government. <br />
<br />
=== Contract law ===<br />
The [https://en.wikipedia.org/wiki/Contract law of contract] protects parties' interests in making and keeping agreements. A claim in breach of contract concerns the defendant's violation of an agreement entered into with the plaintiff. Even though breach of contract can be considered a civil wrong, it is not usually considered to be a tort. Tort claims typically do not arise from any prior agreement between the parties. Tort cases often (although certainly not always) involve parties who have never met each other prior to the defendant's injuring of the plaintiff. <br />
<br />
=== Restitution and unjust enrichment ===<br />
The law of [https://en.wikipedia.org/wiki/Restitution_and_unjust_enrichment unjust enrichment] protects plaintiffs' interests in getting back benefits they have been unjustly deprived of. Unlike a claim in tort, a claim in unjust enrichment does not depend upon proof of wrongdoing. Rather than showing that the defendant has wronged them in some way, the unjust enrichment plaintiff must show that the defendant was enriched at their expense in a way that the law does not permit. Whereas the damages remedy in tort typically focuses on restoring to the plaintiff what they have ''lost'' due to the defendant's conduct, the restitution remedy for unjust enrichment focuses on taking back from the defendant what they have ''gained'' from the plaintiff. <br />
<br />
=== Property law ===<br />
The [https://en.wikipedia.org/wiki/Property_law law of property] defines and establishes people's legal relationship with property.<ref>{{Cite web|last=|first=|date=|title=Land and Property in Canada’s Political Economy|url=https://www.opensourcelaw.ca/courses/property/|url-status=live|archive-url=|archive-date=|access-date=|website=Open Source Law}}</ref> Tort law empowers plaintiffs to seek recourse against people who interfere with their property in certain ways, for example, by [[Sandbox:Torts/Intentional interference with land|trespassing]] onto their land. <br />
<br />
=== Criminal law ===<br />
Both [http://criminalnotebook.ca/ criminal law] and tort law respond to wrongdoing.<ref>Department of Justice Canada, "Civil and Criminal Cases" in ''Canada's System of Justice'' (2015), https://www.justice.gc.ca/eng/csj-sjc/just/08.html</ref> However, when a crime is committed the state ([https://en.wikipedia.org/wiki/The_Crown the Crown] in Canada) has carriage of the prosecution, the rationale being that a crime violates an obligation that is owed to all of society, not just the injured individual.<ref>{{Cite book|url=https://www.canlii.org/en/commentary/doc/2023CanLIIDocs316#!fragment/zoupio-_Tocpdf_bk_1/BQCwhgziBcwMYgK4DsDWszIQewE4BUBTADwBdoAvbRABwEtsBaAfX2zhoBMAzZgI1TMAjAEoANMmylCEAIqJCuAJ7QA5KrERCYXAnmKV6zdt0gAynlIAhFQCUAogBl7ANQCCAOQDC9saTB80KTsIiJAA|title=Criminal Law: Canadian Law, Indigenous Laws & Critical Perspectives, 2023 CanLIIDocs 316|last=|first=|publisher=Canadian Legal Information Institute|year=2023|isbn=|editor-last=Perrin|editor-first=Benjamin|location=Ottawa|pages=|editor-last2=Milward|editor-first2=David|editor-last3=Lawrence|editor-first3=Michelle|editor-last4=McCallum|editor-first4=Myrna}}</ref> Tort law is about addressing personal wrongs committed to people by others. It is only the injured party who is entitled to sue the person who injured them. While there may be so-called “[https://en.wikipedia.org/wiki/Victimless_crime victimless crimes],” there are no victimless torts.<br />
<br />
=== Constitutional and public law ===<br />
Whereas tort law concerns (horizontal) relationships between people in society, [https://en.wikipedia.org/wiki/Public_law public law] concerns the (vertical) relationships between people and their government.<ref>{{Cite book|url=https://www.canlii.org/en/commentary/doc/2022CanLIIDocs1392#!fragment/zoupio-_Toc114228746/BQCwhgziBcwMYgK4DsDWszIQewE4BUBTADwBdoAvbRABwEtsBaAfX2zgEYOAWAJl4AcAdm4A2AJQAaZNlKEIARUSFcAT2gByDZIiEwuBEpXqtOvQZABlPKQBC6gEoBRADJOAagEEAcgGEnkqRgAEbQpOzi4kA|title=The Canadian Constitutional Law Open Access Casebook, 2022 CanLIIDocs 1392|publisher=Canadian Legal Information Institute|year=2022|isbn=|editor-last=Kislowicz|editor-first=Howard|location=|pages=|editor-last2=Lazare|editor-first2=Jodi|editor-last3=Danay|editor-first3=Robert}}</ref> Many laws, such as the ''[https://en.wikipedia.org/wiki/Canadian_Charter_of_Rights_and_Freedoms Canadian Charter of Rights and Freedoms],'' directly bind only the government and officials, not private individuals. Tort law, by contrast, presumptively applies to everyone. Certain actions of government officers can be both a tort and a public law ''Charter'' violation. For example, a police officer who attacks, detains and searches an innocent person without lawful authority both commits the torts of battery and false imprisonment as well as breaches the ''Charter''.<ref>''Elmardy v. Toronto Police Services Board'', [https://canlii.ca/t/h314g 2017 ONSC 2074].</ref><br />
<br />
== Categories of tort concepts ==<br />
<br />
Lawyers often find it helpful to think about legal doctrines in terms of categories. There is no consensus about the best way to categorize legal concepts. <br />
<br />
Tort law is often categorized in terms of the [https://www.youtube.com/watch?v=f6TUiejBILE&list=PLpbtRdN7xWUd2Mjw1haKHAu_g81xK0v72&index=3&t=236s three main types of tort liability]: intentional torts, negligence and strict liability. When we categorize tort law in this way we are distinguishing tortious concepts based on the degree of the defendant's responsibility for their conduct. Tort law concepts can be categorized in other ways, as the following table illustrates. <br />
{| class="wikitable"<br />
|+<br />
!Conceptual feature<br />
!Corresponding categories (and examples of causes of action)<br />
|-<br />
|The plaintiff’s protected interest<br />
|Bodily integrity (trespass to the person, negligence) • personal dignity (invasion of privacy, defamation, harassment) • mental health (intentional infliction of mental suffering, negligent infliction of mental injury) • personal property (trespass to chattels, conversion, detinue) • real property (trespass to land, nuisance) • economic wealth (business torts, negligent misrepresentation, negligently causing pure economic loss)<br />
|-<br />
|The type of damage the plaintiff must prove<br />
|Torts that are actionable ''per se'' (trespass to the person, trespass to land, trespass to chattels, defamation) • torts that are actionable upon proof of damage (negligence, nuisance, intrusion upon seclusion)<br />
|-<br />
|The type of damage the plaintiff suffers<br />
|Physical injury (battery, negligence) • mental injury (intentional infliction of mental suffering, negligent infliction of mental injury) loss of liberty (false imprisonment) • loss of privacy (invasion of privacy) • reputational harm (defamation) • property injury (trespass to land and chattels, nuisance) • economic loss<br />
|-<br />
|The defendant's responsibility<br />
|Intentional harmful conduct (intentional torts) • negligent harmful conduct (negligence torts) • non-careless harmful conduct (strict liability torts)<br />
|-<br />
|The defendant's conduct<br />
|Physical actions • omissions to act • statements • uses of property<br />
|-<br />
|The nature of the parties<br />
|Individuals • public authorities • professionals • companies • other organizations<br />
|}<br />
<br />
== Pleading a tort action ==<br />
<br />
The early civil procedure of the [https://en.wikipedia.org/wiki/Form_of_action writ system] influenced the development of our law today. The writs were forms ("forms of action") provided by court clerks that standardized legal pleadings and acted as commands of the Sovereign. Defendants were constrained by the parameters of the writ in order to plead their complaints.<ref>Donahue, Charles Jr (2017). [https://www.canlii.org/en/commentary/doc/2017CanLIIDocs388#!fragment//BQCwhgziBcwMYgK4DsDWszIQewE4BUBTADwBdoByCgSgBpltTCIBFRQ3AT0otokLC4EbDtyp8BQkAGU8pAELcASgFEAMioBqAQQByAYRW1SYAEbRS2ONWpA "The Modern Laws of Both Tort and Contract: Fourteenth Century Beginnings Keynotes, 2017 CanLIIDocs 388"]. ''Manitoba Law Journal''. '''40''' (1): 9–12, 17, 25–26 ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#1_3_1__The_modern_law_of_tort__fourteenth_century_beginnings_ §1.3.1]).</ref> This presented a problem for plaintiffs with novel complaints. <br />
<br />
The writ system went out of practice by the end of the 19th century and was replaced by the practice of pleading facts that courts recognize as tortious, rather than pleading legal actions provided in established forms.<ref name=":0" /> Thus today ''we plead facts, not law''.<ref>''Bell v Lever Brothers Ltd'' [https://www.iclr.co.uk/document/1890228615/casereport_89541/html <nowiki>[1931] 1 K.B. 557</nowiki>] (CA), 582–583</ref><ref>Law Reform Commission of British Columbia (November 1992). [https://www.canlii.org/en/commentary/doc/1992CanLIIDocs120#!fragment/zoupio-_Tocpdf_bk_1/BQCwhgziBcwMYgK4DsDWszIQewE4BUBTADwBdoAvbRABwEtsBaAfX2zhoBMAzZgI1TMAjAEoANMmylCEAIqJCuAJ7QA5KrERCYXAnmKV6zdt0gAynlIAhFQCUAogBl7ANQCCAOQDC9saTB80KTsIiJAA "Report on Wrongful Interference with Goods"]. ''LRC''. '''127''': 32–34 ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#!fragment/zoupio-_Toc126594697/BQCwhgziBcwMYgK4DsDWszIQewE4BUBTADwBdoAvbRABwEtsBaAfX2zgEYAmANgFYAnABYeAgOwBKADTJspQhACKiQrgCe0AOSapEQmFwJlqjdt37DIAMp5SAIQ0AlAKIAZZwDUAggDkAws5SpGAARtCk7BISQA §1.3.2]).</ref>[[File:Jaguar Mark II 3.8 L 1962.jpg|alt=A picture of a black Jaguar car on a road.|thumb|A Jaguar car. |249x249px]]<br />
{| class="wikitable"<br />
|-<br />
!style="background-color:#F2E0CE" |<br />
==== ''Letang v. Cooper'', [1964] EWCA Civ 5 <ref>''Letang v. Cooper'', [https://www.bailii.org/ew/cases/EWCA/Civ/1964/5.html <nowiki>[1964] EWCA Civ 5 (BAILII)</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#1_3_3__Letang_v__Cooper__1964__EWCA_Civ_5 §1.3.3]).</ref> ====<br />
|-<br />
|Mr. Cooper accidentally drove his Jaguar over Mrs. Letang's legs. More than three years later, Mrs. Letang sued Mr. Cooper alleging both ''negligence'' and ''trespass'' to her body. The relevant limitation statute provided that ordinarily tort claims were subject to a six year limitation period, but a three-year limitation period applied to "actions for damages for negligence." Could Mrs. Letang get around this shorter limitation period by pleading her case as one of trespass to the person? <br />
The Court of Appeal of England and Wales held that it didn't matter what legal label or form Mrs. Letang used to describe Mr. Cooper's tortious conduct. What mattered was whether the facts Mrs. Letang alleged amounted to what the law recognized as "negligence," the word used in the limitation statute. Claimants ''plead'' facts; they ''argue'' law. Since Mrs. Letang alleged that Mr. Cooper had been ''careless'' in not seeing her (it's not that he meant to hit her body), her claim was subject to the limitation statute's 3-year time-bar and it was thus brought out of time. <br />
|-<br />
|"A cause of action is simply a factual situation the existence of which entitles one person to obtain from the Court a remedy against another person. ..." – Lord Justice Diplock <ref>''Letang v. Cooper'', [https://www.bailii.org/ew/cases/EWCA/Civ/1964/5.html <nowiki>[1964] EWCA Civ 5 (BAILII)</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#1_3_3__Letang_v__Cooper__1964__EWCA_Civ_5 §1.3.3]) at para 26.</ref><br />
|}<br />
The Supreme Court of Canada has affirmed this statement of Diplock L.J., that "[a] 'cause of action' is only a set of facts that provides the basis for an action in court."<ref>''Markevich v. Canada'', [https://www.canlii.org/en/ca/scc/doc/2003/2003scc9/2003scc9.html 2003 SCC 9] at para. 27.</ref><br />
<br />
== Nature of common law elements ==<br />
The elements of various common law torts are presented throughout this wiki commentary. It is important to remember that the common law of tort has developed over time through the decisions of judges. It is not unusual to encounter different courts and secondary sources expressing elements of the same torts somewhat differently. This does not mean that one expression of the elements of a particular tort is inherently more correct than another; however, it can be important to check the jurisdiction and level of the court to assess the persuasiveness of a particular statement of the law. <br />
<br />
Though these pages seek to present elements commonly espoused by courts, particularly by courts of appeal, you may well, in your reading and research, encounter other iterations of the elements of a particular tort. <br />
== Simplified court hierarchies ==<br />
{| class="wikitable"<br />
! style="background-color:#CEE0F2" |<br />
===== Canada =====<br />
! style="background-color:#CEE0F2" |<br />
===== England & Wales =====<br />
|-<br />
|[[File:Canada Court System.svg|Canada Court System|alt=Outline of Canada's Court system|449x449px]]<br />
|[[File:Diagram of the court system of England and Wales 2014.svg|Diagram of the court system of England and Wales 2014|alt=Diagram of the court system of England and Wales|431x431px]]<br />
|} <br />
[[Category:Torts]]<br />
[[Category: England]]<br />
{{DISPLAYTITLE:<span style="position: absolute; clip: rect(1px 1px 1px 1px); clip: rect(1px, 1px, 1px, 1px);">{{FULLPAGENAME}}</span>}}</div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Documentation:Torts/Tort_theory&diff=861516Documentation:Torts/Tort theory2025-05-15T17:09:40Z<p>SamuelBeswick: </p>
<hr />
<div>{{Infobox Torts}}<br />
<span style="font-size:200%;">{{SUBPAGENAME}}</span> <br />
<br />
The study of tort theory steps back from doctrinal "black letter" law and asks broader questions such as: what is tort law and what is tort law for?<ref>{{Cite web|last=Solum|first=Lawrence|date=22 May 2005|title=Formalism and Instrumentalism|url=https://lsolum.typepad.com/legal_theory_lexicon/2005/05/legal_theory_le_1.html|url-status=live|archive-url=|archive-date=|access-date=|website=Legal Theory Lexicon}}</ref> The search for the essence and purpose of tort law has generated scholarly debates that engage legal philosophy, politics, economics, sociology, ethics, and more. Theories of torts (and private law, and law generally) are manifold. Here, they are grouped into four broad camps understood as ''instrumental'', ''constructive'', ''critical'', and ''reflexive'' views of tort law. Some theories overlap in their descriptive or normative interpretation of tort law.<ref>{{Cite journal|last=Gardner|first=John|date=23 May 2016|title=Tort Law and Its Theory|journal=Oxford Legal Studies Research Paper|volume=2}}</ref> However, we can see different principles and arguments reflected in their methodology, scope, and philosophy. Students of the law of torts should critically examine what perspectives have the most explanatory power in the array of contemporary tort law issues. <br />
== Theoretical perspectives on tort law ==<br />
[[File:Ten Tort Theories.jpg|center|thumb|590x590px|[https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#11____Tort_Theory Ten theories of tort law in a nutshell] (from Professor Samuel Beswick's perspective)]]<br />
<br />
=== Instrumental theories ===<br />
[[Documentation:Torts/Instrumental theories|Instrumental or functionalist tort theories]] tend to conceive of tort law as a means of achieving particular ends in society. Tort law is explained and justified as a system for achieving certain social goals, such as the compensation of victims, deterrence of harmful conduct, or the punishment of wrongdoers. Such theories tend to adopt an external (outsiders’) perspective on tort law, by stepping back from the system and assessing and critiquing it in terms of how well tort law achieves its goals.<br />
<br />
=== Constructive theories ===<br />
What might be termed interpretive or "[[Documentation:Torts/Constructive theories|constructive theories]]" tend to present the construction of tort law as "an expression of rights and duties regardless of the instrumental value of those rights and duties".<ref name=":22">{{Cite journal|last=Posner|first=Richard A.|date=Spring 2013|title=Instrumental and Noninstrumental Theories of Tort Law|url=https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=11057&context=ilj|journal=Indiana Law Journal|volume=88|issue=2|pages=469|via=Digital Repository at Maurer Law}}</ref> Theorists in this tradition seek to understand tort law not in terms of what tort law ''does'' but instead what tort law ''is'', on its own terms. These perspectives aim to adopt an internal point of view<ref>{{Cite web|last=Solum|first=Lawrence|date=2004|title=The Internal Point of View|url=https://lsolum.typepad.com/legal_theory_lexicon/2004/05/legal_theory_le.html|url-status=live|website=Legal Theory Lexicon}}</ref>—that is, the view of tort law held by judges and lawyers operating within the legal system. Prominent theories in this tradition contend that tort law is unified by a principle of corrective justice, or of rights vindication, or of civil recourse. <br />
=== Critical theories ===<br />
[[Documentation:Torts/Critical theories|Critical theorists]] aim to present tort law in terms of what is understood to be actually going on in the real world, rather than in terms of what tort law tries to do or purports to be. These theories tend to ground themselves in the systemic realities of the world tort law interacts with. Critical theorists center perspectives of those traditionally marganalized within society and by the legal system society has created and maintained. In particular, the theories illuminate the intersectional perspectives of people of colour, those with low socio-economic status, and women. They critique tort law and the tort system in terms of its impact on disadvantaged groups. <br />
<br />
=== Reflexive theories ===<br />
A [[Documentation:Torts/Reflexive theories|reflexive understanding]] of tort law rejects the idea that there is one grand theory or principle that can represent tort law in its entirety. The common law of tort is a system and practice that has developed over a millennium through adjudication of disputes, the enactment of legislation, and the lawyerly, political and scholarly advocacy of many people. Tort law can be described, theorised and critiqued variously in terms of what its doctrines and practices purport to do, actually do, and fail to achieve. As Peter Cane puts it, the only real unifying feature of tort law is that “tort law is the law of torts”.<ref name=":0">{{Cite book|title=Key Ideas in Tort Law|last=Cane|first=Peter|publisher=Hart Publishing|year=2017|isbn=|location=Oxford|pages=13–20|url=https://doi.org/10.5040/9781509909452.ch-003}}</ref><br />
<br />
== Tort law as a quilt ==<br />
The common law of torts is sometimes analogized to a grand old patchwork quilt.<ref name=":0" /> What does this mean?<br />
[[File:A Dear Jane quilt, inspired by the 1863 Jane Stickle quilt.jpg|alt=An intricate quilt|left|thumb|183x183px]]<br />
* An instrumental perspective might focus on how the quilt can be used to keep people warm or to have a picnic on. <br />
* A constructive perspective might focus on what the quilt is made of and how its pieces fit together.<br />
* A critical perspective might focus on who has access to the quilt and who never gets to enjoy it. <br />
* A reflexive perspective might focus less on the quilt as a whole and more on the pieces: what they're made of, who made them, who sewed them together, how well they fit together, and what maintenance and modification might be in store for the quilt in future. <br />
<br />
<br />
[[File:Metropolitan Museum of Art (The Met) - Central Park, NYC.jpg|center|thumb|357x357px|Want to learn about famous cases and apply some tort theories? Check out the [https://www.tortmuseum.org/famous-cases/ American Museum of Tort Law.]]]<br />
<br />
== Quiz ==<br />
{{H5P|id=2559|width=|height=|responsive=yes}}<br />
<br />
{{DISPLAYTITLE:<span style="position: absolute; clip: rect(1px 1px 1px 1px); clip: rect(1px, 1px, 1px, 1px);">{{FULLPAGENAME}}</span>}}<br />
<br />
<references /></div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Documentation:Torts/Negligence&diff=861515Documentation:Torts/Negligence2025-05-15T17:00:14Z<p>SamuelBeswick: </p>
<hr />
<div>{{Infobox Torts}}<br />
<span style="font-size:200%;">{{SUBPAGENAME}}</span><br />
<br />
The tort of negligence allows plaintiffs to recover for damage that is caused when someone who owes them a duty of care behaves in a manner which falls short of said duty.<ref name=":0">''Mustapha v. Culligan'', [https://www.canlii.org/t/1wz6f 2008 SCC 27] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#17_1_3_Mustapha_v__Culligan__2008__SCC_27 §17.1.3]) at para 3. </ref> The Supreme Court of Canada has defined negligent conduct as that which "creates an objectively unreasonable risk of harm."<ref>''Ryan v. Victoria (City)'', [https://www.canlii.org/t/1fqpf 1999 CanLII 706 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#14_1_2_2__Ryan_v__Victoria__City___1999__CanLII_706__SCC_ §14.1.2.2], [https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#14_2_6_2__Ryan_v__Victoria__City___1999__CanLII_706__SCC_ §14.2.6.2]) at para 28.</ref> <br />
<br />
The landmark case that precipitated courts to strive for a coherent approach to negligence was ''Donoghue v. Stevenson—''a case where the plaintiff fell ill after consuming a snail-tainted gingerbeer float that their friend had bought for them.<ref>''Donoghue v. Stevenson'', [https://www.bailii.org/uk/cases/UKHL/1932/100.html <nowiki>[1932] UKHL 100 (BAILII</nowiki>]) ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#13_1___Development_of_the_tort_of_negligence §13.1]).</ref><ref>{{Cite journal|last=Linden|first=AM|date=1983|title=The Good Neighbour on Trial: A Fountain of Sparkling Wisdom|url=https://mobile.heinonline.org/HOL/LandingPage?handle=hein.journals/ubclr17&div=9|journal=UBC Law Review|volume=17|issue=1|pages=67, 86|via=}} ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#13_1_2_The_neighbour_principle §13.1.2]).</ref> ''Donoghue v. Stevenson'' was influential, in part, because of Lord Aitken's articulation of the [[Sandbox:Torts/Duty of care#Neighbour principle|neighbour principle]] which, according to Professor Linden, "provide[d] a magnificent vehicle to enable us to discuss what is acceptable and proper conduct and what is unacceptable and improper conduct".<ref>{{Cite journal|last=Linden|first=AM|date=1983|title=The Good Neighbour on Trial: A Fountain of Sparkling Wisdom|url=https://mobile.heinonline.org/HOL/LandingPage?handle=hein.journals/ubclr17&div=9|journal=UBC Law Review|volume=17|issue=1|pages=86, 89|via=}} ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#13_1_2_The_neighbour_principle §13.1.2]).</ref> <br />
<br />
In ''Donoghue v. Stevenson'', Lord Macmillan averred that "[t]he [[Documentation:Torts/Categories of Negligence|categories of negligence]] are never closed",<ref>''Donoghue v. Stevenson'', [https://www.bailii.org/uk/cases/UKHL/1932/100.html <nowiki>[1932] UKHL 100 (BAILII</nowiki>]) ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#13_1_1_Donoghue_v__Stevenson_1932_CanLII_536__FOREP____1932__UKHL_100 §12.4.2]) at para 80.</ref> and in the years that have followed, it can be seen the law of negligence has continued to expand. <br />
<br />
== Elements of negligence ==<br />
Courts have expressed the elements of [https://en.wikipedia.org/wiki/Negligence negligence] in a number of ways, ranging from two to five elements.<ref name=":1">{{Cite journal|last=Owen|first=David G|date=2007|title=The Five Elements of Negligence|url=https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=2282&context=hlr|journal=Hofstra Law Review|volume=34|issue=4|pages=1673|via=}}</ref> The standard seems to be a four-element conception: "duty, breach, cause, and damage".<ref name=":1" /> However, some scholars argue that a five-element approach is best, as the four-element conception "misleadingly conflates two distinct ideas that too often are linked uncomfortably together under the umbrella term, 'cause': ''factual'' causation and ''proximate'' cause",<ref>{{Cite journal|last=Owen|first=David G|date=2007|title=The Five Elements of Negligence|url=https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=2282&context=hlr|journal=Hofstra Law Review|volume=35|issue=4|pages=1673–74|via=}}</ref> the latter concept also being known as legal causation or remoteness.<ref>''Mustapha v. Culligan'', [https://www.canlii.org/t/1wz6f 2008 SCC 27] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#17_1_3_Mustapha_v__Culligan__2008__SCC_27 §17.1.3]) at para 14.</ref> <br />
<br />
In ''Mustapha v. Culligan'' and ''1688782 Ontario Inc v. Maple Leaf Foods Inc'', the Supreme Court of Canada set out the test with four elements but explicitly split the fourth element into [[Sandbox:Torts/Causation|factual causation]] and [[Sandbox:Torts/Remoteness|legal causation]]:<ref name=":0" /><ref>''1688782 Ontario Inc v Maple Leaf Foods Inc,'' [https://www.canlii.org/t/jbg4h 2020 SCC 35] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#19_3_2_1688782_Ontario_Inc__v__Maple_Leaf_Foods_Inc___2020__SCC_35 §19.3.2]) at para 18.</ref><blockquote>A successful action in negligence requires that the plaintiff demonstrate (1) that the defendant owed him a duty of care; (2) that the defendant’s behaviour breached the standard of care; (3) that the plaintiff sustained damage; and (4) that the damage was caused, in fact and in law, by the defendant’s breach.</blockquote><br />
{| class="wikitable" style="width:65%"<br />
! style="background-color:#E0CEF2" |Elements of negligence<ref name=":0" /><br />
|-<br />
|1. The defendant owed the plaintiff a duty of care<br />
|-<br />
|2. The defendant's behaviour breached the standard of care<br />
|-<br />
|3. The plaintiff sustained damage<br />
|-<br />
|4. The plaintiff's damage was caused in fact by the defendant's breach<br />
|-<br />
|5. The plaintiff's damage was caused in law by the defendant's breach<br />
|}<br />
=== [[Sandbox:Torts/Duty of care|Duty of care]] ===<br />
The first element a plaintiff must prove is that the defendant owed them a duty of care.<ref name=":0" /> The duty analysis "asks whether this relationship is so close that the one may reasonably be said to owe the other a duty to take care not to injure the other".<ref>''Mustapha v. Culligan'', [https://www.canlii.org/t/1wz6f 2008 SCC 27] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#17_1_3_Mustapha_v__Culligan__2008__SCC_27 §17.1.3]) at para 4, citing ''Donoghue v. Stevenson'', [https://www.bailii.org/uk/cases/UKHL/1932/100.html <nowiki>[1932] UKHL 100 (BAILII</nowiki>]) ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#13_1___Development_of_the_tort_of_negligence §13.1]).</ref> In Canada, this stage may involve relying on an analogous established duty of care or by the plaintiff establishing a novel duty of care under what is known as the ''Anns/Cooper'' test.<ref>''Rankin’s Garage & Sales v. JJ'', [https://www.canlii.org/en/ca/scc/doc/2018/2018scc19/2018scc19.html 2018 SCC 19] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#13_4_2_3__Rankin_s_Garage__Sales_v__J_J___2018__SCC_19 §13.4.2.3]) at para 18.</ref><br />
<br />
=== [[Sandbox:Torts/Breach of duty of care|Breach of duty]] ===<br />
At the breach stage, a plaintiff "must prove that the defendant did not meet the standard of care", which involves establishing what the appropriate standard is, as well as showing that the standard was breached.<ref name=":12">Katsivela, M (2017). [https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3310639 "The Breach of the Standard of Care and the Concept of Fault in Civil Law in Canada: A Comparative Study"]. ''Canadian Bar Rev''. '''95''': 539 ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#14_1___Standard_of_care §14.1]).</ref><br />
<br />
=== [[Sandbox:Torts/Damages|Damage]] ===<br />
This element requires that the plaintiff prove that they experienced "a loss which is recognised in law as compensatable by an award of damages".<ref name=":13">''Re T&N Ltd'', [https://www.bailii.org/ew/cases/EWHC/Ch/2005/2870.html <nowiki>[2005] EWHC 2870 (Ch)</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#15_1___Damage_an_essential_element §15.1]) at para 25.</ref><br />
<br />
=== [[Sandbox:Torts/Causation in fact|Causation in fact]] ===<br />
Factual causation typically requires that the plaintiff satisfies a "but-for" test of causation.<ref name=":4">''Clements v. Clements'', [https://www.canlii.org/t/frvld 2012 SCC 32] (§[https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#16_2_2_Clements_v__Clements__2012__SCC_32 16.2.2]) at para 46.</ref> This means "the plaintiff must prove on a balance of probabilities that, but for the tortious conduct of the defendant, the plaintiff would not have sustained the injury complained of."<ref>''Snell v. Farrell,'' [https://www.canlii.org/en/ca/scc/doc/1990/1990canlii70/1990canlii70.html 1990 CanLII 70 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#16_1___But_for_cause_of_damage §16.1]) at para 15.</ref> In some cases, though, the but-for test is not suitable and alternative tests may be applied instead.<ref name=":14">{{Cite web|last=Suen|first=Ching|date=14 September 2019|title=Material Contribution: Bridging the Evidentiary Gap|url=https://blog.lselawreview.com/2019/09/material-contribution-bridging-evidentiary-gap|url-status=live|archive-url=|archive-date=|access-date=|website=LSE Law Review Blog}} ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#16_2___Material_contribution_to_risk_of_damage §16.2]).</ref><ref>{{Cite web|last=Burnett|first=Gill|date=6 April 2020|title=The Doctrine of Loss of Chance: Recent Developments|url=https://www.dacbeachcroft.com/en/gb/articles/2020/april/the-doctrine-of-loss-of-chance-recent-developments/|url-status=live|archive-url=|archive-date=|access-date=|website=DAC Beachcroft}} ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#16_3___Loss_of_chance §16.3]).</ref><br />
<br />
=== [[Sandbox:Torts/Remoteness in law|Remoteness in law]] ===<br />
<br />
Remoteness, also known as causation in law or proximate cause, considers whether “the harm [is] too unrelated to the wrongful conduct to hold the defendant fairly liable”.<ref>''Mustapha v. Culligan'', [https://www.canlii.org/t/1wz6f 2008 SCC 27] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#17_1_3_Mustapha_v__Culligan__2008__SCC_27 §17.1.3]) at para 12 citing Allen M Linden & Bruce Feldthusen, ''Canadian Tort Law,'' 8th ed (Markham: LexisNexis Butterworths, 2006).</ref> This inquiry involves considering factors such as the reasonable foreseeability of the actual injury,<ref name=":15">''Nelson (City) v. Marchi'', [https://www.canlii.org/en/ca/scc/doc/2021/2021scc41/2021scc41.html 2021 SCC 41] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#17_1_4_Nelson__City__v__Marchi__2021__SCC_41 §17.1.4]) at para 97.</ref> intervening events,<ref>''Home Office v. Dorset Yacht Co Ltd,'' [https://www.bailii.org/uk/cases/UKHL/1970/2.html <nowiki>[1970] UKHL 2 (BAILII)</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#17_2_2_Home_Office_v__Dorset_Yacht_Co__Ltd__1970__UKHL_2 §17.2.2]) at para 9.</ref> the eggshell skull principle,<ref>''Athey v. Leonati'', [https://www.canlii.org/en/ca/scc/doc/1996/1996canlii183/1996canlii183.html 1996 CanLII 183 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#17_4_1_Athey_v__Leonati__1996__CanLII_183__SCC_ §17.4.1]) at para 47.</ref> and the crumbling skull principle.<ref name=":16">''Athey v. Leonati'', [https://www.canlii.org/en/ca/scc/doc/1996/1996canlii183/1996canlii183.html 1996 CanLII 183 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#17_4_1_Athey_v__Leonati__1996__CanLII_183__SCC_ §17.4.1]) at para 36.</ref><br />
[[File:Duty of care diagram.png|center|thumb|625x625px|Diagram for pleading the tort of negligence]]<br />
<br />
== Defences ==<br />
<br />
{| class="wikitable" style="float:right;margin-left;10px;width:30%"<br />
! style="background-color:#CEE0F2" | Defences to negligence in Australia<br />
|-<br />
|In this episode of ''Just Torts'', host Brent Liang discusses potential defences to negligence with Giacomo Rotolo-Ross and Maxine Jeric, in the context of Australian tort law.<ref>{{Cite web|last=Liang|first=Brent|date=4 Jan 2018|title=Duty of Care: Defences|url=https://soundcloud.com/justtortspodcast/ep-12-duty-of-care-defences|url-status=live|archive-url=|archive-date=|access-date=|website=Just Torts|via=SoundCloud}}</ref><br />
{{#widget:Iframe|url=https://w.soundcloud.com/player/?url=https%3A//api.soundcloud.com/tracks/379044674&color=%23ff5500&auto_play=false&hide_related=false&show_comments=true&show_user=true&show_reposts=false&show_teaser=true&visual=true|width=100%|height=150px|border=0}}<br />
|}<br />
<br />
Once the plaintiff has proven the elements of negligence on a balance of probabilities, the defendant may wish to raise a defence. Common defences raised in response to claims of negligence include [[Sandbox:Torts/Consent#Assumption of risk|assumption of risk]] and [[Sandbox:Torts/Illegality|illegality]], as well as partial defences concerning [[Sandbox:Torts/Apportionment of liability|apportionment of liability]]. <br />
<br />
{{DISPLAYTITLE:<span style="position: absolute; clip: rect(1px 1px 1px 1px); clip: rect(1px, 1px, 1px, 1px);">{{FULLPAGENAME}}</span>}}</div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Documentation:Torts/Negligence&diff=861514Documentation:Torts/Negligence2025-05-15T16:59:50Z<p>SamuelBeswick: </p>
<hr />
<div>{{Infobox Torts}}<br />
<span style="font-size:200%;">{{SUBPAGENAME}}</span><br />
<br />
The tort of negligence allows plaintiffs to recover for damage that is caused when someone who owes them a duty of care behaves in a manner which falls short of said duty.<ref name=":0">''Mustapha v. Culligan'', [https://www.canlii.org/t/1wz6f 2008 SCC 27] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#17_1_3_Mustapha_v__Culligan__2008__SCC_27 §17.1.3]) at para 3. </ref> The Supreme Court of Canada has defined negligent conduct as that which "creates an objectively unreasonable risk of harm."<ref>''Ryan v. Victoria (City)'', [https://www.canlii.org/t/1fqpf 1999 CanLII 706 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#14_1_2_2__Ryan_v__Victoria__City___1999__CanLII_706__SCC_ §14.1.2.2], [https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#14_2_6_2__Ryan_v__Victoria__City___1999__CanLII_706__SCC_ §14.2.6.2]) at para 28.</ref> <br />
<br />
The landmark case that precipitated courts to strive for a coherent approach to negligence was ''Donoghue v. Stevenson—''a case where the plaintiff fell ill after consuming a snail-tainted gingerbeer float that their friend had bought for them.<ref>''Donoghue v. Stevenson'', [https://www.bailii.org/uk/cases/UKHL/1932/100.html <nowiki>[1932] UKHL 100 (BAILII</nowiki>]) ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#13_1___Development_of_the_tort_of_negligence §13.1]).</ref><ref>{{Cite journal|last=Linden|first=AM|date=1983|title=The Good Neighbour on Trial: A Fountain of Sparkling Wisdom|url=https://mobile.heinonline.org/HOL/LandingPage?handle=hein.journals/ubclr17&div=9|journal=UBC Law Review|volume=17|issue=1|pages=67, 86|via=}} ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#13_1_2_The_neighbour_principle §13.1.2]).</ref> ''Donoghue v. Stevenson'' was influential, in part, because of Lord Aitken's articulation of the [[Sandbox:Torts/Duty of care#Neighbour principle|neighbour principle]] which, according to Professor Linden, "provide[d] a magnificent vehicle to enable us to discuss what is acceptable and proper conduct and what is unacceptable and improper conduct".<ref>{{Cite journal|last=Linden|first=AM|date=1983|title=The Good Neighbour on Trial: A Fountain of Sparkling Wisdom|url=https://mobile.heinonline.org/HOL/LandingPage?handle=hein.journals/ubclr17&div=9|journal=UBC Law Review|volume=17|issue=1|pages=86, 89|via=}} ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#13_1_2_The_neighbour_principle §13.1.2]).</ref> <br />
<br />
In ''Donoghue v. Stevenson'', Lord Macmillan averred that "[t]he [[Documentation:Torts/Categories of Negligence|categories of negligence]] are never closed",<ref>''Donoghue v. Stevenson'', [https://www.bailii.org/uk/cases/UKHL/1932/100.html <nowiki>[1932] UKHL 100 (BAILII</nowiki>]) ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#13_1_1_Donoghue_v__Stevenson_1932_CanLII_536__FOREP____1932__UKHL_100 §12.4.2]) at para 80.</ref> and in the years that have followed, the law of negligence has continued to expand accordingly. <br />
<br />
== Elements of negligence ==<br />
Courts have expressed the elements of [https://en.wikipedia.org/wiki/Negligence negligence] in a number of ways, ranging from two to five elements.<ref name=":1">{{Cite journal|last=Owen|first=David G|date=2007|title=The Five Elements of Negligence|url=https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=2282&context=hlr|journal=Hofstra Law Review|volume=34|issue=4|pages=1673|via=}}</ref> The standard seems to be a four-element conception: "duty, breach, cause, and damage".<ref name=":1" /> However, some scholars argue that a five-element approach is best, as the four-element conception "misleadingly conflates two distinct ideas that too often are linked uncomfortably together under the umbrella term, 'cause': ''factual'' causation and ''proximate'' cause",<ref>{{Cite journal|last=Owen|first=David G|date=2007|title=The Five Elements of Negligence|url=https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=2282&context=hlr|journal=Hofstra Law Review|volume=35|issue=4|pages=1673–74|via=}}</ref> the latter concept also being known as legal causation or remoteness.<ref>''Mustapha v. Culligan'', [https://www.canlii.org/t/1wz6f 2008 SCC 27] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#17_1_3_Mustapha_v__Culligan__2008__SCC_27 §17.1.3]) at para 14.</ref> <br />
<br />
In ''Mustapha v. Culligan'' and ''1688782 Ontario Inc v. Maple Leaf Foods Inc'', the Supreme Court of Canada set out the test with four elements but explicitly split the fourth element into [[Sandbox:Torts/Causation|factual causation]] and [[Sandbox:Torts/Remoteness|legal causation]]:<ref name=":0" /><ref>''1688782 Ontario Inc v Maple Leaf Foods Inc,'' [https://www.canlii.org/t/jbg4h 2020 SCC 35] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#19_3_2_1688782_Ontario_Inc__v__Maple_Leaf_Foods_Inc___2020__SCC_35 §19.3.2]) at para 18.</ref><blockquote>A successful action in negligence requires that the plaintiff demonstrate (1) that the defendant owed him a duty of care; (2) that the defendant’s behaviour breached the standard of care; (3) that the plaintiff sustained damage; and (4) that the damage was caused, in fact and in law, by the defendant’s breach.</blockquote><br />
{| class="wikitable" style="width:65%"<br />
! style="background-color:#E0CEF2" |Elements of negligence<ref name=":0" /><br />
|-<br />
|1. The defendant owed the plaintiff a duty of care<br />
|-<br />
|2. The defendant's behaviour breached the standard of care<br />
|-<br />
|3. The plaintiff sustained damage<br />
|-<br />
|4. The plaintiff's damage was caused in fact by the defendant's breach<br />
|-<br />
|5. The plaintiff's damage was caused in law by the defendant's breach<br />
|}<br />
=== [[Sandbox:Torts/Duty of care|Duty of care]] ===<br />
The first element a plaintiff must prove is that the defendant owed them a duty of care.<ref name=":0" /> The duty analysis "asks whether this relationship is so close that the one may reasonably be said to owe the other a duty to take care not to injure the other".<ref>''Mustapha v. Culligan'', [https://www.canlii.org/t/1wz6f 2008 SCC 27] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#17_1_3_Mustapha_v__Culligan__2008__SCC_27 §17.1.3]) at para 4, citing ''Donoghue v. Stevenson'', [https://www.bailii.org/uk/cases/UKHL/1932/100.html <nowiki>[1932] UKHL 100 (BAILII</nowiki>]) ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#13_1___Development_of_the_tort_of_negligence §13.1]).</ref> In Canada, this stage may involve relying on an analogous established duty of care or by the plaintiff establishing a novel duty of care under what is known as the ''Anns/Cooper'' test.<ref>''Rankin’s Garage & Sales v. JJ'', [https://www.canlii.org/en/ca/scc/doc/2018/2018scc19/2018scc19.html 2018 SCC 19] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#13_4_2_3__Rankin_s_Garage__Sales_v__J_J___2018__SCC_19 §13.4.2.3]) at para 18.</ref><br />
<br />
=== [[Sandbox:Torts/Breach of duty of care|Breach of duty]] ===<br />
At the breach stage, a plaintiff "must prove that the defendant did not meet the standard of care", which involves establishing what the appropriate standard is, as well as showing that the standard was breached.<ref name=":12">Katsivela, M (2017). [https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3310639 "The Breach of the Standard of Care and the Concept of Fault in Civil Law in Canada: A Comparative Study"]. ''Canadian Bar Rev''. '''95''': 539 ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#14_1___Standard_of_care §14.1]).</ref><br />
<br />
=== [[Sandbox:Torts/Damages|Damage]] ===<br />
This element requires that the plaintiff prove that they experienced "a loss which is recognised in law as compensatable by an award of damages".<ref name=":13">''Re T&N Ltd'', [https://www.bailii.org/ew/cases/EWHC/Ch/2005/2870.html <nowiki>[2005] EWHC 2870 (Ch)</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#15_1___Damage_an_essential_element §15.1]) at para 25.</ref><br />
<br />
=== [[Sandbox:Torts/Causation in fact|Causation in fact]] ===<br />
Factual causation typically requires that the plaintiff satisfies a "but-for" test of causation.<ref name=":4">''Clements v. Clements'', [https://www.canlii.org/t/frvld 2012 SCC 32] (§[https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#16_2_2_Clements_v__Clements__2012__SCC_32 16.2.2]) at para 46.</ref> This means "the plaintiff must prove on a balance of probabilities that, but for the tortious conduct of the defendant, the plaintiff would not have sustained the injury complained of."<ref>''Snell v. Farrell,'' [https://www.canlii.org/en/ca/scc/doc/1990/1990canlii70/1990canlii70.html 1990 CanLII 70 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#16_1___But_for_cause_of_damage §16.1]) at para 15.</ref> In some cases, though, the but-for test is not suitable and alternative tests may be applied instead.<ref name=":14">{{Cite web|last=Suen|first=Ching|date=14 September 2019|title=Material Contribution: Bridging the Evidentiary Gap|url=https://blog.lselawreview.com/2019/09/material-contribution-bridging-evidentiary-gap|url-status=live|archive-url=|archive-date=|access-date=|website=LSE Law Review Blog}} ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#16_2___Material_contribution_to_risk_of_damage §16.2]).</ref><ref>{{Cite web|last=Burnett|first=Gill|date=6 April 2020|title=The Doctrine of Loss of Chance: Recent Developments|url=https://www.dacbeachcroft.com/en/gb/articles/2020/april/the-doctrine-of-loss-of-chance-recent-developments/|url-status=live|archive-url=|archive-date=|access-date=|website=DAC Beachcroft}} ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#16_3___Loss_of_chance §16.3]).</ref><br />
<br />
=== [[Sandbox:Torts/Remoteness in law|Remoteness in law]] ===<br />
<br />
Remoteness, also known as causation in law or proximate cause, considers whether “the harm [is] too unrelated to the wrongful conduct to hold the defendant fairly liable”.<ref>''Mustapha v. Culligan'', [https://www.canlii.org/t/1wz6f 2008 SCC 27] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#17_1_3_Mustapha_v__Culligan__2008__SCC_27 §17.1.3]) at para 12 citing Allen M Linden & Bruce Feldthusen, ''Canadian Tort Law,'' 8th ed (Markham: LexisNexis Butterworths, 2006).</ref> This inquiry involves considering factors such as the reasonable foreseeability of the actual injury,<ref name=":15">''Nelson (City) v. Marchi'', [https://www.canlii.org/en/ca/scc/doc/2021/2021scc41/2021scc41.html 2021 SCC 41] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#17_1_4_Nelson__City__v__Marchi__2021__SCC_41 §17.1.4]) at para 97.</ref> intervening events,<ref>''Home Office v. Dorset Yacht Co Ltd,'' [https://www.bailii.org/uk/cases/UKHL/1970/2.html <nowiki>[1970] UKHL 2 (BAILII)</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#17_2_2_Home_Office_v__Dorset_Yacht_Co__Ltd__1970__UKHL_2 §17.2.2]) at para 9.</ref> the eggshell skull principle,<ref>''Athey v. Leonati'', [https://www.canlii.org/en/ca/scc/doc/1996/1996canlii183/1996canlii183.html 1996 CanLII 183 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#17_4_1_Athey_v__Leonati__1996__CanLII_183__SCC_ §17.4.1]) at para 47.</ref> and the crumbling skull principle.<ref name=":16">''Athey v. Leonati'', [https://www.canlii.org/en/ca/scc/doc/1996/1996canlii183/1996canlii183.html 1996 CanLII 183 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#17_4_1_Athey_v__Leonati__1996__CanLII_183__SCC_ §17.4.1]) at para 36.</ref><br />
[[File:Duty of care diagram.png|center|thumb|625x625px|Diagram for pleading the tort of negligence]]<br />
<br />
== Defences ==<br />
<br />
{| class="wikitable" style="float:right;margin-left;10px;width:30%"<br />
! style="background-color:#CEE0F2" | Defences to negligence in Australia<br />
|-<br />
|In this episode of ''Just Torts'', host Brent Liang discusses potential defences to negligence with Giacomo Rotolo-Ross and Maxine Jeric, in the context of Australian tort law.<ref>{{Cite web|last=Liang|first=Brent|date=4 Jan 2018|title=Duty of Care: Defences|url=https://soundcloud.com/justtortspodcast/ep-12-duty-of-care-defences|url-status=live|archive-url=|archive-date=|access-date=|website=Just Torts|via=SoundCloud}}</ref><br />
{{#widget:Iframe|url=https://w.soundcloud.com/player/?url=https%3A//api.soundcloud.com/tracks/379044674&color=%23ff5500&auto_play=false&hide_related=false&show_comments=true&show_user=true&show_reposts=false&show_teaser=true&visual=true|width=100%|height=150px|border=0}}<br />
|}<br />
<br />
Once the plaintiff has proven the elements of negligence on a balance of probabilities, the defendant may wish to raise a defence. Common defences raised in response to claims of negligence include [[Sandbox:Torts/Consent#Assumption of risk|assumption of risk]] and [[Sandbox:Torts/Illegality|illegality]], as well as partial defences concerning [[Sandbox:Torts/Apportionment of liability|apportionment of liability]]. <br />
<br />
{{DISPLAYTITLE:<span style="position: absolute; clip: rect(1px 1px 1px 1px); clip: rect(1px, 1px, 1px, 1px);">{{FULLPAGENAME}}</span>}}</div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Documentation:Torts/Negligence&diff=861513Documentation:Torts/Negligence2025-05-15T16:59:31Z<p>SamuelBeswick: </p>
<hr />
<div>{{Infobox Torts}}<br />
<span style="font-size:200%;">{{SUBPAGENAME}}</span><br />
<br />
The tort of negligence allows plaintiffs to recover for damage that is caused when someone who owes them a duty of care behaves in a manner which falls short of said duty.<ref name=":0">''Mustapha v. Culligan'', [https://www.canlii.org/t/1wz6f 2008 SCC 27] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#17_1_3_Mustapha_v__Culligan__2008__SCC_27 §17.1.3]) at para 3. </ref> The Supreme Court of Canada has defined negligent conduct as that which "creates an objectively unreasonable risk of harm."<ref>''Ryan v. Victoria (City)'', [https://www.canlii.org/t/1fqpf 1999 CanLII 706 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#14_1_2_2__Ryan_v__Victoria__City___1999__CanLII_706__SCC_ §14.1.2.2], [https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#14_2_6_2__Ryan_v__Victoria__City___1999__CanLII_706__SCC_ §14.2.6.2]) at para 28.</ref> <br />
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The landmark case that precipitated courts to strive for a coherent approach to negligence was ''Donoghue v. Stevenson—''a case where the plaintiff fell ill after consuming a snail-tainted gingerbeer float that their friend had bought for them.<ref>''Donoghue v. Stevenson'', [https://www.bailii.org/uk/cases/UKHL/1932/100.html <nowiki>[1932] UKHL 100 (BAILII</nowiki>]) ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#13_1___Development_of_the_tort_of_negligence §13.1]).</ref><ref>{{Cite journal|last=Linden|first=AM|date=1983|title=The Good Neighbour on Trial: A Fountain of Sparkling Wisdom|url=https://mobile.heinonline.org/HOL/LandingPage?handle=hein.journals/ubclr17&div=9|journal=UBC Law Review|volume=17|issue=1|pages=67, 86|via=}} ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#13_1_2_The_neighbour_principle §13.1.2]).</ref> ''Donoghue v. Stevenson'' was influential, in part, because of Lord Aitken's articulation of the [[Sandbox:Torts/Duty of care#Neighbour principle|neighbour principle]] which, according to Professor Linden, "provide[d] a magnificent vehicle to enable us to discuss what is acceptable and proper conduct and what is unacceptable and improper conduct".<ref>{{Cite journal|last=Linden|first=AM|date=1983|title=The Good Neighbour on Trial: A Fountain of Sparkling Wisdom|url=https://mobile.heinonline.org/HOL/LandingPage?handle=hein.journals/ubclr17&div=9|journal=UBC Law Review|volume=17|issue=1|pages=86, 89|via=}} ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#13_1_2_The_neighbour_principle §13.1.2]).</ref> <br />
<br />
In ''Donoghue v. Stevenson'', Lord Macmillan averred that "[t]he [[Documentation:Torts/Categories of Negligence|categories of negligence]] are never closed",<ref>''Donoghue v. Stevenson'', [https://www.bailii.org/uk/cases/UKHL/1932/100.html <nowiki>[1932] UKHL 100 (BAILII</nowiki>]) ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#13_1_1_Donoghue_v__Stevenson_1932_CanLII_536__FOREP____1932__UKHL_100 §12.4.2]) at para 80.</ref> and in the years that have followed, the law of negligence has continued to expand accordingly.<ref>See e.g. cases discussed in [[Sandbox:Torts/Categories of negligence|Negligence Categories]].</ref> <br />
<br />
== Elements of negligence ==<br />
Courts have expressed the elements of [https://en.wikipedia.org/wiki/Negligence negligence] in a number of ways, ranging from two to five elements.<ref name=":1">{{Cite journal|last=Owen|first=David G|date=2007|title=The Five Elements of Negligence|url=https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=2282&context=hlr|journal=Hofstra Law Review|volume=34|issue=4|pages=1673|via=}}</ref> The standard seems to be a four-element conception: "duty, breach, cause, and damage".<ref name=":1" /> However, some scholars argue that a five-element approach is best, as the four-element conception "misleadingly conflates two distinct ideas that too often are linked uncomfortably together under the umbrella term, 'cause': ''factual'' causation and ''proximate'' cause",<ref>{{Cite journal|last=Owen|first=David G|date=2007|title=The Five Elements of Negligence|url=https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=2282&context=hlr|journal=Hofstra Law Review|volume=35|issue=4|pages=1673–74|via=}}</ref> the latter concept also being known as legal causation or remoteness.<ref>''Mustapha v. Culligan'', [https://www.canlii.org/t/1wz6f 2008 SCC 27] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#17_1_3_Mustapha_v__Culligan__2008__SCC_27 §17.1.3]) at para 14.</ref> <br />
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In ''Mustapha v. Culligan'' and ''1688782 Ontario Inc v. Maple Leaf Foods Inc'', the Supreme Court of Canada set out the test with four elements but explicitly split the fourth element into [[Sandbox:Torts/Causation|factual causation]] and [[Sandbox:Torts/Remoteness|legal causation]]:<ref name=":0" /><ref>''1688782 Ontario Inc v Maple Leaf Foods Inc,'' [https://www.canlii.org/t/jbg4h 2020 SCC 35] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#19_3_2_1688782_Ontario_Inc__v__Maple_Leaf_Foods_Inc___2020__SCC_35 §19.3.2]) at para 18.</ref><blockquote>A successful action in negligence requires that the plaintiff demonstrate (1) that the defendant owed him a duty of care; (2) that the defendant’s behaviour breached the standard of care; (3) that the plaintiff sustained damage; and (4) that the damage was caused, in fact and in law, by the defendant’s breach.</blockquote><br />
{| class="wikitable" style="width:65%"<br />
! style="background-color:#E0CEF2" |Elements of negligence<ref name=":0" /><br />
|-<br />
|1. The defendant owed the plaintiff a duty of care<br />
|-<br />
|2. The defendant's behaviour breached the standard of care<br />
|-<br />
|3. The plaintiff sustained damage<br />
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|4. The plaintiff's damage was caused in fact by the defendant's breach<br />
|-<br />
|5. The plaintiff's damage was caused in law by the defendant's breach<br />
|}<br />
=== [[Sandbox:Torts/Duty of care|Duty of care]] ===<br />
The first element a plaintiff must prove is that the defendant owed them a duty of care.<ref name=":0" /> The duty analysis "asks whether this relationship is so close that the one may reasonably be said to owe the other a duty to take care not to injure the other".<ref>''Mustapha v. Culligan'', [https://www.canlii.org/t/1wz6f 2008 SCC 27] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#17_1_3_Mustapha_v__Culligan__2008__SCC_27 §17.1.3]) at para 4, citing ''Donoghue v. Stevenson'', [https://www.bailii.org/uk/cases/UKHL/1932/100.html <nowiki>[1932] UKHL 100 (BAILII</nowiki>]) ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#13_1___Development_of_the_tort_of_negligence §13.1]).</ref> In Canada, this stage may involve relying on an analogous established duty of care or by the plaintiff establishing a novel duty of care under what is known as the ''Anns/Cooper'' test.<ref>''Rankin’s Garage & Sales v. JJ'', [https://www.canlii.org/en/ca/scc/doc/2018/2018scc19/2018scc19.html 2018 SCC 19] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#13_4_2_3__Rankin_s_Garage__Sales_v__J_J___2018__SCC_19 §13.4.2.3]) at para 18.</ref><br />
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=== [[Sandbox:Torts/Breach of duty of care|Breach of duty]] ===<br />
At the breach stage, a plaintiff "must prove that the defendant did not meet the standard of care", which involves establishing what the appropriate standard is, as well as showing that the standard was breached.<ref name=":12">Katsivela, M (2017). [https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3310639 "The Breach of the Standard of Care and the Concept of Fault in Civil Law in Canada: A Comparative Study"]. ''Canadian Bar Rev''. '''95''': 539 ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#14_1___Standard_of_care §14.1]).</ref><br />
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=== [[Sandbox:Torts/Damages|Damage]] ===<br />
This element requires that the plaintiff prove that they experienced "a loss which is recognised in law as compensatable by an award of damages".<ref name=":13">''Re T&N Ltd'', [https://www.bailii.org/ew/cases/EWHC/Ch/2005/2870.html <nowiki>[2005] EWHC 2870 (Ch)</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#15_1___Damage_an_essential_element §15.1]) at para 25.</ref><br />
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=== [[Sandbox:Torts/Causation in fact|Causation in fact]] ===<br />
Factual causation typically requires that the plaintiff satisfies a "but-for" test of causation.<ref name=":4">''Clements v. Clements'', [https://www.canlii.org/t/frvld 2012 SCC 32] (§[https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#16_2_2_Clements_v__Clements__2012__SCC_32 16.2.2]) at para 46.</ref> This means "the plaintiff must prove on a balance of probabilities that, but for the tortious conduct of the defendant, the plaintiff would not have sustained the injury complained of."<ref>''Snell v. Farrell,'' [https://www.canlii.org/en/ca/scc/doc/1990/1990canlii70/1990canlii70.html 1990 CanLII 70 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#16_1___But_for_cause_of_damage §16.1]) at para 15.</ref> In some cases, though, the but-for test is not suitable and alternative tests may be applied instead.<ref name=":14">{{Cite web|last=Suen|first=Ching|date=14 September 2019|title=Material Contribution: Bridging the Evidentiary Gap|url=https://blog.lselawreview.com/2019/09/material-contribution-bridging-evidentiary-gap|url-status=live|archive-url=|archive-date=|access-date=|website=LSE Law Review Blog}} ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#16_2___Material_contribution_to_risk_of_damage §16.2]).</ref><ref>{{Cite web|last=Burnett|first=Gill|date=6 April 2020|title=The Doctrine of Loss of Chance: Recent Developments|url=https://www.dacbeachcroft.com/en/gb/articles/2020/april/the-doctrine-of-loss-of-chance-recent-developments/|url-status=live|archive-url=|archive-date=|access-date=|website=DAC Beachcroft}} ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#16_3___Loss_of_chance §16.3]).</ref><br />
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=== [[Sandbox:Torts/Remoteness in law|Remoteness in law]] ===<br />
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Remoteness, also known as causation in law or proximate cause, considers whether “the harm [is] too unrelated to the wrongful conduct to hold the defendant fairly liable”.<ref>''Mustapha v. Culligan'', [https://www.canlii.org/t/1wz6f 2008 SCC 27] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#17_1_3_Mustapha_v__Culligan__2008__SCC_27 §17.1.3]) at para 12 citing Allen M Linden & Bruce Feldthusen, ''Canadian Tort Law,'' 8th ed (Markham: LexisNexis Butterworths, 2006).</ref> This inquiry involves considering factors such as the reasonable foreseeability of the actual injury,<ref name=":15">''Nelson (City) v. Marchi'', [https://www.canlii.org/en/ca/scc/doc/2021/2021scc41/2021scc41.html 2021 SCC 41] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#17_1_4_Nelson__City__v__Marchi__2021__SCC_41 §17.1.4]) at para 97.</ref> intervening events,<ref>''Home Office v. Dorset Yacht Co Ltd,'' [https://www.bailii.org/uk/cases/UKHL/1970/2.html <nowiki>[1970] UKHL 2 (BAILII)</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#17_2_2_Home_Office_v__Dorset_Yacht_Co__Ltd__1970__UKHL_2 §17.2.2]) at para 9.</ref> the eggshell skull principle,<ref>''Athey v. Leonati'', [https://www.canlii.org/en/ca/scc/doc/1996/1996canlii183/1996canlii183.html 1996 CanLII 183 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#17_4_1_Athey_v__Leonati__1996__CanLII_183__SCC_ §17.4.1]) at para 47.</ref> and the crumbling skull principle.<ref name=":16">''Athey v. Leonati'', [https://www.canlii.org/en/ca/scc/doc/1996/1996canlii183/1996canlii183.html 1996 CanLII 183 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#17_4_1_Athey_v__Leonati__1996__CanLII_183__SCC_ §17.4.1]) at para 36.</ref><br />
[[File:Duty of care diagram.png|center|thumb|625x625px|Diagram for pleading the tort of negligence]]<br />
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== Defences ==<br />
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{| class="wikitable" style="float:right;margin-left;10px;width:30%"<br />
! style="background-color:#CEE0F2" | Defences to negligence in Australia<br />
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|In this episode of ''Just Torts'', host Brent Liang discusses potential defences to negligence with Giacomo Rotolo-Ross and Maxine Jeric, in the context of Australian tort law.<ref>{{Cite web|last=Liang|first=Brent|date=4 Jan 2018|title=Duty of Care: Defences|url=https://soundcloud.com/justtortspodcast/ep-12-duty-of-care-defences|url-status=live|archive-url=|archive-date=|access-date=|website=Just Torts|via=SoundCloud}}</ref><br />
{{#widget:Iframe|url=https://w.soundcloud.com/player/?url=https%3A//api.soundcloud.com/tracks/379044674&color=%23ff5500&auto_play=false&hide_related=false&show_comments=true&show_user=true&show_reposts=false&show_teaser=true&visual=true|width=100%|height=150px|border=0}}<br />
|}<br />
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Once the plaintiff has proven the elements of negligence on a balance of probabilities, the defendant may wish to raise a defence. Common defences raised in response to claims of negligence include [[Sandbox:Torts/Consent#Assumption of risk|assumption of risk]] and [[Sandbox:Torts/Illegality|illegality]], as well as partial defences concerning [[Sandbox:Torts/Apportionment of liability|apportionment of liability]]. <br />
<br />
{{DISPLAYTITLE:<span style="position: absolute; clip: rect(1px 1px 1px 1px); clip: rect(1px, 1px, 1px, 1px);">{{FULLPAGENAME}}</span>}}</div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Documentation:Torts/Vicarious_liability&diff=861358Documentation:Torts/Vicarious liability2025-05-05T18:41:10Z<p>SamuelBeswick: </p>
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<div>{{Infobox Torts}}<br />
<span style="font-size:200%;">{{SUBPAGENAME}}</span> <br />
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Vicarious liability is a doctrine of [https://en.wikipedia.org/wiki/Strict_liability strict liability] under which a principal can be held responsible for their agent's tortious action. Vicarious liability can extend both to the agent’s negligence ''and'' to intentional torts. Vicarious liability is strict since it does not entail fault of the principal. <br />
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At the center of vicarious liability is the relationship between the tortfeasor and the principal party being held liable. While the person who directly committed the act may also be liable to the plaintiff, under this doctrine a plaintiff can additionally pursue that person's principal, which may be an employer or institutional entity that is more solvent or carries liability insurance.<ref name=":6">{{Cite book|title=The Law of Torts|last=Osborne|first=Philip|publisher=Irwin Law|year=2020|isbn=|location=Toronto|pages=383}}</ref><br />
== Common law vicarious liability ==<br />
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=== Employer liability for authorized acts ===<br />
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{| class="wikitable" style="float:right;margin-left;10px;width:30%"<br />
! style="background-color:#CEE0F2" | Developments in Vicarious Liability<br />
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|LawPod UK discusses recent developments in the doctrine of vicarious liability in English law.<ref>{{Cite web|last=LawPod|first=UK|date=20 Oct 2017|title=Vicarious Liability|url=https://open.spotify.com/embed/episode/4Ecqy4Leq7GnyGUc6jVBBl|url-status=live|archive-url=|archive-date=|access-date=|website=LawPod UK|via=SoundCloud}}</ref><br />
{{#widget:Iframe|url=https://open.spotify.com/embed/episode/4Ecqy4Leq7GnyGUc6jVBBl?utm_source=generator|width=100%|height=150px|border=0}}<br />
|}<br />
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The doctrine of vicarious liability has been recognised at common law for centuries. It originated in master-servant relationships. In the 1697 case ''Turberville v. Stampe,'' Lord Chief Justice Holt stated:<blockquote>"[i]f a stranger set fire to my house, and it burns my neighbour's house, no action will lie against me. But if my servant throws dirt onto the highway, I am indictable. So in this case if the defendant’s servant kindled the fire in the way of husbandry and proper for his employment, though he had no express command of his master, yet his master shall be liable to an action for damage done to another by the fire; for it shall be intended, that the servant had authority from his master, it being for his master’s benefit."<ref>''Turberville v. Stampe,'' (1697) 91 ER 1072 (KB).</ref></blockquote>In the early 20th century, Professor John Salmond encapsulated the doctrine of vicarious liability into two situations; "(a) a wrongful act authorized by the master, or (b) a wrongful and unauthorized mode of doing some act authorized by the master."<ref>{{Cite book|title=Law of Torts, a Treatise on the English Law of Liability for Civil Injuries|last=Salmond|first=John William|publisher=Stevens and Jaynes|year=1907|isbn=|location=London|pages=83}}</ref> ''Turberville'' and the "Salmond test" epitomised vicarious liability as concerning contexts where employees cause harm in the course of fulfilling their employment duties. <br />
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The doctrine has primarily been justified on two policy grounds: "the provisions of a just and practical remedy and the deterrence of future harm".<ref name=":6" /> In practice, vicarious liability enables employers to be held accountable for the risks that their enterprise creates through the possibility of tortious acts by employees. It accounts for financial discrepancies between individuals and enterprises, allowing successful claimants to recover from deeper-pocketed employers substantial damages for harm caused by their employees.<br />
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=== Two elements ===<br />
The Supreme Court of Canada has said that before vicarious liability will be imposed a plaintiff must establish two elements:<br />
{| class="wikitable" style="width:40%"<br />
! style="background-color:#E0CEF2" |Elements of vicarious liability<ref name=":7">''K.L.B. v. British Columbia'', [https://canlii.ca/t/50df 2003 SCC 51], [2003] 2 SCR 403 at para. 19.</ref><br />
|-<br />
| '''1.''' '''The relationship''' between the tortfeasor and the person against whom liability is sought '''was sufficiently close''' as to make a claim for vicarious liability appropriate.<br />
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|'''2.''' '''The tort was sufficiently connected''' to the tortfeasor’s assigned tasks such that the tort can be regarded as a materialization of the risks created by the principal’s enterprise.<br />
|}<br />
As to the first element, the common law has long recognized that the employee–employer relationship is "sufficiently close",<ref>''Dagenais v. Pellerin'', [https://canlii.ca/t/jm21k 2022 ONCA 76]. </ref> whereas the typical independent contractor–client relationship is not. These two types of relationship can be considered poles at opposite ends of a spectrum. Between the poles are relationships that courts have found more challenging to determine for the purposes of vicarious liability, including priest–church relationships<ref>''John Doe (G.E.B. #25) v The Roman Catholic Episcopal Corporation of St. John’s'', [https://canlii.ca/t/j8w8z 2020 NLCA 27]. </ref> and foster-parent–government relationships.<ref name=":7" /><br />
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As to the second element, the common law has had little trouble applying vicarious liability to an employee's intentional acts that their employer has authorized, and to an employee's careless acts that perhaps weren't expressly authorized but were in the realm of the sorts of acts that the employer did authorize. But what about intentional acts of an agent that were unauthorized and indeed directly contrary to the principal's wishes? When and why should such acts be attributed to the principal? This problem has generated considerable case law, scholarship and debate around the common law world. <br />
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=== Expansion of vicarious liability to some unauthorized acts ===<br />
{| class="wikitable" style="float:right;margin-left;10px;width:30%"<br />
! style="background-color:#CEE0F2" |''Bazley v. Currey'' and employment liability<br />
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|This animated video by Allard School of Law provides a summary of ''Bazley v. Currey.''{{#widget:YouTube|id=0pI383FmXkA|height=215|width=420}}<br />
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The traditional Salmond test envisaged employer liability attaching in circumstances where an employee committed a tort that was an "unauthorized mode of committing an authorized act".<ref name=":4">{{Cite journal|last=De Stefano|first=Nikolas|date=2020|title=A Comparative Look at Vicarious Liability for Intentional Wrongs and Abuses of Power in Canadian Law|url=https://canlii.ca/t/svqt|journal=Canadian Bar Review|volume=1|pages=6|via=}}</ref><ref>''Lockhart v. Canadian Pacific Railway Company,'' [https://www.canlii.org/en/ca/ukjcpc/doc/1942/1942canlii366/1942canlii366.html <nowiki>[1942] AC 591</nowiki>].</ref> But what about what about when employees use their position to do acts ''unauthorized'' by their employer that cause others significant harm? <br />
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Traditional approaches to vicarious liability came to be seen as too narrow to serve the underlying rationales of deterrence and victim compensation in cases involving an employee or agent's intentional torts such as sexual assault of vulnerable persons, which fall well outside of ordinary "employment functions".<ref name=":4" /> <br />
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Two landmark Canadian cases, ''Bazley v. Curry'' and ''Jacobi v. Griffiths'', clarified the doctrine of vicarious liability in such circumstances. Both cases involved employer liability for appalling intentional torts: sexual and physical abuse of children by employees working at non-profits. The Supreme Court of Canada in ''Bazley'' held that employers may be held liable for their employee's actions if there is a "close connection" between the employee's tortious conduct and the employment relationship.<ref>''Bazley v. Curry'', [https://canlii.ca/t/1fqlw 1999 CanLII 692 (SCC)]; ''Jacobi v. Griffiths'', [https://www.canlii.org/en/ca/scc/doc/1999/1999canlii693/1999canlii693.html?autocompleteStr=Jacobi%20v%20Griffiths&autocompletePos=1 1999 CanLII 693 (SCC)].</ref> The Supreme Court laid down the following principles to guide courts in such cases:<ref>''Bazley v. Curry'', [https://www.canlii.org/en/ca/scc/doc/1999/1999canlii692/1999canlii692.html 1999 CanLII 692 (SCC)] at para 41.</ref> <blockquote>(1) [Courts] should openly confront the question of whether liability should lie against the employer, rather than obscuring the decision beneath semantic discussions of “scope of employment” and “mode of conduct”.<br />
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(2) The fundamental question is whether the wrongful act is <u>sufficiently related</u> to conduct authorized by the employer to justify the imposition of vicarious liability. Vicarious liability is generally appropriate where there is a significant connection between the <u>creation or enhancement of a risk</u> and the wrong that accrues therefrom, even if unrelated to the employer’s desires. Where this is so, vicarious liability will serve the policy considerations of provision of an adequate and just remedy and deterrence. Incidental connections to the employment enterprise, like time and place (without more), will not suffice. Once engaged in a particular business, it is fair that an employer be made to pay the generally foreseeable costs of that business. In contrast, to impose liability for costs unrelated to the risk would effectively make the employer an involuntary insurer. <br />
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(3) In determining the sufficiency of the connection between <u>the employer’s creation or enhancement of the risk</u> and the wrong complained of, subsidiary factors may be considered. These may vary with the nature of the case. When related to intentional torts, the relevant factors may include, but are not limited to, the following:<br />
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(a) the opportunity that the enterprise afforded the employee to abuse his or her power;<br />
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(b) the extent to which the wrongful act may have furthered the employer’s aims (and hence be more likely to have been committed by the employee);<br />
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(c) the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise;<br />
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(d) the extent of power conferred on the employee in relation to the victim;<br />
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(e) the vulnerability of potential victims to wrongful exercise of the employee’s power.</blockquote>The Court held that "[a]pplying these general considerations to sexual abuse by employees, there must be a strong connection between what the employer was asking the employee to do (the risk created by the employer’s enterprise) and the wrongful act."<br />
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The ''Bazley'' approach to vicarious liability has influenced other common law jurisdictions. In the English case ''Mohamud v. Wm Morrison Supermarkets,'' the UK Supreme Court emphasized the significance of "an unbroken sequence of events" connecting the tortious act and employee duties.<ref>''Mohamud v. Wm Morrison Supermarkets plc,'' [https://www.supremecourt.uk/cases/uksc-2014-0087.html <nowiki>[2016] UKSC 11</nowiki>] at para 47.</ref> <br />
=== Expansion of vicarious liability to relationships 'akin' to employment ===<br />
While employer-employee relationships defined the traditional form of vicarious liability at the turn of the 20th century,<ref>''CCIG Investments Pty Ltd v. Schokman'' [http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2023/21.html <nowiki>[2023] HCA 21</nowiki>], paras 48-54.</ref> this has "come under increasing scrutiny in recent times and has been extended significant ways."<ref name=":0">{{Cite journal|last=Shao|first=Y.|date=2019|title=Evolution of Vicarious Liability: How the Independent Contractor Defence was Lost|url=https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#23_1_2_Evolution_of_vicarious_liability|journal=Public Interest Law Journal of New Zealand|volume=6|pages=63|via=}}</ref> In modern common law an employment contract is no longer a pre-requisite for vicarious liability, which has been extended to relationships "akin to employment".<ref name=":0" /> In practice, while the traditional conception excluded liability for independent contractors, certain relationships where contractors act as employees may also come under the umbrella of strict liability.<br />
<br />
While vicarious liability has extended to contractor situations "akin to employment", such application is troubled by the reality of the modern economy.<ref name=":0" /> In the contemporary employment landscape, independent contractors have performed functions previously restricted to traditional employment. In practice doctors, accountants, and construction workers can all be independent contractors which exist outside of employers management. The role that independent contractors play can be complex, requiring judges to adapt to industry and organization specific circumstances. In the 2001 case ''671122 Ontario Ltd. v. Sagaz Industries Canada Inc'', the court outlined factors for determining whether a commercial enterprise can be held liable for the actions of an independent contractor, referencing "the level of control the employer has over the worker's activity" as a central factor for the degree of responsibility the employer hold for wrongdoings.<ref>''671122 Ontario Ltd. v. Sagaz Industries Canada Inc.'', [https://www.canlii.org/en/ca/scc/doc/2001/2001scc59/2001scc59.html?autocompleteStr=ontario%20ltd%20v%20sa&autocompletePos=5 2001 SCC 59 (CanLII)]at para 34.</ref><br />
<br />
== Residential Schools and Government Liability ==<br />
As early as the 1880s, the Canadian government set up a nationwide network of [https://en.wikipedia.org/wiki/Canadian_Indian_residential_school_system residential schools] for Indigenous children administered by the Catholic church.<ref name=":1">{{Cite web|last=Hanson|first=Erin|date=2009|title=The Residential School System|url=https://indigenousfoundations.arts.ubc.ca/the_residential_school_system/#:~:text=The%20term%20residential%20schools%20refers,Canadian%20and%20Christian%20ways%20of|url-status=live|archive-url=|archive-date=|access-date=|website=UBC Indigenous Foundations}}</ref> The schools which would remain open until the end of the 20th century, and were known for acts of cruelty, cultural assimilation, forcible separation, and displacement. Many Indigenous students who attended these schools have spoken out regarding the sexual emotional, and physical abuse they endured from staff members.<ref name=":1" /> In some schools, it is estimated that between 48% and 70% of children were sexually abused, while other schools have an estimated 100%.<ref>{{Cite journal|last=Feldthusen|first=Bruce|date=2007|title=Civil Liability for Sexual Assault in Aboriginal Residential Schools: The Baker did it|url=|journal=Canadian Journal of Law and Society|volume=22|pages=62|via=}}</ref> As a result of the lasting legacy of residential schools, as well as the immediate harm caused to the families involved, some survivors of residential schools have pursued legal action against churches as well as the Canadian government through vicarious liability.<br />
<br />
=== Residential school victim's civil claims ===<br />
''Blackwater v. Plint'' addressed whether the Canadian Government could be held liable for the actions of Church "employers or controlling agents".<ref>''Blackwater v. Plint,'' 2005 SCC 58 ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#23_1_3_Blackwater_v__Plint__2005__SCC_58 §23.1.3]), at para 20.</ref> Chief Justice McLachlin relied on her previous ruling in ''Bazley v. Curry,'' which held a non-profit corporation vicariously liable for sexual assaults committed by an employee. The Court found that the close connection between the Church and perpetrator Plint satisfied the requirements for vicarious liability. While ''Plint'' was an employee of the church, an employer who played a "significant role in the running of the school", the Court found that the Government and Church were acting in partnership providing grounds for vicarious liability.<ref name=":2">''Blackwater v. Plint,'' 2005 SCC 58 ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#23_1_3_Blackwater_v__Plint__2005__SCC_58 §23.1.3]) at paras 35, 38.</ref> In addition, Chief Justice McLachlin added that there was "[n]o compelling jurisprudential reason ... to limit vicarious liability to only one employer, where an employee is employed by a partnership".<ref name=":2" /> The Government of Canada was found vicariously liable, with 75% of the damages apportioned to Canada, and the remaining 25% to the Church.<br />
<br />
By comparison'','' in ''E.B. v. Oblates of Mary Immaculate'' the Supreme Court set aside a claim of vicarious liability for unauthorized abuses committed on children by an employee working at the Christie Residential School. The Court held there was a lack of connection between what the employer was requiring the employee to do, or the risk created by the employer's enterprise, and the tortious act. As the perpetrator was a "baker, boat driver and odd-job man", the majority considered that it "did not put him in a position of power, trust or intimacy with respect to the children".<ref>''E.B. v. Order of the Oblates of Mary Immaculate in the Province of British Columbia'', [https://www.canlii.org/en/ca/scc/doc/2005/2005scc60/2005scc60.html?resultIndex=2 2005 SCC 60 (CanLII)] at para 51.</ref> The majority cautioned against making an employer an "involuntary insurer" liable for every tortious act committed by employees.<ref>''E.B. v. Order of the Oblates of Mary Immaculate in the Province of British Columbia'', [https://www.canlii.org/en/ca/scc/doc/2005/2005scc60/2005scc60.html?resultIndex=2 2005 SCC 60 (CanLII)] at para 48.</ref><br />
<br />
=== Policy considerations ===<br />
These two cases demonstrate different applications of the test of close connection between employee duties and tortious acts in the circumstance of residential schools. Scholars have criticized the court's approach to vicarious liability for schools and the government for atrocities at residential schools. In practice, quashing of employer liability in cases involving children taken to institutions against their will "renders children involuntary insurers" who bear the cost of risk associated with the employer's enterprise.<ref>Feldthusen, Bruce (2007). "Civil Liability for Sexual Assault in Aboriginal Residential Schools: The Baker did it". ''Canadian Journal of Law and Society''. '''22''': 85.</ref> Yet in ''Bazley,'' the Court emphasized that the imposition of vicarious liability must account for "[f]airness and the need for deterrence in this critical area of human conduct".<ref>''Bazley v. Curry'', [https://www.canlii.org/en/ca/scc/doc/1999/1999canlii692/1999canlii692.html?autocompleteStr=Bazley%20v.%20Curry&autocompletePos=1 1999 CanLII 692 (SCC)] at para 58.</ref><br />
<br />
== Statutory liability ==<br />
Alongside common law vicarious liability, legislation has created secondary liability for a number of entities ranging from the Crown, police, and parents.<br />
<br />
=== Crown Liability ===<br />
At common law the Crown could not be directly sued for the tortious acts of its servants, although in practice it tended to stand behind its servants when defendants in litigation and pay damages awards on their behalf.<ref name=":3">{{Cite book|title=Introduction to the Study of the Law of the Constitution|last=Dicey|first=A.V.|publisher=Macmillan|year=1915|isbn=|location=Indianapolis|pages=417-18.}}</ref> Today, legislation provides for the vicarious liability of the Crown: <br />
{| class="wikitable mw-collapsible mw-collapsed" style="width: 100%"<br />
! style="background-color:#CEF2E0" |''Crown Liability and Proceedings Act, RSC 1985''<br />
|-<br />
|'''3''' The Crown is liable for the damages for which, if it were a person, it would be liable ... in respect of<br />
(i) a tort committed by a servant of the Crown, or<br />
<br />
(ii) a breach of duty attaching to the ownership, occupation, possession or control of property.<br />
|}<br />
In addition to the federal statute, each province has its own form of provincial Crown liability statute:<br />
<br />
* '''Alberta''': [https://www.canlii.org/en/ab/laws/stat/rsa-2000-c-p-25/latest/rsa-2000-c-p-25.html Proceedings Against the Crown Act, RSA 2000, c P-25.]<br />
* '''British Columbia''': [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-89/latest/rsbc-1996-c-89.html Crown Proceeding Act, RSBC 1996, c 89.]<br />
* '''Manitoba''': [https://www.canlii.org/en/mb/laws/stat/ccsm-c-p140/latest/ccsm-c-p140.html The Proceedings Against the Crown Act, CCSM c P140.]<br />
* '''New Brunswick''': [https://canlii.ca/t/88b8 Proceedings Against the Crown Act, RSNB 1973, c P-18.]<br />
* '''Newfoundland and Labrador''': [https://www.canlii.org/en/nl/laws/stat/rsnl-1990-c-p-26/latest/rsnl-1990-c-p-26.html Proceedings Against the Crown Act, RSNL 1990, c P-26.]<br />
* '''Nova Scotia''': [https://www.canlii.org/en/ns/laws/stat/rsns-1989-c-360/latest/rsns-1989-c-360.html Proceedings against the Crown Act, RSNS 1989, c 360.]<br />
* '''Ontario''': [https://www.canlii.org/en/on/laws/stat/so-2019-c-7-sch-17/latest/so-2019-c-7-sch-17.html Crown Liability and Proceedings Act, 2019, SO 2019, c 7, Sch 17.]<br />
* '''Prince Edward Island''': [https://www.canlii.org/en/pe/laws/stat/rspei-1988-c-c-32/latest/rspei-1988-c-c-32.html Crown Proceedings Act, RSPEI 1988, c C-32.]<br />
* '''Saskatchewan''': [https://www.canlii.org/en/sk/laws/stat/ss-2019-c-p-27.01/latest/ss-2019-c-p-27.01.html The Proceedings Against the Crown Act, 2019, SS 2019, c P-27.01.]<br />
<br />
=== Local Government Liability ===<br />
In British Columbia, the ''[https://www.canlii.org/en/bc/laws/stat/rsbc-2015-c-1/latest/rsbc-2015-c-1.html Local Government Act],'' RSBC 2015, c 1 establishes vicarious liability for municipal governments for the acts and omissions of local public officers.<br />
<br />
=== Police Liability ===<br />
Police departments and the attorney general may be held vicariously liable for the actions of police officers as provided in policing statutes.<br />
{| class="wikitable mw-collapsible mw-collapsed" style="width: 100%"<br />
! style="background-color:#CEF2E0" |''Police Act, RSBC 1996, c 367, ss 11, 21''<br />
|-<br />
|'''11. Ministerial liability''' (1) The minister, on behalf of the government, is jointly and severally liable for torts committed by<blockquote>(a) provincial constables, auxiliary constables, special provincial constables, IIO investigators and enforcement officers appointed on behalf of a ministry, if the tort is committed in the performance of their duties, and (b) municipal constables and special municipal constables in the performance of their duties when acting in other than the municipality where they normally perform their duties.</blockquote>(2) Even though a person referred to in subsection (1)(a) or (b) is not found liable for a tort allegedly committed by the person in the performance of his or her duties, the minister may pay an amount the minister considers necessary to<blockquote>(a) settle a claim against the person for a tort allegedly committed by the person in the performance of his or her duties, or (b) reimburse the person for reasonable costs incurred by the person in defending a claim against the person for a tort allegedly committed in the performance of his or her duties.</blockquote>(3) The Minister of Finance must pay out of the consolidated revenue fund, on the requisition of the minister, money required for the purposes of subsection (2).<br />
|}<br />
<br />
<br />
In ''British Columbia v. ICBC'' Justice Lebel found the Attorney General of British Columbia liability in part for the damages resulting from the acts of negligence by a police officer during a high speed police chase.<ref name=":5">''British Columbia v. ICBC,'' 2008 SCC 3 ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#23_2_4_1__British_Columbia_v__ICBC__2008__SCC_3 §23.2.4.1]) at para 11.</ref> The case demonstrates how the ''Police Act'' transfers liability from the officer personally to the Government.<ref name=":5" /><br />
<br />
=== Parental Liability ===<br />
Parental liability statutes (such as the ''[https://www.canlii.org/en/bc/laws/stat/sbc-2001-c-45/latest/sbc-2001-c-45.html Parental Liability Act]''[https://www.canlii.org/en/bc/laws/stat/sbc-2001-c-45/latest/sbc-2001-c-45.html , SBC 2001, c 45], s 3 and the ''[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-412/latest/rsbc-1996-c-412.html School Act]''[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-412/latest/rsbc-1996-c-412.html , RSBC 1996, c 412], s 10) impose vicarious liability on parents for the tortious conduct of their children. <br />
<br />
The [https://www.canlii.org/en/bc/laws/stat/sbc-2001-c-45/latest/sbc-2001-c-45.html ''Parental Liability Act'', SBC 2001, c 45], s 3, imposes liability on BC parents of a child who "intentionally takes, damages or destroys property of another person". <br />
<br />
The ''[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-412/latest/rsbc-1996-c-412.html School Act]''[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-412/latest/rsbc-1996-c-412.html , RSBC 1996, c 412], s 10, imposes liability on parents for damage caused by their children in the context of the school environment. This statute was applied in ''Nanaimo-Ladysmith School District No. 68 v. Dean'': a 14-year-old student's parents were held liable to their child's school to the tune of $48,000 after their child's prank went awry. In her reasons Justice Fitzpatrick noted the heavy financial risk the statute creates for parents, but stated that "if there is to be any change to this provision in the ''School Act'', that is a matter for the legislature, not the court".<ref>''Nanaimo-Ladysmith School District No. 68 v. Dean,'' [https://www.canlii.org/en/bc/bcsc/doc/2015/2015bcsc11/2015bcsc11.html 2015 BCSC 11] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#23_2_6_1__Nanaimo_Ladysmith_School_District_No__68_v__Dean__2015__BCSC_11 §23.2.6.1]) at para 94.</ref><br />
<br />
== Discussion Questions ==<br />
'''Common law vicarious liability'''<br />
<br />
* Vicarious liability evolved from servant-master dynamic to traditional employer-employee dynamic to dynamics "akin to employment". What are the key elements to understanding whether a claim of vicarious liability can be successful?<br />
* Why do you think judges had difficulty extending vicarious liability to intentional torts like those seen in ''Bazley'', ''Jacobi'', and ''Plint''?<br />
* Interpretations of what qualifies as a "close connection" were under question after ''E.B. v. Oblates of Mary Immaculate''. What role does risk play in understanding whether there is a "close connection" between employees' actions and employer's enterprise?<br />
<br />
'''Statutory vicarious liability'''<br />
<br />
* Vicarious liability for the government has benefits (the compensation of victims) and drawbacks, (the cost of the government bearing the burden for the actions of individuals). What level of protection should the government get from vicarious liability if any?<br />
* The judge in ''Nanaimo-Ladysmith School District No. 68 v. Dean'' appeared concerned about ordering the Dean family to pay $48,000 in damages for their child's prank. Do you agree with the judges decision? Why or why not?<br />
<br />
== Quiz ==<br />
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<references /></div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Template:Infobox_Torts&diff=859135Template:Infobox Torts2025-04-09T17:17:45Z<p>SamuelBeswick: </p>
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! colspan="2" style="background:#6fa8dc; width:200px; color: white; font-weight:normal; font-size:11pt; padding-top: 0.5em; padding-bottom: 0.5em;" | [[Documentation:Torts|'''TORT LAW''']]<br />
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! colspan="2" style="background:#cfe2f3; font-weight:normal; width:200px; color: black; font-size:10pt;" | [https://canlii.ca/t/t9st '''CASEBOOK''']<br />
|-<br />
! colspan="2" style="background:#ffe599; font-weight:normal; width:200px; color: black; font-size:10pt;" | [[Documentation:Torts/Introduction|Introduction]]<br />
|-<br />
! colspan="2" style="background:#ffe599; font-weight:normal; width:200px; color: black; font-size:10pt;" | Dignitary Torts<br />
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! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Documentation:Torts/Defamation|Defamation]] • [[Documentation:Torts/Discrimination|Discrimination]] • [[Documentation:Torts/Harassment|Harassment]] • [[Documentation:Torts/Intentional infliction of mental suffering|Intentional infliction of mental suffering]] • [[Documentation:Torts/Invasion of privacy|Invasion of privacy]] • [[Documentation:Torts/Trespass to the person|Trespass to the person]] <br />
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! colspan="2" style="background:#ffe599; font-weight:normal; width:200px; color: black; font-size:10pt;" | Property Torts<br />
|-<br />
! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Documentation:Torts/Intentional interference with goods|Interference with goods]] • [[Documentation:Torts/Intentional interference with land|Interference with land]] • [[Documentation:Torts/Non-natural_use_of_land|Non-natural use of land]] • [[Documentation:Torts/Private nuisance|Private nuisance]] • [[Documentation:Torts/Public nuisance|Public nuisance]]<br />
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! colspan="2" style="background:#ffe599; width:200px; font-weight:normal; font-size:10pt; color: black;" | [[Documentation:Torts/Negligence|Negligence Tort]]<br />
|-<br />
! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Documentation:Torts/Duty of care|Duty of care]] • [[Documentation:Torts/Breach of duty of care|Breach of duty]] • [[Documentation:Torts/Damage|Damage]] • [[Documentation:Torts/Causation_in_fact|Causation]] • [[Documentation:Torts/Remoteness_in_law|Remoteness]]<br />
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! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Documentation:Torts/Negligence_Employment|Employment]] • [[Documentation:Torts/Negligence_Pollution|Environmental pollution]] • [[Documentation:Torts/Negligence_Products|Harmful products]] • [[Documentation:Torts/Negligence_Hosting|Hosting patrons and guests]] • [[Documentation:Torts/Negligence_Mental_injury|Infliction of mental injury]] • [[Documentation:Torts/Negligence_Misrepresentation|Misrepresentation]] • [[Documentation:Torts/Negligence_Occupiers|Occupation of premises]] • [[Documentation:Torts/Negligence_Services|Professional services]] • [[Documentation:Torts/Negligence_Public_authorities|Public authorities]] • [[Documentation:Torts/Negligence_Misrepresentation|Pure]] [[Documentation:Torts/Negligence_Shoddy_Goods_Structures|economic]] [[Documentation:Torts/Negligence_Relational_Economic_Loss|loss]] • [[Documentation:Torts/Negligence_Relational_Economic_Loss|Relational economic loss]] • [[Documentation:Torts/Negligence_Rescuers|Rescuers]] • [[Documentation:Torts/Negligence_Shoddy_Goods_Structures|Shoddy goods or structures]] • [[Documentation:Torts/Negligence_Institutional_abuse|Treatment of indigenous children]] • [[Documentation:Torts/Negligence_Unborn_children|Unborn children]] <br />
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|-<br />
! colspan="2" style="background:#ffe599; width:200px; font-weight:normal; font-size:10pt; color: black;" | Dishonesty & Abuse of Position Torts<br />
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! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Documentation:Torts/Abuse_of_process|Abuse of process]] • [[Documentation:Torts/Breach_of_confidence|Breach of confidence]] • [[Documentation:Torts/Conspiracy|Conspiracy]] • [[Documentation:Torts/Fraud|Fraud]] • [[Documentation:Torts/Inducing_breach_of_contract|Inducing breach of contract]] • [[Documentation:Torts/Injurious_falsehood|Injurious falsehood]] • [[Documentation:Torts/Intimidation|Intimidation]] • [[Documentation:Torts/Malicious_prosecution|Malicious prosecution]] • [[Documentation:Torts/Misfeasance_in_public_office|Misfeasance in public office]] • [[Documentation:Torts/Passing_off|Passing off]] • [[Documentation:Torts/Spoliation|Spoliation]] • [[Documentation:Torts/Unlawful_means|Unlawful interference with economic interests]]<br />
| style="font-size:9pt;" |<br />
|-<br />
! colspan="2" style="background:#ffe599; width:200px; font-weight:normal; font-size:10pt; color: black;" | [[Documentation:Torts/Strict_liability|Strict Liability]]<br />
|-<br />
! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Documentation:Torts/Keeping_dangerous_animals|Keeping dangerous animals]] • [[Documentation:Torts/Non-natural_use_of_land|Non-natural use of land]] • [[Documentation:Torts/Ultrahazardous_activities|Ultrahazardous activities]] • [[Documentation:Torts/Vicarious_liability|Vicarious liability]]<br />
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! colspan="2" style="background:#ffe599; width:200px; font-weight:normal; font-size:10pt; color: black;" | [[Documentation:Torts/Defences|Defences]]<br />
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! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Documentation:Torts/Apportionment of liability| Apportionment of liability]] • [[Documentation:Torts/Consent|Consent]] • [[Documentation:Torts/Defamation#Defences|Defamation defences]] • [[Documentation:Torts/Defence of property|Defence of property]] • [[Documentation:Torts/Denials|Denials]] • [[Documentation:Torts/Excuses|Excuses]] • [[Documentation:Torts/Illegality|Illegality]] • [[Documentation:Torts/Legal authority|Legal authority]] • [[Documentation:Torts/Limitation|Limitation]] • [[Documentation:Torts/Necessity|Necessity]] • [[Documentation:Torts/Self-defence|Self-defence]]<br />
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! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Documentation:Torts/Apologies|Apologies]] • [[Documentation:Torts/Damages|Damages]] • [[Documentation:Torts/Injunctions|Injunctions]] • [[Documentation:Torts/Insurance|Insurance]] • [[Documentation:Torts/Legal_costs|Legal costs]] • [[Documentation:Torts/Mitigation|Mitigation]] • [[Documentation:Torts/Intentional interference with chattels|Proprietary]]<br />
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! colspan="2" style="background:#ffe599; width:200px; font-weight:normal; font-size:10pt; color: black;" | Tort Law & Legal Systems<br />
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! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Documentation:Torts/Charter_values|Charter values]] • [[Documentation:Torts/Class_actions|Class actions]] • [[Documentation:Torts/Concurrent actions|Concurrent actions]] • [[Documentation:Torts/Constitutional_torts|Constitutional torts]] • [[Documentation:Torts/Indigenous_dispute_resolution|Indigenous dispute resolution]] • [[Documentation:Torts/No-fault compensation schemes|No-fault compensation schemes]]<br />
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! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Documentation:Torts/Instrumental_theories|Instrumental theories]] • [[Documentation:Torts/Constructive_theories|Constructive theories]] • [[Documentation:Torts/Critical_theories|Critical theories]] • [[Documentation:Torts/Reflexive_theories|Reflexive theories]]<br />
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! colspan="2" style="background:#ffe599; width:200px; font-weight:normal; font-size:10pt; color: black;" | Study Resources<br />
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! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Documentation:Torts/1L strategy|1L strategy]] • [[Documentation:Torts/Answer exercises|Answer exercises]] • [[Documentation:Torts/Quizzes|Quizzes]] • [https://blogs.ubc.ca/beswick/torts/ Beswick's course site] • [https://open-2021.sites.olt.ubc.ca/files/2025/03/2025-TLEF-Poster-SamuelBeswick.pdf Opening Up Tort Law Project]<br />
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</noinclude></div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Template:Infobox_Torts&diff=859133Template:Infobox Torts2025-04-09T17:12:41Z<p>SamuelBeswick: </p>
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! colspan="2" style="background:#6fa8dc; width:200px; color: white; font-weight:normal; font-size:11pt; padding-top: 0.5em; padding-bottom: 0.5em;" | [[Documentation:Torts|'''TORT LAW''']]<br />
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! colspan="2" style="background:#cfe2f3; font-weight:normal; width:200px; color: black; font-size:10pt;" | [https://canlii.ca/t/t9st '''CASEBOOK''']<br />
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! colspan="2" style="background:#ffe599; font-weight:normal; width:200px; color: black; font-size:10pt;" | [[Documentation:Torts/Introduction|Introduction]]<br />
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! colspan="2" style="background:#ffe599; font-weight:normal; width:200px; color: black; font-size:10pt;" | Dignitary Torts<br />
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! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Documentation:Torts/Defamation|Defamation]] • [[Documentation:Torts/Discrimination|Discrimination]] • [[Documentation:Torts/Harassment|Harassment]] • [[Documentation:Torts/Intentional infliction of mental suffering|Intentional infliction of mental suffering]] • [[Documentation:Torts/Invasion of privacy|Invasion of privacy]] • [[Documentation:Torts/Trespass to the person|Trespass to the person]] <br />
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! colspan="2" style="background:#ffe599; font-weight:normal; width:200px; color: black; font-size:10pt;" | Property Torts<br />
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! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Documentation:Torts/Intentional interference with goods|Interference with goods]] • [[Documentation:Torts/Intentional interference with land|Interference with land]] • [[Documentation:Torts/Non-natural_use_of_land|Non-natural use of land]] • [[Documentation:Torts/Private nuisance|Private nuisance]] • [[Documentation:Torts/Public nuisance|Public nuisance]]<br />
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! colspan="2" style="background:#ffe599; width:200px; font-weight:normal; font-size:10pt; color: black;" | [[Documentation:Torts/Negligence|Negligence Tort]]<br />
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! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Documentation:Torts/Duty of care|Duty of care]] • [[Documentation:Torts/Breach of duty of care|Breach of duty]] • [[Documentation:Torts/Damage|Damage]] • [[Documentation:Torts/Causation_in_fact|Causation]] • [[Documentation:Torts/Remoteness_in_law|Remoteness]]<br />
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! colspan="2" style="background:#ffe599; width:200px; font-weight:normal; font-size:10pt; color: black;" | [[Documentation:Torts/Categories of Negligence|Negligence Categories]]<br />
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! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Documentation:Torts/Negligence_Employment|Employment]] • [[Documentation:Torts/Negligence_Pollution|Environmental pollution]] • [[Documentation:Torts/Negligence_Products|Harmful products]] • [[Documentation:Torts/Negligence_Hosting|Hosting patrons and guests]] • [[Documentation:Torts/Negligence_Mental_injury|Infliction of mental injury]] • [[Documentation:Torts/Negligence_Misrepresentation|Misrepresentation]] • [[Documentation:Torts/Negligence_Occupiers|Occupation of premises]] • [[Documentation:Torts/Negligence_Services|Professional services]] • [[Documentation:Torts/Negligence_Public_authorities|Public authorities]] • [[Documentation:Torts/Negligence_Misrepresentation|Pure]] [[Documentation:Torts/Negligence_Shoddy_Goods_Structures|economic]] [[Documentation:Torts/Negligence_Relational_Economic_Loss|loss]] • [[Documentation:Torts/Negligence_Relational_Economic_Loss|Relational economic loss]] • [[Documentation:Torts/Negligence_Rescuers|Rescuers]] • [[Documentation:Torts/Negligence_Shoddy_Goods_Structures|Shoddy goods or structures]] • [[Documentation:Torts/Negligence_Institutional_abuse|Treatment of indigenous children]] • [[Documentation:Torts/Negligence_Unborn_children|Unborn children]] <br />
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! colspan="2" style="background:#ffe599; width:200px; font-weight:normal; font-size:10pt; color: black;" | Dishonesty & Abuse of Position Torts<br />
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! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Documentation:Torts/Abuse_of_process|Abuse of process]] • [[Documentation:Torts/Breach_of_confidence|Breach of confidence]] • [[Documentation:Torts/Conspiracy|Conspiracy]] • [[Documentation:Torts/Fraud|Fraud]] • [[Documentation:Torts/Inducing_breach_of_contract|Inducing breach of contract]] • [[Documentation:Torts/Injurious_falsehood|Injurious falsehood]] • [[Documentation:Torts/Intimidation|Intimidation]] • [[Documentation:Torts/Malicious_prosecution|Malicious prosecution]] • [[Documentation:Torts/Misfeasance_in_public_office|Misfeasance in public office]] • [[Documentation:Torts/Passing_off|Passing off]] • [[Documentation:Torts/Spoliation|Spoliation]] • [[Documentation:Torts/Unlawful_means|Unlawful interference with economic interests]]<br />
| style="font-size:9pt;" |<br />
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! colspan="2" style="background:#ffe599; width:200px; font-weight:normal; font-size:10pt; color: black;" | [[Documentation:Torts/Strict_liability|Strict Liability]]<br />
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! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Documentation:Torts/Keeping_dangerous_animals|Keeping dangerous animals]] • [[Documentation:Torts/Non-natural_use_of_land|Non-natural use of land]] • [[Documentation:Torts/Ultrahazardous_activities|Ultrahazardous activities]] • [[Documentation:Torts/Vicarious_liability|Vicarious liability]]<br />
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! colspan="2" style="background:#ffe599; width:200px; font-weight:normal; font-size:10pt; color: black;" | [[Documentation:Torts/Defences|Defences]]<br />
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! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Documentation:Torts/Apportionment of liability| Apportionment of liability]] • [[Documentation:Torts/Consent|Consent]] • [[Documentation:Torts/Defamation#Defences|Defamation defences]] • [[Documentation:Torts/Defence of property|Defence of property]] • [[Documentation:Torts/Denials|Denials]] • [[Documentation:Torts/Excuses|Excuses]] • [[Documentation:Torts/Illegality|Illegality]] • [[Documentation:Torts/Legal authority|Legal authority]] • [[Documentation:Torts/Limitation|Limitation]] • [[Documentation:Torts/Necessity|Necessity]] • [[Documentation:Torts/Self-defence|Self-defence]]<br />
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! colspan="2" style="background:#ffe599; width:200px; font-weight:normal; font-size:10pt; color: black;" | [[Documentation:Torts/Remedies|Remedies]]<br />
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! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Documentation:Torts/Apologies|Apologies]] • [[Documentation:Torts/Damages|Damages]] • [[Documentation:Torts/Injunctions|Injunctions]] • [[Documentation:Torts/Insurance|Insurance]] • [[Documentation:Torts/Legal_costs|Legal costs]] • [[Documentation:Torts/Mitigation|Mitigation]] • [[Documentation:Torts/Intentional interference with chattels|Proprietary]]<br />
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! colspan="2" style="background:#ffe599; width:200px; font-weight:normal; font-size:10pt; color: black;" | Tort Law & Legal Systems<br />
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! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Documentation:Torts/Charter_values|Charter values]] • [[Documentation:Torts/Class_actions|Class actions]] • [[Documentation:Torts/Concurrent actions|Concurrent actions]] • [[Documentation:Torts/Constitutional_torts|Constitutional torts]] • [[Documentation:Torts/Indigenous_dispute_resolution|Indigenous dispute resolution]] • [[Documentation:Torts/No-fault compensation schemes|No-fault compensation schemes]]<br />
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! colspan="2" style="background:#ffe599; width:200px; font-weight:normal; font-size:10pt; color: black;" | [[Documentation:Torts/Tort_theory|Tort Theory]]<br />
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! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Documentation:Torts/Instrumental_theories|Instrumental theories]] • [[Documentation:Torts/Constructive_theories|Constructive theories]] • [[Documentation:Torts/Critical_theories|Critical theories]] • [[Documentation:Torts/Reflexive_theories|Reflexive theories]]<br />
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! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Documentation:Torts/1L strategy|1L strategy]] • [[Documentation:Torts/Answer exercises|Answer exercises]] • [[Documentation:Torts/Quizzes|Quizzes]] • [https://blogs.ubc.ca/beswick/torts/ Beswick's course site] • [https://open-2021.sites.olt.ubc.ca/files/2025/03/2025-TLEF-Poster-SamuelBeswick.pdf Opening Up Tort Law Project]<br />
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<noinclude><br />
[[category:Infobox Templates]] <br />
</noinclude></div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Documentation:Torts/Negligence_Unborn_children&diff=858812Documentation:Torts/Negligence Unborn children2025-04-08T18:57:46Z<p>SamuelBeswick: /* Parent claim of wrongful birth */</p>
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<div>{{Infobox Torts }}<br />
<span style="font-size:200%;">Negligence concerning unborn children</span><br>Cases of negligence concerning unborn children are generally brought against health care providers and may be advanced either by the parent or the child. These claims fall into one of several categories:<ref>{{Cite journal|last=Todd|first=Stephen|date=2005|title=Wrongful Conception, Wrongful Birth and Wrongful Life|url=http://www8.austlii.edu.au/cgi-bin/viewdoc/au/journals/SydLawRw/2005/25.html|journal=Sydney Law Review|volume=27|pages=525}}</ref> claims by a parent of wrongful conception,<ref>See e.g. ''Macfarlane and Another v. Tayside Health Board (Scotland)'', [http://www.bailii.org/uk/cases/UKHL/1999/50.html <nowiki>[1999] UKHL 50 (BAILII)</nowiki>]; ''Parkinson v. St James and Seacroft University Hospital NHS Trust'', [https://www.bailii.org/ew/cases/EWCA/Civ/2001/530.html <nowiki>[2001] EWCA Civ 530</nowiki>]; ''Rees v. Darlington Memorial Hospital NHS Trust'', [http://www.bailii.org/uk/cases/UKHL/2003/52.html <nowiki>[2003] UKHL 52</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Rees_v._Darlington_1 §19.10.1.1]).</ref> claims by a parent of wrongful birth,<ref>See e.g. ''Arndt v. Smith'', [https://canlii.ca/t/1fr0v 1997 CanLII 360 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Arndt_v._Smith §19.10.2.1]).</ref> claims by a parent of wrongful in-vitro fertilization,<ref>See e.g. ''ACB v. Thomson Medical Pte Ltd'', [https://www.elitigation.sg/gd/s/2017_SGCA_20 <nowiki>[2017] SGCA 20</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_ACB_v._Thomson §19.10.5.1]).</ref> claims by a child of wrongful pre-natal birth,<ref>See e.g. ''Liebig v. Guelph General Hospital'', [https://canlii.ca/t/2b69p 2010 ONCA 450] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Liebig_v._Guelph §19.10.3.1]).</ref> and claims by a child of wrongful life.<ref>See e.g. ''Florence v. Benzaquen'', [https://canlii.ca/t/jh3mw 2021 ONCA 523] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Florence_v._Benzaquen §19.10.4.1]); ''Lacroix (Guardian of) v. Dominique'', [https://canlii.ca/t/1fc5t 2001 MBCA 122].</ref> As with any negligence claim, a plaintiff must prove that: the defendant owed them an existing or novel [[Sandbox:Torts/Duty of care|duty of care]], the duty was [https://wiki.ubc.ca/Sandbox:Torts/Breach_of_duty_of_care breached], the plaintiff suffered [https://wiki.ubc.ca/Sandbox:Torts/Damage damage], and the defendant's negligence was the cause of the damage in [https://wiki.ubc.ca/Sandbox:Torts/Causation_in_fact fact] and in [https://wiki.ubc.ca/Sandbox:Torts/Remoteness_in_law law].<ref>''Mustapha v. Culligan of Canada Ltd.'', [https://canlii.ca/t/1wz6f 2008 SCC 27] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Mustapha_v._Culligan §17.1.2]).</ref> <br />
<br />
== Parent claim of wrongful conception ==<br />
{| class="wikitable" style="float:right;margin-left;10px;width:30%"<br />
! style="background-color:#CEE0F2" |Medical negligence and unborn children<br />
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|In this [https://podcasts.apple.com/gb/podcast/kings-chambers-debrief-episode-8-wrongful-birth/id1388312435?i=1000445956363 episode] of Kings Chambers Podcast, the hosts discuss several key cases of negligence concerning unborn children,<ref>{{Cite web|last=Kings Chambers Podcast|date=August 2019|title=Kings Chambers Debrief Episode 8 - Wrongful Birth|url=https://podcasts.apple.com/gb/podcast/kings-chambers-debrief-episode-8-wrongful-birth/id1388312435?i=1000445956363|url-status=live|website=Apple Podcasts}}</ref> including ''McFarlane v. Tayside Health Board'',<ref>''Macfarlane and Another v. Tayside Health Board (Scotland)'', [http://www.bailii.org/uk/cases/UKHL/1999/50.html <nowiki>[1999] UKHL 50 (BAILII)</nowiki>].</ref> ''Rees v. Darlington Memorial Hospital NHS Trust'',<ref>''Rees v. Darlington Memorial Hospital NHS Trust'', [http://www.bailii.org/uk/cases/UKHL/2003/52.html <nowiki>[2003] UKHL 52</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Rees_v._Darlington_1 §19.10.1.1]).</ref> and ''Khan v. Meadows''.<ref>''Khan v. Meadows'', [https://www.bailii.org/uk/cases/UKSC/2021/21.html <nowiki>[2021] UKSC 21</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Khan_v._Meadows §19.4.3.2]),</ref><br />
{{#widget:Iframe<br />
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Wrongful conception cases are premised on a claim that but for a doctor's negligent performance of a sterilization procedure, the mother would not have conceived. Plaintiffs often sue to recover costs associated with raising the unplanned child. <br />
<br />
=== Suing for costs of a healthy baby ===<br />
Courts have ruled that a parent cannot recover for the costs associated with raising a normal, healthy child. In ''McFarlane v. Tayside Health Board'', a couple sued the Health Board alleging they had been negligently advised that the husband was infertile following a vasectomy operation. Believing this to be true, the couple engaged in intercourse and unexpectedly conceived a child together. They sought to recover the costs of maintaining that child. The House of Lords rejected the claim, holding that the law should treat a healthy baby as a blessing and not a detriment. However, the plaintiffs were still awarded £5,000 in damages for the loss of their autonomy.<ref>''Macfarlane and Another v. Tayside Health Board (Scotland)'', [http://www.bailii.org/uk/cases/UKHL/1999/50.html <nowiki>[1999] UKHL 50 (BAILII)</nowiki>].</ref><br />
<br />
=== Suing for costs of a baby's disabilities ===<br />
A different conclusion has been reached in cases where the unplanned child is not healthy. In ''Parkinson v. St James and Seacroft University Hospital NHS Trust,'' the mother had received a negligently performed sterilization procedure and subsequently gave birth to a child with disabilities that the mother believed would be lifelong.<ref>''Parkinson v. St James and Seacroft University Hospital NHS Trust'', [https://www.bailii.org/ew/cases/EWCA/Civ/2001/530.html <nowiki>[2001] EWCA Civ 530</nowiki>] at paras 2'''–'''10.</ref> The Court of Appeal upheld the lower court's decision that while the mother could not recover the basic costs of raising the unplanned child, she could recover the additional costs of providing care for the child's disabilities.<ref>''Parkinson v. St James and Seacroft University Hospital NHS Trust'', [https://www.bailii.org/ew/cases/EWCA/Civ/2001/530.html <nowiki>[2001] EWCA Civ 530</nowiki>] at paras 1, 51, 95.</ref><br />
<br />
=== Suing for costs of a mother's disabilities ===<br />
A couple years later, yet another variant of the unplanned child claim came before the House of Lords, this time involving the parent's disability. In ''Rees v. Darlington Memorial Hospital NHS Trust'', the plaintiff had undergone a sterilization procedure because she believed her visual disability rendered her unfit to be an effective caretaker.<ref>''Rees v. Darlington Memorial Hospital NHS Trust'', [http://www.bailii.org/uk/cases/UKHL/2003/52.html <nowiki>[2003] UKHL 52</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Rees_v._Darlington_1 §19.10.1.1]) at para 1.</ref> The procedure was performed negligently, and she gave birth to a healthy baby. The House of Lords overturned the Court of Appeal's holding that the plaintiff was entitled to recover the additional costs attributable to her disability, but it awarded her a lump sum on the grounds that she still suffered a legal wrong as a result of the defendant's negligence and lost the opportunity to live her life in the way that she had planned.<ref>''Rees v. Darlington Memorial Hospital NHS Trust'', [http://www.bailii.org/uk/cases/UKHL/2003/52.html <nowiki>[2003] UKHL 52</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Rees_v._Darlington_1 §19.10.1.1]) at para 8.</ref><br />
Referencing the decision in ''Parkinson'', Lord Bingham made the following points:<blockquote>(1) While I have every sympathy with the Court of Appeal’s view that Mrs Parkinson should be compensated, it is arguably anomalous that the defendant’s liability should be related to a disability which the doctor’s negligence did not cause and not to the birth which it did. <br />
<br />
...<br />
<br />
(3) It is undesirable that parents, in order to recover compensation, should be encouraged to portray either their children or themselves as disabled. ...<br />
<br />
(4) In a state such as ours, which seeks to make public provision for the consequences of disability, the quantification of additional costs attributable to disability, whether of the parent or the child, is a task of acute difficulty. This is highlighted by the inability of the claimant in this appeal to give any realistic indication of the additional costs she seeks to recover.<ref>''Rees v. Darlington Memorial Hospital NHS Trust'', [http://www.bailii.org/uk/cases/UKHL/2003/52.html <nowiki>[2003] UKHL 52</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Rees_v._Darlington_1 §19.10.1.1]) at para 9.</ref></blockquote>The point on the difficulty of calculating damages was emphasized in the Canadian case ''PP v. DD'', where the father of an unplanned, healthy child sued the mother for the emotional and economic costs of raising the child.<ref>''PP v. DD'', [https://canlii.ca/t/h03wd 2017 ONCA 180] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_PP_v._DD §6.3.2.2]).</ref> The Ontario Court of Appeal noted that calculating the plaintiff's purported loss is especially challenging where the claim is brought by the father, someone who shares in the legal and moral responsibility of maintaining the child.<ref>''PP v. DD'', [https://canlii.ca/t/h03wd 2017 ONCA 180] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_PP_v._DD_1 §19.10.1.2]) at paras 53-54.</ref><br />
<br />
== Parent claim of wrongful birth ==<br />
[[File:Echografie2.jpg|alt=Ultrasound image of a fetus in the womb.|thumb]]<br />
Another legally and morally fraught category of claims concerning unplanned children, referred to as "wrongful birth" cases, relates to a plaintiff's assertion that they would have terminated the pregnancy had it not been for the defendant's negligent act.<ref>''Parkinson v. St James and Seacroft University Hospital NHS Trust'', [https://www.bailii.org/ew/cases/EWCA/Civ/2001/530.html <nowiki>[2001] EWCA Civ 530</nowiki>] at para 46.</ref><ref>{{Cite journal|last=Ramey|first=E. Travis|date=2025|title=Wrongful Birth After Dobbs and the Limits of Tort Law in Areas of Dissensus|url=https://ssrn.com/abstract=5124741|journal=103 Neb. L. Rev. 459}}</ref> <br />
<br />
In ''Arndt v. Smith'', the plaintiff contracted chickenpox, and the fetus was injured by the virus during the pregnancy.<ref name=":0">''Arndt v. Smith'', [https://canlii.ca/t/1fr0v 1997 CanLII 360 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Arndt_v._Smith §19.10.2.1]) at para 31.</ref> The plaintiff alleged that if her doctor had properly advised her of the risk her condition posed to the fetus, she would have had an abortion.<ref name=":0" /> She sued for the cost of raising her child.<ref name=":0" /> However, the plaintiff's claim failed on causation. The Supreme Court of Canada held that the plaintiff could not prove on a balance of probabilities that she would have actually opted to terminate the pregnancy.<ref>''Arndt v. Smith'', [https://canlii.ca/t/1fr0v 1997 CanLII 360 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Arndt_v._Smith §19.10.2.1]) at para 72.</ref> <br />
<br />
The central issue of the causation analysis was which counterfactual the Court should apply: what the plaintiff would have done had she been properly informed, or what a hypothetical reasonable person would have done?<ref>''Arndt v. Smith'', [https://canlii.ca/t/1fr0v 1997 CanLII 360 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Arndt_v._Smith §19.10.2.1]) at para 39.</ref> Justice McLachlin, concurring in part, found that the proper approach is to evaluate the the plaintiff's assertion of what she would have done by reference to her circumstances at the time she would have made her choice.<ref>''Arndt v. Smith'', [https://canlii.ca/t/1fr0v 1997 CanLII 360 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Arndt_v._Smith §19.10.2.1]) at para 42.</ref> In other words, the test incorporates both subjective and objective elements. A judge should ask what the plaintiff in question would have done, but the reasonableness of her choice must be considered with regard to objective evidence, such as her attitudes at the time of the decision and the medical advice she would have received if the doctor had discharged the duty of care.<ref>''Arndt v. Smith'', [https://canlii.ca/t/1fr0v 1997 CanLII 360 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Arndt_v._Smith §19.10.2.1]) at paras 44, 55.</ref><br />
<br />
The Court's majority also emphasized that the test must still account for the plaintiff's own fears and beliefs because "[i]t is important to include some subjective aspects in the assessment of what the reasonable person in the position of the plaintiff would have done if all the risks had been disclosed."<ref>''Arndt v. Smith'', [https://canlii.ca/t/1fr0v 1997 CanLII 360 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Arndt_v._Smith §19.10.2.1]) at paras 44, 55.</ref> With this principle in mind, the Court was of the view that a reasonable person in the plaintiff's position would not have chosen to have an abortion simply because of a small risk posed to the fetus by the chickenpox virus.<ref>''Arndt v. Smith'', [https://canlii.ca/t/1fr0v 1997 CanLII 360 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Arndt_v._Smith §19.10.2.1]) at para 18.</ref> <br />
<br />
== Parent claim of wrongful in-vitro fertilization ==<br />
[[File:InVitroFertilization.jpg|alt=A blue microscopic image of intracytoplasmic sperm injection (in-vitro fertilization) in why a sperm is medically injected into an ovum.|thumb|251x251px|In-vitro fertilization.]]<br />
Medical negligence in performing [https://en.wikipedia.org/wiki/In_vitro_fertilisation in-vitro fertilization] may give rise to tricky situations in which the result is misaligned with the patient's expectations and the contractual terms of the procedure. <br />
<br />
=== The challenge with upkeep costs ===<br />
An example that highlights the legal and moral difficulties surrounding a claim of wrongful in-vitro fertilization is the Singaporean case of ''ACB v. Thomson Medical Pte Ltd''.<ref name=":3">''ACB v. Thomson Medical Pte Ltd'', [https://www.elitigation.sg/gd/s/2017_SGCA_20 <nowiki>[2017] SGCA 20</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_ACB_v._Thomson §19.10.5.1]).</ref> There, the plaintiff underwent in-vitro fertilization to conceive a child with her husband. It was later discovered that her ovum had been fertilized by sperm from a stranger rather than her husband. She sued in tort and in breach of contract, seeking to recover the costs of raising the healthy baby ("upkeep costs").<ref>''ACB v. Thomson Medical Pte Ltd'', [https://www.elitigation.sg/gd/s/2017_SGCA_20 <nowiki>[2017] SGCA 20</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_ACB_v._Thomson §19.10.5.1]) at para 3.</ref> She argued that if it had not been for the alleged negligence, this baby would not have been born at all.<ref>''ACB v. Thomson Medical Pte Ltd'', [https://www.elitigation.sg/gd/s/2017_SGCA_20 <nowiki>[2017] SGCA 20</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_ACB_v._Thomson §19.10.5.1]) at para 31.</ref> <br />
<br />
The Court of Appeal of the Republic of Singapore was faced with a dilemma: If the Court refused to allow upkeep costs, the plaintiff would be left with a relatively modest award in comparison to the wrong done to her. If the Court allowed upkeep costs, that would be offensive to the baby's worth as a human being, suggesting that her existence would be a continuing source of loss to her mother.<ref>''ACB v. Thomson Medical Pte Ltd'', [https://www.elitigation.sg/gd/s/2017_SGCA_20 <nowiki>[2017] SGCA 20</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_ACB_v._Thomson §19.10.5.1]) at para 4.</ref><br />
<br />
After considering foreign authorities, the Court ultimately decided not to award upkeep costs based on two closely related reasons:<blockquote><br />
<br />
(a) The obligation to maintain one’s child is an obligation at the heart of parenthood and cannot be a legally cognisable head of loss. <br />
<br />
(b) To recognise the upkeep claim would be fundamentally inconsistent with the nature of the parent-child relationship and would place the Appellant in a position where her personal interests as a litigant would conflict with her duties as a parent.<ref>''ACB v. Thomson Medical Pte Ltd'', [https://www.elitigation.sg/gd/s/2017_SGCA_20 <nowiki>[2017] SGCA 20</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_ACB_v._Thomson §19.10.5.1]) at para 86.</ref> </blockquote><br />
<br />
=== A cognizable loss ===<br />
Still, the legitimacy of the plaintiff's loss could not be ignored. The true loss in this case was the plaintiff's injury to her interest in "genetic affinity", that is, her desire to have a child related to herself and her husband.<ref>''ACB v. Thomson Medical Pte Ltd'', [https://www.elitigation.sg/gd/s/2017_SGCA_20 <nowiki>[2017] SGCA 20</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_ACB_v._Thomson §19.10.5.1]) at para 127.</ref> Her autonomy was damaged as she lost the ability to make her own reproductive choices and the opportunity to build the family she envisioned.<ref>''ACB v. Thomson Medical Pte Ltd'', [https://www.elitigation.sg/gd/s/2017_SGCA_20 <nowiki>[2017] SGCA 20</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_ACB_v._Thomson §19.10.5.1]) at para 130.</ref> The Court importantly held that the plaintiff's loss of "genetic affinity" was cognizable at law and should be recognized as a legitimate head of damages.<ref>''ACB v. Thomson Medical Pte Ltd'', [https://www.elitigation.sg/gd/s/2017_SGCA_20 <nowiki>[2017] SGCA 20</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_ACB_v._Thomson §19.10.5.1]) at para 135.</ref> <br />
<br />
=== Damages ===<br />
While the Court declined to award the mother upkeep costs, it awarded her general damages to compensate for the injury she suffered to her interest in "genetic affinity".<ref>''ACB v. Thomson Medical Pte Ltd'', [https://www.elitigation.sg/gd/s/2017_SGCA_20 <nowiki>[2017] SGCA 20</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_ACB_v._Thomson §19.10.5.1]) at para 210.</ref> Interestingly, the Court still ascertained the sum of general damages by reference to 30% of the upkeep costs, an amount it deemed "properly reflects sufficiently the seriousness of the Appellant’s loss and is ''just, equitable, and proportionate'' in the circumstances of the case."<ref>''ACB v. Thomson Medical Pte Ltd'', [https://www.elitigation.sg/gd/s/2017_SGCA_20 <nowiki>[2017] SGCA 20</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_ACB_v._Thomson §19.10.5.1]) at para 150.</ref><br />
<br />
== Child claim of wrongful pre-natal birth ==<br />
It is considered well-established case law that health care providers owe a duty of care to infants prior to birth.<ref name=":1">''Liebig v. Guelph General Hospital'', [https://canlii.ca/t/2b69p 2010 ONCA 450] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Liebig_v._Guelph §19.10.3.1]) at paras 6'''–'''7.</ref> An infant may sue for injury sustained as a result of negligence during labour and delivery, though they only gain the legal status to sue after birth,<ref name=":1" /> and "damages are assessed only as at the date of birth”.<ref>''Liebig v. Guelph General Hospital'', [https://canlii.ca/t/2b69p 2010 ONCA 450] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Liebig_v._Guelph §19.10.3.1]) at para 7 citing ''Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.)'', [https://canlii.ca/t/1fqxr 1997 CanLII 336 (SCC)] at para 21.</ref> <br />
<br />
In ''Liebig v. Guelph General Hospital'', the infant plaintiff sued the hospital and healthcare providers for negligent maternal-fetal care immediately before and during the delivery process. The plaintiff suffered [https://en.wikipedia.org/wiki/Neonatal_encephalopathy hypoxic-ischemic encephalopathy] in the course of his birth, which led to the development of [https://en.wikipedia.org/wiki/Cerebral_palsy cerebral palsy].<ref>''Liebig v. Guelph General Hospital'', [https://canlii.ca/t/2b69p 2010 ONCA 450] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Liebig_v._Guelph §19.10.3.1]) at para 2.</ref> <br />
<br />
The hospital argued that the cases of ''Bovingdon v. Hergott'' and ''Paxton v. Ramji'' required courts to depart from precedent and adopt the position that there is no duty of care owed to an infant plaintiff in relation to the delivery process.<ref>''Liebig v. Guelph General Hospital'', [https://canlii.ca/t/2b69p 2010 ONCA 450] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Liebig_v._Guelph §19.10.3.1]) at para 9.</ref> In ''Bovingdon'', the doctor prescribed the mother a fertility drug that increased the risk of conceiving twins. She became pregnant with twins, and they were born prematurely with severe disabilities.<ref>''Bovingdon v. Hergott'', [https://canlii.ca/t/1vc5b 2008 ONCA 2] at paras 12'''–'''16.</ref> In ''Paxton'', the doctor prescribed a drug intended to treat the mother's acne, but the drug could cause birth defects in a fetus if the mother conceived while taking it. The mother later gave birth to a child who had developed disabilities due to being exposed to the drug in-utero.<ref>''Paxton v. Ramji'', [https://canlii.ca/t/215b2 2008 ONCA 697] at paras 6'''–'''9.</ref> <br />
<br />
The Ontario Court of Appeal ruled that ''Bovingdon'' and ''Paxton'' were not applicable here because they involved alleged acts of negligence that had occurred before the conception of any child.<ref name=":2">''Liebig v. Guelph General Hospital'', [https://canlii.ca/t/2b69p 2010 ONCA 450] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Liebig_v._Guelph §19.10.3.1]) at para 11.</ref> The key takeaway from those decisions is that a health care provider does not owe a duty of care to a future child if the alleged negligence took place prior to conception.<ref name=":2" /> The facts of ''Liebig'', however, fell into the category of labour and delivery cases in which a duty of care is clearly owed to the infant.<ref>''Liebig v. Guelph General Hospital'', [https://canlii.ca/t/2b69p 2010 ONCA 450] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Liebig_v._Guelph §19.10.3.1]) at para 16.</ref><br />
<br />
== Child claim of wrongful life ==<br />
{| class="wikitable" style="float:right;margin-left;10px;width:30%"<br />
! style="background-color:#F2CEE0" |In the news<br />
|-<br />
! style="background-color:#FFF5FA" |''UK decision recognizes potential wrongful life claim''<br />
|-<br />
|The High Court in London [https://www.dailymail.co.uk/news/article-10262911/Para-showjumper-sued-mothers-GP-claiming-never-born-wins-landmark-case.html ruled] that a wrongful life claim could be brought by a woman born with spina bifida.<ref>''Toombes v. Mitchell'' [https://www.bailii.org/ew/cases/EWHC/QB/2020/3506.html <nowiki>[2020] EWHC 3506</nowiki>]. </ref> The woman had alleged that had her mother's doctor not given her mother negligent advice, she would not have been born.<ref>{{Cite news|url=https://www.dailymail.co.uk/news/article-10262911/Para-showjumper-sued-mothers-GP-claiming-never-born-wins-landmark-case.html|title=Spina bifida showjumper WINS landmark legal case over her 'wrongful conception': Evie Toombes, 20, who sued her mother's GP claiming she should never have been born could win MILLIONS in damages|last=Dollimore|first=Laurence|date=1 December 2021|work=Daily Mail}}</ref> Plaintiff Evie Toombes speaks about her decision to sue [https://youtu.be/yJJEz_W15ig?si=wNsjySnfPyi51vr8 here].<ref>{{Cite web|last=This Morning|date=2 March 2022|title=The Woman Who Sued Her Mother's GP For Being Born {{!}} This Morning|url=https://youtu.be/yJJEz_W15ig?si=rmrH-FSeSi-w-Z9E|url-status=live|website=Youtube}}</ref>{{YouTube|id=yJJEz_W15ig|width=100%|height=170}} <br />
In contrast to Canadian case law, this case suggests that physicians in the UK can be liable for negligent pre-conception advice. <br />
|} <br />
A claim of wrongful life can arise when a child born with birth defects contends that they would not have been born if it had not been for the doctor's negligence.<ref>''Florence v. Benzaquen'', [https://canlii.ca/t/jh3mw 2021 ONCA 523] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Florence_v._Benzaquen §19.10.4.1]) at para 15. </ref> This category of cases raises deeply challenging questions of morality (i,e. "whether a life is worth living") and philosophy (i.e. "whether it is possible to compare a state of existence with one of non-existence").<ref>''ACB v. Thomson Medical Pte Ltd'', [https://www.elitigation.sg/gd/s/2017_SGCA_20 <nowiki>[2017] SGCA 20</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_ACB_v._Thomson §19.10.5.1]) at para 30.</ref> <br />
<br />
Such was the case in ''Florence v. Benzaquen'', where a doctor prescribed a patient fertility drugs that allegedly increased the risk of conceiving multiple fetuses. The mother conceived triplets who were subsequently born with severe disabilities. The claim was brought by the parents as well as the children, with the children asserting that they had brought the claim "in their own right".<ref>''Florence v. Benzaquen'', [https://canlii.ca/t/jh3mw 2021 ONCA 523] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Florence_v._Benzaquen §19.10.4.1]) at para 5.</ref> They argued that the doctor owed both their mother and them a duty of care, a duty he breached by prescribing a drug that could harm the mother and them, or by failing to fully inform their mother of the risks associated with the drug so that she could make an educated decision about taking it.<ref>''Florence v. Benzaquen'', [https://canlii.ca/t/jh3mw 2021 ONCA 523] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Florence_v._Benzaquen §19.10.4.1]) at paras 5, 65.</ref> <br />
<br />
The Ontario Court of Appeal decided ''Florence'' by following the Canadian case law of ''Bovingdon v. Hergott'', ''Paxton v. Ramji'', and ''Liebig v. Guelph General Hospital'', all three of which reinforce the principle that a doctor does not owe a duty of care to a future child if the alleged negligence occurred prior to the child's conception.<ref>''Florence v. Benzaquen'', [https://canlii.ca/t/jh3mw 2021 ONCA 523] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Florence_v._Benzaquen §19.10.4.1]) at para 87.</ref> <br />
<br />
=== Policy considerations ===<br />
The Court in ''Florence'' found that even though the ''Anns/Cooper'' analysis for a duty of care owed by a doctor to an unconceived child would likely meet the requirement of reasonable foreseeability, such a duty would ultimately be negated by policy concerns.<ref>''Florence v. Benzaquen'', [https://canlii.ca/t/jh3mw 2021 ONCA 523] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Florence_v._Benzaquen §19.10.4.1]) at para 89.</ref> For example, a doctor would be placed in an impossible position with conflicting interests if they owed a duty of care to their patient and to the patient’s future children.<ref>''Florence v. Benzaquen'', [https://canlii.ca/t/jh3mw 2021 ONCA 523] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Florence_v._Benzaquen §19.10.4.1]) at para 73.</ref> The motions judge had also referenced the case of ''Lacroix (Litigation Guardian of) v. Dominique'', where the Manitoba Appeal Court found that it would be contrary to public policy to recognize a duty of this sort because it would be impossible to assess [[Sandbox:Torts/Damages|damages]].<ref>''Florence v. Benzaquen'', [https://canlii.ca/t/jh3mw 2021 ONCA 523] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Florence_v._Benzaquen §19.10.4.1]) at para 17.</ref><br />
<br />
==Discussion questions==<br />
<br />
*What was the appropriate counterfactual scenario to help determine whether the doctor was a but-for cause of Arndt’s daughter’s being born with congenital injuries?<br />
*In cases of careless professional failure to advise, what is problematic about applying a pure subjective approach to causation? What is problematic about not undertaking a subjective enquiry?<br />
*In what sense is carelessly caused pregnancy a tortious injury? What jurisprudential, ethical and practical challenges arise in assessing the damage flowing from involuntary parenthood?<br />
*Do you agree with how the Court in ''ACB v. Thomson Medical Pte Ltd''<ref name=":3" /> determined damages for injury to “genetic affinity”?<br />
*What jurisprudential, ethical and practical considerations arise in determining whether a physician owes a duty of care to future children for alleged negligence that occurred prior to conception?<br />
<br />
{{DISPLAYTITLE:<span style="position: absolute; clip: rect(1px 1px 1px 1px); clip: rect(1px, 1px, 1px, 1px);">{{FULLPAGENAME}}</span>}}<br />
<references /></div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Documentation:Torts/Negligence_Unborn_children&diff=858811Documentation:Torts/Negligence Unborn children2025-04-08T18:56:17Z<p>SamuelBeswick: /* Parent claim of wrongful birth */</p>
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<div>{{Infobox Torts }}<br />
<span style="font-size:200%;">Negligence concerning unborn children</span><br>Cases of negligence concerning unborn children are generally brought against health care providers and may be advanced either by the parent or the child. These claims fall into one of several categories:<ref>{{Cite journal|last=Todd|first=Stephen|date=2005|title=Wrongful Conception, Wrongful Birth and Wrongful Life|url=http://www8.austlii.edu.au/cgi-bin/viewdoc/au/journals/SydLawRw/2005/25.html|journal=Sydney Law Review|volume=27|pages=525}}</ref> claims by a parent of wrongful conception,<ref>See e.g. ''Macfarlane and Another v. Tayside Health Board (Scotland)'', [http://www.bailii.org/uk/cases/UKHL/1999/50.html <nowiki>[1999] UKHL 50 (BAILII)</nowiki>]; ''Parkinson v. St James and Seacroft University Hospital NHS Trust'', [https://www.bailii.org/ew/cases/EWCA/Civ/2001/530.html <nowiki>[2001] EWCA Civ 530</nowiki>]; ''Rees v. Darlington Memorial Hospital NHS Trust'', [http://www.bailii.org/uk/cases/UKHL/2003/52.html <nowiki>[2003] UKHL 52</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Rees_v._Darlington_1 §19.10.1.1]).</ref> claims by a parent of wrongful birth,<ref>See e.g. ''Arndt v. Smith'', [https://canlii.ca/t/1fr0v 1997 CanLII 360 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Arndt_v._Smith §19.10.2.1]).</ref> claims by a parent of wrongful in-vitro fertilization,<ref>See e.g. ''ACB v. Thomson Medical Pte Ltd'', [https://www.elitigation.sg/gd/s/2017_SGCA_20 <nowiki>[2017] SGCA 20</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_ACB_v._Thomson §19.10.5.1]).</ref> claims by a child of wrongful pre-natal birth,<ref>See e.g. ''Liebig v. Guelph General Hospital'', [https://canlii.ca/t/2b69p 2010 ONCA 450] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Liebig_v._Guelph §19.10.3.1]).</ref> and claims by a child of wrongful life.<ref>See e.g. ''Florence v. Benzaquen'', [https://canlii.ca/t/jh3mw 2021 ONCA 523] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Florence_v._Benzaquen §19.10.4.1]); ''Lacroix (Guardian of) v. Dominique'', [https://canlii.ca/t/1fc5t 2001 MBCA 122].</ref> As with any negligence claim, a plaintiff must prove that: the defendant owed them an existing or novel [[Sandbox:Torts/Duty of care|duty of care]], the duty was [https://wiki.ubc.ca/Sandbox:Torts/Breach_of_duty_of_care breached], the plaintiff suffered [https://wiki.ubc.ca/Sandbox:Torts/Damage damage], and the defendant's negligence was the cause of the damage in [https://wiki.ubc.ca/Sandbox:Torts/Causation_in_fact fact] and in [https://wiki.ubc.ca/Sandbox:Torts/Remoteness_in_law law].<ref>''Mustapha v. Culligan of Canada Ltd.'', [https://canlii.ca/t/1wz6f 2008 SCC 27] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Mustapha_v._Culligan §17.1.2]).</ref> <br />
<br />
== Parent claim of wrongful conception ==<br />
{| class="wikitable" style="float:right;margin-left;10px;width:30%"<br />
! style="background-color:#CEE0F2" |Medical negligence and unborn children<br />
|-<br />
|In this [https://podcasts.apple.com/gb/podcast/kings-chambers-debrief-episode-8-wrongful-birth/id1388312435?i=1000445956363 episode] of Kings Chambers Podcast, the hosts discuss several key cases of negligence concerning unborn children,<ref>{{Cite web|last=Kings Chambers Podcast|date=August 2019|title=Kings Chambers Debrief Episode 8 - Wrongful Birth|url=https://podcasts.apple.com/gb/podcast/kings-chambers-debrief-episode-8-wrongful-birth/id1388312435?i=1000445956363|url-status=live|website=Apple Podcasts}}</ref> including ''McFarlane v. Tayside Health Board'',<ref>''Macfarlane and Another v. Tayside Health Board (Scotland)'', [http://www.bailii.org/uk/cases/UKHL/1999/50.html <nowiki>[1999] UKHL 50 (BAILII)</nowiki>].</ref> ''Rees v. Darlington Memorial Hospital NHS Trust'',<ref>''Rees v. Darlington Memorial Hospital NHS Trust'', [http://www.bailii.org/uk/cases/UKHL/2003/52.html <nowiki>[2003] UKHL 52</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Rees_v._Darlington_1 §19.10.1.1]).</ref> and ''Khan v. Meadows''.<ref>''Khan v. Meadows'', [https://www.bailii.org/uk/cases/UKSC/2021/21.html <nowiki>[2021] UKSC 21</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Khan_v._Meadows §19.4.3.2]),</ref><br />
{{#widget:Iframe<br />
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Wrongful conception cases are premised on a claim that but for a doctor's negligent performance of a sterilization procedure, the mother would not have conceived. Plaintiffs often sue to recover costs associated with raising the unplanned child. <br />
<br />
=== Suing for costs of a healthy baby ===<br />
Courts have ruled that a parent cannot recover for the costs associated with raising a normal, healthy child. In ''McFarlane v. Tayside Health Board'', a couple sued the Health Board alleging they had been negligently advised that the husband was infertile following a vasectomy operation. Believing this to be true, the couple engaged in intercourse and unexpectedly conceived a child together. They sought to recover the costs of maintaining that child. The House of Lords rejected the claim, holding that the law should treat a healthy baby as a blessing and not a detriment. However, the plaintiffs were still awarded £5,000 in damages for the loss of their autonomy.<ref>''Macfarlane and Another v. Tayside Health Board (Scotland)'', [http://www.bailii.org/uk/cases/UKHL/1999/50.html <nowiki>[1999] UKHL 50 (BAILII)</nowiki>].</ref><br />
<br />
=== Suing for costs of a baby's disabilities ===<br />
A different conclusion has been reached in cases where the unplanned child is not healthy. In ''Parkinson v. St James and Seacroft University Hospital NHS Trust,'' the mother had received a negligently performed sterilization procedure and subsequently gave birth to a child with disabilities that the mother believed would be lifelong.<ref>''Parkinson v. St James and Seacroft University Hospital NHS Trust'', [https://www.bailii.org/ew/cases/EWCA/Civ/2001/530.html <nowiki>[2001] EWCA Civ 530</nowiki>] at paras 2'''–'''10.</ref> The Court of Appeal upheld the lower court's decision that while the mother could not recover the basic costs of raising the unplanned child, she could recover the additional costs of providing care for the child's disabilities.<ref>''Parkinson v. St James and Seacroft University Hospital NHS Trust'', [https://www.bailii.org/ew/cases/EWCA/Civ/2001/530.html <nowiki>[2001] EWCA Civ 530</nowiki>] at paras 1, 51, 95.</ref><br />
<br />
=== Suing for costs of a mother's disabilities ===<br />
A couple years later, yet another variant of the unplanned child claim came before the House of Lords, this time involving the parent's disability. In ''Rees v. Darlington Memorial Hospital NHS Trust'', the plaintiff had undergone a sterilization procedure because she believed her visual disability rendered her unfit to be an effective caretaker.<ref>''Rees v. Darlington Memorial Hospital NHS Trust'', [http://www.bailii.org/uk/cases/UKHL/2003/52.html <nowiki>[2003] UKHL 52</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Rees_v._Darlington_1 §19.10.1.1]) at para 1.</ref> The procedure was performed negligently, and she gave birth to a healthy baby. The House of Lords overturned the Court of Appeal's holding that the plaintiff was entitled to recover the additional costs attributable to her disability, but it awarded her a lump sum on the grounds that she still suffered a legal wrong as a result of the defendant's negligence and lost the opportunity to live her life in the way that she had planned.<ref>''Rees v. Darlington Memorial Hospital NHS Trust'', [http://www.bailii.org/uk/cases/UKHL/2003/52.html <nowiki>[2003] UKHL 52</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Rees_v._Darlington_1 §19.10.1.1]) at para 8.</ref><br />
Referencing the decision in ''Parkinson'', Lord Bingham made the following points:<blockquote>(1) While I have every sympathy with the Court of Appeal’s view that Mrs Parkinson should be compensated, it is arguably anomalous that the defendant’s liability should be related to a disability which the doctor’s negligence did not cause and not to the birth which it did. <br />
<br />
...<br />
<br />
(3) It is undesirable that parents, in order to recover compensation, should be encouraged to portray either their children or themselves as disabled. ...<br />
<br />
(4) In a state such as ours, which seeks to make public provision for the consequences of disability, the quantification of additional costs attributable to disability, whether of the parent or the child, is a task of acute difficulty. This is highlighted by the inability of the claimant in this appeal to give any realistic indication of the additional costs she seeks to recover.<ref>''Rees v. Darlington Memorial Hospital NHS Trust'', [http://www.bailii.org/uk/cases/UKHL/2003/52.html <nowiki>[2003] UKHL 52</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Rees_v._Darlington_1 §19.10.1.1]) at para 9.</ref></blockquote>The point on the difficulty of calculating damages was emphasized in the Canadian case ''PP v. DD'', where the father of an unplanned, healthy child sued the mother for the emotional and economic costs of raising the child.<ref>''PP v. DD'', [https://canlii.ca/t/h03wd 2017 ONCA 180] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_PP_v._DD §6.3.2.2]).</ref> The Ontario Court of Appeal noted that calculating the plaintiff's purported loss is especially challenging where the claim is brought by the father, someone who shares in the legal and moral responsibility of maintaining the child.<ref>''PP v. DD'', [https://canlii.ca/t/h03wd 2017 ONCA 180] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_PP_v._DD_1 §19.10.1.2]) at paras 53-54.</ref><br />
<br />
== Parent claim of wrongful birth ==<br />
[[File:Echografie2.jpg|alt=Ultrasound image of a fetus in the womb.|thumb]]<br />
Another category of claims concerning unplanned children, referred to as "wrongful birth" cases, relates to a plaintiff's assertion that they would have terminated the pregnancy had it not been for the defendant's negligent act.<ref>''Parkinson v. St James and Seacroft University Hospital NHS Trust'', [https://www.bailii.org/ew/cases/EWCA/Civ/2001/530.html <nowiki>[2001] EWCA Civ 530</nowiki>] at para 46.</ref><ref>{{Cite journal|last=Ramey|first=E. Travis|date=2025|title=Wrongful Birth After Dobbs and the Limits of Tort Law in Areas of Dissensus|url=https://ssrn.com/abstract=5124741|journal=103 Neb. L. Rev. 459}}</ref> <br />
<br />
In ''Arndt v. Smith'', the plaintiff contracted chickenpox, and the fetus was injured by the virus during the pregnancy.<ref name=":0">''Arndt v. Smith'', [https://canlii.ca/t/1fr0v 1997 CanLII 360 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Arndt_v._Smith §19.10.2.1]) at para 31.</ref> The plaintiff alleged that if her doctor had properly advised her of the risk her condition posed to the fetus, she would have had an abortion.<ref name=":0" /> She sued for the cost of raising her child.<ref name=":0" /> However, the plaintiff's claim failed on causation. The Supreme Court of Canada held that the plaintiff could not prove on a balance of probabilities that she would have actually opted to terminate the pregnancy.<ref>''Arndt v. Smith'', [https://canlii.ca/t/1fr0v 1997 CanLII 360 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Arndt_v._Smith §19.10.2.1]) at para 72.</ref> <br />
<br />
The central issue of the causation analysis was which counterfactual the Court should apply: what the plaintiff would have done had she been properly informed, or what a hypothetical reasonable person would have done?<ref>''Arndt v. Smith'', [https://canlii.ca/t/1fr0v 1997 CanLII 360 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Arndt_v._Smith §19.10.2.1]) at para 39.</ref> Justice McLachlin, concurring in part, found that the proper approach is to evaluate the the plaintiff's assertion of what she would have done by reference to her circumstances at the time she would have made her choice.<ref>''Arndt v. Smith'', [https://canlii.ca/t/1fr0v 1997 CanLII 360 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Arndt_v._Smith §19.10.2.1]) at para 42.</ref> In other words, the test incorporates both subjective and objective elements. A judge should ask what the plaintiff in question would have done, but the reasonableness of her choice must be considered with regard to objective evidence, such as her attitudes at the time of the decision and the medical advice she would have received if the doctor had discharged the duty of care.<ref>''Arndt v. Smith'', [https://canlii.ca/t/1fr0v 1997 CanLII 360 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Arndt_v._Smith §19.10.2.1]) at paras 44, 55.</ref><br />
<br />
The Court's majority also emphasized that the test must still account for the plaintiff's own fears and beliefs because "[i]t is important to include some subjective aspects in the assessment of what the reasonable person in the position of the plaintiff would have done if all the risks had been disclosed."<ref>''Arndt v. Smith'', [https://canlii.ca/t/1fr0v 1997 CanLII 360 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Arndt_v._Smith §19.10.2.1]) at paras 44, 55.</ref> With this principle in mind, the Court was of the view that a reasonable person in the plaintiff's position would not have chosen to have an abortion simply because of a small risk posed to the fetus by the chickenpox virus.<ref>''Arndt v. Smith'', [https://canlii.ca/t/1fr0v 1997 CanLII 360 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Arndt_v._Smith §19.10.2.1]) at para 18.</ref> <br />
<br />
== Parent claim of wrongful in-vitro fertilization ==<br />
[[File:InVitroFertilization.jpg|alt=A blue microscopic image of intracytoplasmic sperm injection (in-vitro fertilization) in why a sperm is medically injected into an ovum.|thumb|251x251px|In-vitro fertilization.]]<br />
Medical negligence in performing [https://en.wikipedia.org/wiki/In_vitro_fertilisation in-vitro fertilization] may give rise to tricky situations in which the result is misaligned with the patient's expectations and the contractual terms of the procedure. <br />
<br />
=== The challenge with upkeep costs ===<br />
An example that highlights the legal and moral difficulties surrounding a claim of wrongful in-vitro fertilization is the Singaporean case of ''ACB v. Thomson Medical Pte Ltd''.<ref name=":3">''ACB v. Thomson Medical Pte Ltd'', [https://www.elitigation.sg/gd/s/2017_SGCA_20 <nowiki>[2017] SGCA 20</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_ACB_v._Thomson §19.10.5.1]).</ref> There, the plaintiff underwent in-vitro fertilization to conceive a child with her husband. It was later discovered that her ovum had been fertilized by sperm from a stranger rather than her husband. She sued in tort and in breach of contract, seeking to recover the costs of raising the healthy baby ("upkeep costs").<ref>''ACB v. Thomson Medical Pte Ltd'', [https://www.elitigation.sg/gd/s/2017_SGCA_20 <nowiki>[2017] SGCA 20</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_ACB_v._Thomson §19.10.5.1]) at para 3.</ref> She argued that if it had not been for the alleged negligence, this baby would not have been born at all.<ref>''ACB v. Thomson Medical Pte Ltd'', [https://www.elitigation.sg/gd/s/2017_SGCA_20 <nowiki>[2017] SGCA 20</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_ACB_v._Thomson §19.10.5.1]) at para 31.</ref> <br />
<br />
The Court of Appeal of the Republic of Singapore was faced with a dilemma: If the Court refused to allow upkeep costs, the plaintiff would be left with a relatively modest award in comparison to the wrong done to her. If the Court allowed upkeep costs, that would be offensive to the baby's worth as a human being, suggesting that her existence would be a continuing source of loss to her mother.<ref>''ACB v. Thomson Medical Pte Ltd'', [https://www.elitigation.sg/gd/s/2017_SGCA_20 <nowiki>[2017] SGCA 20</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_ACB_v._Thomson §19.10.5.1]) at para 4.</ref><br />
<br />
After considering foreign authorities, the Court ultimately decided not to award upkeep costs based on two closely related reasons:<blockquote><br />
<br />
(a) The obligation to maintain one’s child is an obligation at the heart of parenthood and cannot be a legally cognisable head of loss. <br />
<br />
(b) To recognise the upkeep claim would be fundamentally inconsistent with the nature of the parent-child relationship and would place the Appellant in a position where her personal interests as a litigant would conflict with her duties as a parent.<ref>''ACB v. Thomson Medical Pte Ltd'', [https://www.elitigation.sg/gd/s/2017_SGCA_20 <nowiki>[2017] SGCA 20</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_ACB_v._Thomson §19.10.5.1]) at para 86.</ref> </blockquote><br />
<br />
=== A cognizable loss ===<br />
Still, the legitimacy of the plaintiff's loss could not be ignored. The true loss in this case was the plaintiff's injury to her interest in "genetic affinity", that is, her desire to have a child related to herself and her husband.<ref>''ACB v. Thomson Medical Pte Ltd'', [https://www.elitigation.sg/gd/s/2017_SGCA_20 <nowiki>[2017] SGCA 20</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_ACB_v._Thomson §19.10.5.1]) at para 127.</ref> Her autonomy was damaged as she lost the ability to make her own reproductive choices and the opportunity to build the family she envisioned.<ref>''ACB v. Thomson Medical Pte Ltd'', [https://www.elitigation.sg/gd/s/2017_SGCA_20 <nowiki>[2017] SGCA 20</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_ACB_v._Thomson §19.10.5.1]) at para 130.</ref> The Court importantly held that the plaintiff's loss of "genetic affinity" was cognizable at law and should be recognized as a legitimate head of damages.<ref>''ACB v. Thomson Medical Pte Ltd'', [https://www.elitigation.sg/gd/s/2017_SGCA_20 <nowiki>[2017] SGCA 20</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_ACB_v._Thomson §19.10.5.1]) at para 135.</ref> <br />
<br />
=== Damages ===<br />
While the Court declined to award the mother upkeep costs, it awarded her general damages to compensate for the injury she suffered to her interest in "genetic affinity".<ref>''ACB v. Thomson Medical Pte Ltd'', [https://www.elitigation.sg/gd/s/2017_SGCA_20 <nowiki>[2017] SGCA 20</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_ACB_v._Thomson §19.10.5.1]) at para 210.</ref> Interestingly, the Court still ascertained the sum of general damages by reference to 30% of the upkeep costs, an amount it deemed "properly reflects sufficiently the seriousness of the Appellant’s loss and is ''just, equitable, and proportionate'' in the circumstances of the case."<ref>''ACB v. Thomson Medical Pte Ltd'', [https://www.elitigation.sg/gd/s/2017_SGCA_20 <nowiki>[2017] SGCA 20</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_ACB_v._Thomson §19.10.5.1]) at para 150.</ref><br />
<br />
== Child claim of wrongful pre-natal birth ==<br />
It is considered well-established case law that health care providers owe a duty of care to infants prior to birth.<ref name=":1">''Liebig v. Guelph General Hospital'', [https://canlii.ca/t/2b69p 2010 ONCA 450] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Liebig_v._Guelph §19.10.3.1]) at paras 6'''–'''7.</ref> An infant may sue for injury sustained as a result of negligence during labour and delivery, though they only gain the legal status to sue after birth,<ref name=":1" /> and "damages are assessed only as at the date of birth”.<ref>''Liebig v. Guelph General Hospital'', [https://canlii.ca/t/2b69p 2010 ONCA 450] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Liebig_v._Guelph §19.10.3.1]) at para 7 citing ''Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.)'', [https://canlii.ca/t/1fqxr 1997 CanLII 336 (SCC)] at para 21.</ref> <br />
<br />
In ''Liebig v. Guelph General Hospital'', the infant plaintiff sued the hospital and healthcare providers for negligent maternal-fetal care immediately before and during the delivery process. The plaintiff suffered [https://en.wikipedia.org/wiki/Neonatal_encephalopathy hypoxic-ischemic encephalopathy] in the course of his birth, which led to the development of [https://en.wikipedia.org/wiki/Cerebral_palsy cerebral palsy].<ref>''Liebig v. Guelph General Hospital'', [https://canlii.ca/t/2b69p 2010 ONCA 450] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Liebig_v._Guelph §19.10.3.1]) at para 2.</ref> <br />
<br />
The hospital argued that the cases of ''Bovingdon v. Hergott'' and ''Paxton v. Ramji'' required courts to depart from precedent and adopt the position that there is no duty of care owed to an infant plaintiff in relation to the delivery process.<ref>''Liebig v. Guelph General Hospital'', [https://canlii.ca/t/2b69p 2010 ONCA 450] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Liebig_v._Guelph §19.10.3.1]) at para 9.</ref> In ''Bovingdon'', the doctor prescribed the mother a fertility drug that increased the risk of conceiving twins. She became pregnant with twins, and they were born prematurely with severe disabilities.<ref>''Bovingdon v. Hergott'', [https://canlii.ca/t/1vc5b 2008 ONCA 2] at paras 12'''–'''16.</ref> In ''Paxton'', the doctor prescribed a drug intended to treat the mother's acne, but the drug could cause birth defects in a fetus if the mother conceived while taking it. The mother later gave birth to a child who had developed disabilities due to being exposed to the drug in-utero.<ref>''Paxton v. Ramji'', [https://canlii.ca/t/215b2 2008 ONCA 697] at paras 6'''–'''9.</ref> <br />
<br />
The Ontario Court of Appeal ruled that ''Bovingdon'' and ''Paxton'' were not applicable here because they involved alleged acts of negligence that had occurred before the conception of any child.<ref name=":2">''Liebig v. Guelph General Hospital'', [https://canlii.ca/t/2b69p 2010 ONCA 450] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Liebig_v._Guelph §19.10.3.1]) at para 11.</ref> The key takeaway from those decisions is that a health care provider does not owe a duty of care to a future child if the alleged negligence took place prior to conception.<ref name=":2" /> The facts of ''Liebig'', however, fell into the category of labour and delivery cases in which a duty of care is clearly owed to the infant.<ref>''Liebig v. Guelph General Hospital'', [https://canlii.ca/t/2b69p 2010 ONCA 450] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Liebig_v._Guelph §19.10.3.1]) at para 16.</ref><br />
<br />
== Child claim of wrongful life ==<br />
{| class="wikitable" style="float:right;margin-left;10px;width:30%"<br />
! style="background-color:#F2CEE0" |In the news<br />
|-<br />
! style="background-color:#FFF5FA" |''UK decision recognizes potential wrongful life claim''<br />
|-<br />
|The High Court in London [https://www.dailymail.co.uk/news/article-10262911/Para-showjumper-sued-mothers-GP-claiming-never-born-wins-landmark-case.html ruled] that a wrongful life claim could be brought by a woman born with spina bifida.<ref>''Toombes v. Mitchell'' [https://www.bailii.org/ew/cases/EWHC/QB/2020/3506.html <nowiki>[2020] EWHC 3506</nowiki>]. </ref> The woman had alleged that had her mother's doctor not given her mother negligent advice, she would not have been born.<ref>{{Cite news|url=https://www.dailymail.co.uk/news/article-10262911/Para-showjumper-sued-mothers-GP-claiming-never-born-wins-landmark-case.html|title=Spina bifida showjumper WINS landmark legal case over her 'wrongful conception': Evie Toombes, 20, who sued her mother's GP claiming she should never have been born could win MILLIONS in damages|last=Dollimore|first=Laurence|date=1 December 2021|work=Daily Mail}}</ref> Plaintiff Evie Toombes speaks about her decision to sue [https://youtu.be/yJJEz_W15ig?si=wNsjySnfPyi51vr8 here].<ref>{{Cite web|last=This Morning|date=2 March 2022|title=The Woman Who Sued Her Mother's GP For Being Born {{!}} This Morning|url=https://youtu.be/yJJEz_W15ig?si=rmrH-FSeSi-w-Z9E|url-status=live|website=Youtube}}</ref>{{YouTube|id=yJJEz_W15ig|width=100%|height=170}} <br />
In contrast to Canadian case law, this case suggests that physicians in the UK can be liable for negligent pre-conception advice. <br />
|} <br />
A claim of wrongful life can arise when a child born with birth defects contends that they would not have been born if it had not been for the doctor's negligence.<ref>''Florence v. Benzaquen'', [https://canlii.ca/t/jh3mw 2021 ONCA 523] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Florence_v._Benzaquen §19.10.4.1]) at para 15. </ref> This category of cases raises deeply challenging questions of morality (i,e. "whether a life is worth living") and philosophy (i.e. "whether it is possible to compare a state of existence with one of non-existence").<ref>''ACB v. Thomson Medical Pte Ltd'', [https://www.elitigation.sg/gd/s/2017_SGCA_20 <nowiki>[2017] SGCA 20</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_ACB_v._Thomson §19.10.5.1]) at para 30.</ref> <br />
<br />
Such was the case in ''Florence v. Benzaquen'', where a doctor prescribed a patient fertility drugs that allegedly increased the risk of conceiving multiple fetuses. The mother conceived triplets who were subsequently born with severe disabilities. The claim was brought by the parents as well as the children, with the children asserting that they had brought the claim "in their own right".<ref>''Florence v. Benzaquen'', [https://canlii.ca/t/jh3mw 2021 ONCA 523] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Florence_v._Benzaquen §19.10.4.1]) at para 5.</ref> They argued that the doctor owed both their mother and them a duty of care, a duty he breached by prescribing a drug that could harm the mother and them, or by failing to fully inform their mother of the risks associated with the drug so that she could make an educated decision about taking it.<ref>''Florence v. Benzaquen'', [https://canlii.ca/t/jh3mw 2021 ONCA 523] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Florence_v._Benzaquen §19.10.4.1]) at paras 5, 65.</ref> <br />
<br />
The Ontario Court of Appeal decided ''Florence'' by following the Canadian case law of ''Bovingdon v. Hergott'', ''Paxton v. Ramji'', and ''Liebig v. Guelph General Hospital'', all three of which reinforce the principle that a doctor does not owe a duty of care to a future child if the alleged negligence occurred prior to the child's conception.<ref>''Florence v. Benzaquen'', [https://canlii.ca/t/jh3mw 2021 ONCA 523] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Florence_v._Benzaquen §19.10.4.1]) at para 87.</ref> <br />
<br />
=== Policy considerations ===<br />
The Court in ''Florence'' found that even though the ''Anns/Cooper'' analysis for a duty of care owed by a doctor to an unconceived child would likely meet the requirement of reasonable foreseeability, such a duty would ultimately be negated by policy concerns.<ref>''Florence v. Benzaquen'', [https://canlii.ca/t/jh3mw 2021 ONCA 523] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Florence_v._Benzaquen §19.10.4.1]) at para 89.</ref> For example, a doctor would be placed in an impossible position with conflicting interests if they owed a duty of care to their patient and to the patient’s future children.<ref>''Florence v. Benzaquen'', [https://canlii.ca/t/jh3mw 2021 ONCA 523] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Florence_v._Benzaquen §19.10.4.1]) at para 73.</ref> The motions judge had also referenced the case of ''Lacroix (Litigation Guardian of) v. Dominique'', where the Manitoba Appeal Court found that it would be contrary to public policy to recognize a duty of this sort because it would be impossible to assess [[Sandbox:Torts/Damages|damages]].<ref>''Florence v. Benzaquen'', [https://canlii.ca/t/jh3mw 2021 ONCA 523] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Florence_v._Benzaquen §19.10.4.1]) at para 17.</ref><br />
<br />
==Discussion questions==<br />
<br />
*What was the appropriate counterfactual scenario to help determine whether the doctor was a but-for cause of Arndt’s daughter’s being born with congenital injuries?<br />
*In cases of careless professional failure to advise, what is problematic about applying a pure subjective approach to causation? What is problematic about not undertaking a subjective enquiry?<br />
*In what sense is carelessly caused pregnancy a tortious injury? What jurisprudential, ethical and practical challenges arise in assessing the damage flowing from involuntary parenthood?<br />
*Do you agree with how the Court in ''ACB v. Thomson Medical Pte Ltd''<ref name=":3" /> determined damages for injury to “genetic affinity”?<br />
*What jurisprudential, ethical and practical considerations arise in determining whether a physician owes a duty of care to future children for alleged negligence that occurred prior to conception?<br />
<br />
{{DISPLAYTITLE:<span style="position: absolute; clip: rect(1px 1px 1px 1px); clip: rect(1px, 1px, 1px, 1px);">{{FULLPAGENAME}}</span>}}<br />
<references /></div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Documentation:Torts/Introduction&diff=858810Documentation:Torts/Introduction2025-04-08T18:49:26Z<p>SamuelBeswick: </p>
<hr />
<div>{{ Infobox Torts }}<br />
<span style="font-size:200%;">{{SUBPAGENAME}}</span><br><br />
<br />
A [https://en.wikipedia.org/wiki/Tort tort] is an injurious wrong for which a person may be held civilly liable to another.<ref name=":0">{{Cite journal|last=Beswick|first=Samuel|date=2025|title=The Cause of Action in Ahluwalia v. Ahluwalia|url=https://ssrn.com/abstract=5128861|journal=Advocates' Quarterly}}</ref> The common law recognizes dozens of different types of torts, the features of which vary and can be categorized in different ways. <br />
<br />
Tort suits are [https://www.justice.gc.ca/eng/csj-sjc/just/08.html civil claims] filed by plaintiffs/claimants against defendants. In response to a tort suit a defendant may avoid liability by ''[[Sandbox:Torts/Denials|denying]]'' having done anything wrongful to the plaintiff or by [https://wiki.ubc.ca/Sandbox:Torts/Defences ''defending''] their conduct as justified in the circumstances. When a court finds a defendant liable, the plaintiff is entitled to a [[Sandbox:Torts/Remedies|remedial order]] against the defendant, typically an order to pay [[Sandbox:Torts/Damages|damages]] (money) but sometimes an order of [[Sandbox:Torts/Injunctions|injunction]] (to stop doing something harmful). <br />
<br />
== Tort law's place in the legal system ==<br />
{| class="wikitable" style="float:right;margin-left;10px;width:40%"<br />
! style="background-color:#CEE0F2" |What is Torts? And what Torts is not<br />
|-<br />
|{{YouTube|id=jQ6smN3lcnY|width=358|height=201}}<br />
[https://onlinelaw.wcl.american.edu/legal-studies/faculty/lindsay-wiley/ Professor Lindsay Wiley] of the American University Washington College of Law introduces principles of common law torts '''''in the United States''''', in an informative video hosted by the University of Utah S.J. Quinney College of Law's [https://www.youtube.com/@centerforinnovationinlegal3204/ Center for Innovation in Legal Education].<ref>{{Cite web|last=Center for Innovation in Legal Education|first=|date=30 July 2014|title=Episode 1.1: What is Torts? And what Torts is not.|url=https://www.youtube.com/watch?v=jQ6smN3lcnY|url-status=live|archive-url=|archive-date=|access-date=|website=YouTube}}</ref><br />
|}<br />
Tort law is a branch of [https://en.wikipedia.org/wiki/Private_law private law] that recognizes and responds to civil wrongdoing. It is part of a broader legal system that governs our relationships with each other and with our government. <br />
<br />
=== Contract law ===<br />
The [https://en.wikipedia.org/wiki/Contract law of contract] protects parties' interests in making and keeping agreements. A claim in breach of contract concerns the defendant's violation of an agreement entered into with the plaintiff. Even though breach of contract can be considered a civil wrong, it is not usually considered to be a tort. Tort claims typically do not arise from any prior agreement between the parties. Tort cases often (although certainly not always) involve parties who have never met each other prior to the defendant's injuring of the plaintiff. <br />
<br />
=== Restitution and unjust enrichment ===<br />
The law of [https://en.wikipedia.org/wiki/Restitution_and_unjust_enrichment unjust enrichment] protects plaintiffs' interests in getting back benefits they have been unjustly deprived of. Unlike a claim in tort, a claim in unjust enrichment does not depend upon proof of wrongdoing. Rather than showing that the defendant has wronged them in some way, the unjust enrichment plaintiff must show that the defendant was enriched at their expense in a way that the law does not permit. Whereas the damages remedy in tort typically focuses on restoring to the plaintiff what they have ''lost'' due to the defendant's conduct, the restitution remedy for unjust enrichment focuses on taking back from the defendant what they have ''gained'' from the plaintiff. <br />
<br />
=== Property law ===<br />
The [https://en.wikipedia.org/wiki/Property_law law of property] defines and establishes people's legal relationship with property.<ref>{{Cite web|last=|first=|date=|title=Land and Property in Canada’s Political Economy|url=https://www.opensourcelaw.ca/courses/property/|url-status=live|archive-url=|archive-date=|access-date=|website=Open Source Law}}</ref> Tort law empowers plaintiffs to seek recourse against people who interfere with their property in certain ways, for example, by [[Sandbox:Torts/Intentional interference with land|trespassing]] onto their land. <br />
<br />
=== Criminal law ===<br />
Both [http://criminalnotebook.ca/ criminal law] and tort law respond to wrongdoing.<ref>Department of Justice Canada, "Civil and Criminal Cases" in ''Canada's System of Justice'' (2015), https://www.justice.gc.ca/eng/csj-sjc/just/08.html</ref> However, when a crime is committed the state ([https://en.wikipedia.org/wiki/The_Crown the Crown] in Canada) has carriage of the prosecution, the rationale being that a crime violates an obligation that is owed to all of society, not just the injured individual.<ref>{{Cite book|url=https://www.canlii.org/en/commentary/doc/2023CanLIIDocs316#!fragment/zoupio-_Tocpdf_bk_1/BQCwhgziBcwMYgK4DsDWszIQewE4BUBTADwBdoAvbRABwEtsBaAfX2zhoBMAzZgI1TMAjAEoANMmylCEAIqJCuAJ7QA5KrERCYXAnmKV6zdt0gAynlIAhFQCUAogBl7ANQCCAOQDC9saTB80KTsIiJAA|title=Criminal Law: Canadian Law, Indigenous Laws & Critical Perspectives, 2023 CanLIIDocs 316|last=|first=|publisher=Canadian Legal Information Institute|year=2023|isbn=|editor-last=Perrin|editor-first=Benjamin|location=Ottawa|pages=|editor-last2=Milward|editor-first2=David|editor-last3=Lawrence|editor-first3=Michelle|editor-last4=McCallum|editor-first4=Myrna}}</ref> Tort law is about addressing personal wrongs committed to people by others. It is only the injured party who is entitled to sue the person who injured them. While there may be so-called “[https://en.wikipedia.org/wiki/Victimless_crime victimless crimes],” there are no victimless torts.<br />
<br />
=== Constitutional and public law ===<br />
Whereas tort law concerns (horizontal) relationships between people in society, [https://en.wikipedia.org/wiki/Public_law public law] concerns the (vertical) relationships between people and their government.<ref>{{Cite book|url=https://www.canlii.org/en/commentary/doc/2022CanLIIDocs1392#!fragment/zoupio-_Toc114228746/BQCwhgziBcwMYgK4DsDWszIQewE4BUBTADwBdoAvbRABwEtsBaAfX2zgEYOAWAJl4AcAdm4A2AJQAaZNlKEIARUSFcAT2gByDZIiEwuBEpXqtOvQZABlPKQBC6gEoBRADJOAagEEAcgGEnkqRgAEbQpOzi4kA|title=The Canadian Constitutional Law Open Access Casebook, 2022 CanLIIDocs 1392|publisher=Canadian Legal Information Institute|year=2022|isbn=|editor-last=Kislowicz|editor-first=Howard|location=|pages=|editor-last2=Lazare|editor-first2=Jodi|editor-last3=Danay|editor-first3=Robert}}</ref> Many laws, such as the ''[https://en.wikipedia.org/wiki/Canadian_Charter_of_Rights_and_Freedoms Canadian Charter of Rights and Freedoms],'' directly bind only the government and officials, not private individuals. Tort law, by contrast, presumptively applies to everyone. Certain actions of government officers can be both a tort and a public law ''Charter'' violation. For example, a police officer who attacks, detains and searches an innocent person without lawful authority both commits the torts of battery and false imprisonment as well as breaches the ''Charter''.<ref>''Elmardy v. Toronto Police Services Board'', [https://canlii.ca/t/h314g 2017 ONSC 2074].</ref><br />
<br />
== Categories of tort concepts ==<br />
<br />
Lawyers often find it helpful to think about legal doctrines in terms of categories. There is no consensus about the best way to categorize legal concepts. <br />
<br />
Tort law is often categorized in terms of the [https://www.youtube.com/watch?v=f6TUiejBILE&list=PLpbtRdN7xWUd2Mjw1haKHAu_g81xK0v72&index=3&t=236s three main types of tort liability]: intentional torts, negligence and strict liability. When we categorize tort law in this way we are distinguishing tortious concepts based on the degree of the defendant's responsibility for their conduct. Tort law concepts can be categorized in other ways, as the following table illustrates. <br />
{| class="wikitable"<br />
|+<br />
!Conceptual feature<br />
!Corresponding categories (and examples of causes of action)<br />
|-<br />
|The plaintiff’s protected interest<br />
|Bodily integrity (trespass to the person, negligence) • personal dignity (invasion of privacy, defamation, harassment) • mental health (intentional infliction of mental suffering, negligent infliction of mental injury) • personal property (trespass to chattels, conversion, detinue) • real property (trespass to land, nuisance) • economic wealth (business torts, negligent misrepresentation, negligently causing pure economic loss)<br />
|-<br />
|The type of damage the plaintiff must prove<br />
|Torts that are actionable ''per se'' (trespass to the person, trespass to land, trespass to chattels, defamation) • torts that are actionable upon proof of damage (negligence, nuisance, intrusion upon seclusion)<br />
|-<br />
|The type of damage the plaintiff suffers<br />
|Physical injury (battery, negligence) • mental injury (intentional infliction of mental suffering, negligent infliction of mental injury) loss of liberty (false imprisonment) • loss of privacy (invasion of privacy) • reputational harm (defamation) • property injury (trespass to land and chattels, nuisance) • economic loss<br />
|-<br />
|The defendant's responsibility<br />
|Intentional harmful conduct (intentional torts) • negligent harmful conduct (negligence torts) • non-careless harmful conduct (strict liability torts)<br />
|-<br />
|The defendant's conduct<br />
|Physical actions • omissions to act • statements • uses of property<br />
|-<br />
|The nature of the parties<br />
|Individuals • public authorities • professionals • companies • other organizations<br />
|}<br />
<br />
== Pleading a tort action ==<br />
<br />
The early civil procedure of the [https://en.wikipedia.org/wiki/Form_of_action writ system] influenced the development of our law today. The writs were forms ("forms of action") provided by court clerks that standardized legal pleadings and acted as commands of the Sovereign. Defendants were constrained by the parameters of the writ in order to plead their complaints.<ref>Donahue, Charles Jr (2017). [https://www.canlii.org/en/commentary/doc/2017CanLIIDocs388#!fragment//BQCwhgziBcwMYgK4DsDWszIQewE4BUBTADwBdoByCgSgBpltTCIBFRQ3AT0otokLC4EbDtyp8BQkAGU8pAELcASgFEAMioBqAQQByAYRW1SYAEbRS2ONWpA "The Modern Laws of Both Tort and Contract: Fourteenth Century Beginnings Keynotes, 2017 CanLIIDocs 388"]. ''Manitoba Law Journal''. '''40''' (1): 9–12, 17, 25–26 ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#1_3_1__The_modern_law_of_tort__fourteenth_century_beginnings_ §1.3.1]).</ref> This presented a problem for plaintiffs with novel complaints. <br />
<br />
The writ system went out of practice by the end of the 19th century and was replaced by the practice of pleading facts that courts recognize as tortious, rather than pleading legal actions provided in established forms.<ref name=":0" /> Thus today ''we plead facts, not law''.<ref>''Bell v Lever Brothers Ltd'' [https://www.iclr.co.uk/document/1890228615/casereport_89541/html <nowiki>[1931] 1 K.B. 557</nowiki>] (CA), 582–583</ref><ref>Law Reform Commission of British Columbia (November 1992). [https://www.canlii.org/en/commentary/doc/1992CanLIIDocs120#!fragment/zoupio-_Tocpdf_bk_1/BQCwhgziBcwMYgK4DsDWszIQewE4BUBTADwBdoAvbRABwEtsBaAfX2zhoBMAzZgI1TMAjAEoANMmylCEAIqJCuAJ7QA5KrERCYXAnmKV6zdt0gAynlIAhFQCUAogBl7ANQCCAOQDC9saTB80KTsIiJAA "Report on Wrongful Interference with Goods"]. ''LRC''. '''127''': 32–34 ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#!fragment/zoupio-_Toc126594697/BQCwhgziBcwMYgK4DsDWszIQewE4BUBTADwBdoAvbRABwEtsBaAfX2zgEYAmANgFYAnABYeAgOwBKADTJspQhACKiQrgCe0AOSapEQmFwJlqjdt37DIAMp5SAIQ0AlAKIAZZwDUAggDkAws5SpGAARtCk7BISQA §1.3.2]).</ref>[[File:Jaguar Mark II 3.8 L 1962.jpg|alt=A picture of a black Jaguar car on a road.|thumb|A Jaguar car. |249x249px]]<br />
{| class="wikitable"<br />
|-<br />
!style="background-color:#F2E0CE" |<br />
==== ''Letang v. Cooper'', [1964] EWCA Civ 5 <ref>''Letang v. Cooper'', [https://www.bailii.org/ew/cases/EWCA/Civ/1964/5.html <nowiki>[1964] EWCA Civ 5 (BAILII)</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#1_3_3__Letang_v__Cooper__1964__EWCA_Civ_5 §1.3.3]).</ref> ====<br />
|-<br />
|Mr. Cooper accidentally drove his Jaguar over Mrs. Letang's legs. More than three years later, Mrs. Letang sued Mr. Cooper alleging both ''negligence'' and ''trespass'' to her body. The relevant limitation statute provided that ordinarily tort claims were subject to a six year limitation period, but a three-year limitation period applied to "actions for damages for negligence." Could Mrs. Letang get around this shorter limitation period by pleading her case as one of trespass to the person? <br />
The Court of Appeal of England and Wales held that it didn't matter what legal label or form Mrs. Letang used to describe Mr. Cooper's tortious conduct. What mattered was whether the facts Mrs. Letang alleged amounted to what the law recognized as "negligence," the word used in the limitation statute. Claimants ''plead'' facts; they ''argue'' law. Since Mrs. Letang alleged that Mr. Cooper had been ''careless'' in not seeing her (it's not that he meant to hit her body), her claim was subject to the limitation statute's 3-year time-bar and it was thus brought out of time. <br />
|-<br />
|"A cause of action is simply a factual situation the existence of which entitles one person to obtain from the Court a remedy against another person. ..." – Lord Justice Diplock <ref>''Letang v. Cooper'', [https://www.bailii.org/ew/cases/EWCA/Civ/1964/5.html <nowiki>[1964] EWCA Civ 5 (BAILII)</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#1_3_3__Letang_v__Cooper__1964__EWCA_Civ_5 §1.3.3]) at para 26.</ref><br />
|}<br />
The Supreme Court of Canada has affirmed this statement of Diplock L.J., that "[a] 'cause of action' is only a set of facts that provides the basis for an action in court."<ref>''Markevich v. Canada'', [https://www.canlii.org/en/ca/scc/doc/2003/2003scc9/2003scc9.html 2003 SCC 9] at para. 27.</ref><br />
<br />
== Nature of common law elements ==<br />
The elements of various common law torts are presented throughout this wiki commentary. It is important to remember that the common law of tort has developed over time through the decisions of judges. It is not unusual to encounter different courts and secondary sources expressing elements of the same torts somewhat differently. This does not mean that one expression of the elements of a particular tort is inherently more correct than another; however, it can be important to check the jurisdiction and level of the court to assess the persuasiveness of a particular statement of the law. <br />
<br />
Though these pages seek to present elements commonly espoused by courts, particularly by courts of appeal, you may well, in your reading and research, encounter other iterations of the elements of a particular tort. <br />
== Simplified court hierarchies ==<br />
{| class="wikitable"<br />
! style="background-color:#CEE0F2" |<br />
===== Canada =====<br />
! style="background-color:#CEE0F2" |<br />
===== England & Wales =====<br />
|-<br />
|[[File:Canada Court System.svg|Canada Court System|alt=Outline of Canada's Court system|449x449px]]<br />
|[[File:Diagram of the court system of England and Wales 2014.svg|Diagram of the court system of England and Wales 2014|alt=Diagram of the court system of England and Wales|431x431px]]<br />
|} <br />
[[Category:Torts]]<br />
[[Category: England]]<br />
{{DISPLAYTITLE:<span style="position: absolute; clip: rect(1px 1px 1px 1px); clip: rect(1px, 1px, 1px, 1px);">{{FULLPAGENAME}}</span>}}</div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Documentation:Torts/Relational_theories&diff=858809Documentation:Torts/Relational theories2025-04-08T18:48:07Z<p>SamuelBeswick: /* Rights vindication */</p>
<hr />
<div>{{Infobox Torts}}<br />
<span style="font-size:200%;">{{SUBPAGENAME}}</span><br />
<br />
Theories that try to present tort law as a coherent construct approach the subject not in terms of what tort law ''does'' but what tort law purports to ''be'' on its own terms. Such perspectives tend to view tort law as "an expression of rights and duties regardless of the instrumental value of those rights and duties".<ref name=":222">{{Cite journal|last=Posner|first=Richard A.|date=Spring 2013|title=Instrumental and Noninstrumental Theories of Tort Law|url=https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=11057&context=ilj|journal=Indiana Law Journal|volume=88|issue=2|pages=469|via=Digital Repository at Maurer Law}}</ref> They seek to understand tort law from an internal point of view<ref>{{Cite web|last=Solum|first=Lawrence|date=2004|title=The Internal Point of View|url=https://lsolum.typepad.com/legal_theory_lexicon/2004/05/legal_theory_le.html|url-status=live|archive-url=|archive-date=|access-date=|website=Legal Theory Lexicon}}</ref>—that is, the view of tort law held by judges and lawyers operating within the legal system through which cases are adjudicated and doctrine is developed.<br />
<br />
Sophisticated theories have been developed that present tort law as unified by a grand principle, such as the principle of corrective justice, of rights-vindication, or of civil recourse. Theories such as those advanced by [https://en.wikipedia.org/wiki/Ernest_Weinrib Ernest Weinrib], [https://en.wikipedia.org/wiki/Jules_Coleman Jules Coleman], [https://www.law.utoronto.ca/faculty-staff/full-time-faculty/arthur-ripstein Arthur Ripstein], [https://hls.harvard.edu/faculty/john-c-goldberg/ John Goldberg] and [https://www.fordham.edu/school-of-law/faculty/directory/full-time/benjamin-c-zipursky/ Benjamin Zipursky], emerged partly as a response to [[Sandbox:Torts/Instrumental theories|instrumental theories]] of private law.<br />
<br />
[https://en.wikipedia.org/wiki/Jules_Coleman Jules Coleman] has illuminated how instrumental theories tend to treat the bilateral link between plaintiff-victim and defendant-injurer as "utterly mysterious," despite its fundamental importance to a tort suit (theories of compensation, deterrence, or punishment generally focus either on the defendant ''or'' the plaintiff).<ref name=":032">{{Cite book|title=Philosophy and the Law of Torts|last=Postema|first=Gerald|publisher=Cambridge University Press|year=2009|isbn=|location=Cambridge|pages=5-9}}</ref> Theorists who question the persuasiveness of economic analysis to explain the legal relationship between plaintiff and defendant have searched for a "more satisfying alternative".<ref name=":032" /> While their theories vary, what they have in common is an "interpretive" methodology for understanding tort law, which can be contrasted to the "functionalist" outlook of instrumental theories.<ref name=":032" /><br />
== Corrective justice ==<br />
{| class="wikitable" style="float:right;margin-left;10px;width:30%"<br />
! style="background-color:#CEE0F2" |Zoë Sinel on Corrective Justice<br />
|-<br />
|In this episode of the ''Private Law Podcast'' host Felipe Jimenez discuss with University of Western Law professor Zoë Sinel on corrective justice, tort law theory, and the influence of seminal thinkers Ernest Weinrib and John Gardner.{{#widget:Iframe|url=https://open.spotify.com/embed/episode/4rnzqwVt7yjObFyh1bxQ5D?utm_source=generator|width=100%|height=100|border=0}}<br />
|}The theory of corrective justice is concerned with restoring balance between the injurer and the victim of a tortious act. Corrective justice theorists [https://en.wikipedia.org/wiki/Jules_Coleman Jules Coleman], [https://www.law.utoronto.ca/faculty-staff/full-time-faculty/arthur-ripstein Arthur Ripstein], and [https://en.wikipedia.org/wiki/Ernest_Weinrib Ernest Weinrib] place emphasis on the "commutative" aspect of tort law, understood as some form of an exchange from individual A (defendant) to B (plaintiff).<ref name=":042">{{Cite book|title=Philosophy and the Law of Torts|last=Postema|first=Gerald|publisher=Cambridge University Press|year=2009|isbn=|location=Cambridge|pages=5-9}}</ref> The relational nature of tort law is expressed "in a normative regime of correlative right and duty."<ref>{{Cite book|title=Tort Theory|last=Weinrib|first=Ernest J.|publisher=Captus University Publications|year=1993|isbn=|editor-last=Cooper-Stephenson|editor-first=Ken|location=|pages=12|chapter=Formalism and its Canadian Critics|editor-last2=Gibson|editor-first2=Elaine}}</ref> <br />
<br />
[https://en.wikipedia.org/wiki/Ernest_Weinrib Ernest Weinrib] characterizes corrective justice as "bipolar," in that connects the "entitlement of one party to the liability of the other." <ref name=":153">{{Cite book|title=Corrective Justice|last=Weinrib|first=Ernest J.|publisher=Oxford University Press|year=1991|isbn=|location=Oxford|pages=7, 18-19}}</ref> The relationship between these two parties arises from "harm that one of them inflicts on the other," connecting the harms done and harm suffered to illuminate the correlative aspects of a single event.<ref name=":822">{{Cite book|title=Tort Theory|last=Gibson|first=Elaine|publisher=Captus University Publications|year=1993|isbn=0921801874|location=North York|pages=10, 26}}</ref> [https://en.wikipedia.org/wiki/Ernest_Weinrib Weinrib] argues that the instrumental theories of private law (compensation, deterrence and punishment) are "incompatible" with this relationship since they "interrupt the direct relationship of doer and sufferer".<ref name=":322">{{Cite book|title=Tort Theory|last=Weinrib|first=Ernest J.|publisher=Captus University Publications|year=1993|isbn=|editor-last=Cooper-Stephenson|editor-first=Ken|location=|pages=11|chapter=Formalism and its Canadian Critics|editor-last2=Gibson|editor-first2=Elaine}}</ref> Corrective justice theory poses a challenge to any "hegemony of economic theory" of tort law, providing rich theoretical approaches to the complex relationship between parties involved in a tortious act.<ref name=":042" /><br />
{| class="wikitable" style="width: 65%"<br />
! style="background-color:#F2E0CE" |''Atlantic Lottery Corp. Inc. v. Babstock'', 2020 SCC 19<ref name=":232">''Atlantic Lottery Corp. Inc. v. Babstock'', 2020 SCC 19 ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#9_7_1__Atlantic_Lottery_Corp__Inc__v__Babstock__2020__SCC_19 §15.1.1]) at para 34.</ref><br />
|-<br />
|In ''Atlantic Lottery Corp. Inc. v. Babstock'', Justice Brown for the Supreme Court averred, citing Weinrib, that "corrective justice, the basis for recovery in tort, demands ... an explanation as to why the plaintiff is the party entitled to a remedy .... Tort law does not treat plaintiffs “merely as a convenient conduit of social consequences” but rather as “someone to whom damages are owed to correct the wrong suffered” ...."<ref name=":232" /><br />
|}<br />
==== Primary and secondary duties ====<br />
Corrective justice theory understands the structure of tort law in terms of primary and secondary duties.<ref name=":522">{{Cite journal|last=Sheinman|first=Hanoch|date=2003|title=Tort Law and Corrective Justice|url=|journal=Law and Philosophy|volume=22|pages=30|via=}}</ref> First order duties prohibit or require certain conduct.<ref name=":522" /> For example, certain intentional torts such assault, battery and defamation are concerned with how certain behaviours are prohibited. The tort of negligence recognises obligations to act or not act in a certain way. Second order duties are "duties of repair" that arise upon the breach of a first order duty.<ref name=":732">{{Cite journal|last=Loth|first=Marc|date=2015|title=Corrective and Distributive Justice in Tort Law|url=|journal=SAGE Publications|volume=22|pages=795|via=}}</ref> The relationship between first and second order duties is that an individual or entity has a duty to "repair" or address the wrongful loss arising from their breach of a first order duty. In this way, the corrective justice theory accounts for one of the core aspects of tort law, which is the legal connection which exists between a wrongdoer and their victim. It explains why tort law is "a law of wrongs".<ref>{{Cite web|last=Coleman, J., Hershovitz S., Mendlow G.|first=|date=17 Dec 2015|title=Theories of the Common Law of Torts|url=https://plato.stanford.edu/archives/spr2022/entries/tort-theories/|url-status=live|archive-url=|archive-date=|access-date=|website=Stanford Encyclopedia of Philosophy Archive}}</ref><br />
<br />
==== Corrective justice versus distributive justice ====<br />
The distinction between corrective and distributive justice dates back to [https://en.wikipedia.org/wiki/Aristotle Aristotle]'s theories of justice.<ref>{{Cite journal|last=Wells|first=Catharine Pierce|date=1990|title=Tort Law as Corrective Justice: A Pragmatic Justification for Jury Adjudication|url=|journal=Michigan Law Review|volume=88|pages=2350|via=}}</ref> Both forms of justice "presuppose the Aristotelian idea of normative equilibrium".<ref>{{Cite journal|last=Zipursky|first=Benjamic|date=2003|title=Civil Recourse, Not Corrective Justice|url=|journal=The Georgetown law journal|volume=91|pages=1|via=}}</ref> While corrective justice places focus on the relationship between two individuals connected by the "voluntary or involuntary transaction" (tort), [https://plato.stanford.edu/entries/justice-distributive/ distributive justice] emphasizes the larger group or political community and the distribution of goods and legal burdens.<ref>{{Cite journal|last=Loth|first=Marc|date=2015|title=Corrective and Distributive Justice in Tort Law|url=|journal=SAGE Publications|volume=22|pages=793|via=}}</ref> Weinrib distinguishes corrective justice from the theory of distributive justice. On his account, distributive justice does not relate to two parties "directly," but arises instead "through the medium of a distributive scheme" that operates in society outside of the tort system.<ref name=":172">{{Cite book|title=Corrective Justice|last=Weinrib|first=Ernest J.|publisher=Oxford University Press|year=1991|isbn=|location=Oxford|pages=7, 18-19}}</ref> Distributive justice does not operate as a bipolar relationship, since distributive decision-making implicates "any number of parties".<ref>{{Cite book|title=Tort Theory|last=Weinrib|first=Ernest J.|publisher=Captus University Publications|year=1993|isbn=|editor-last=Cooper-Stephenson|editor-first=Ken|location=|pages=10|chapter=Formalism and its Canadian Critics|editor-last2=Gibson|editor-first2=Elaine}}</ref> <br />
=== Critiques of corrective justice theory ===<br />
==== Limits of injustice correction ====<br />
Corrective justice theory is criticised by some as overly formalist and too narrowly focused on the bilateral plaintiff-defendant relationship. [http://kencooperst.com/ Ken-Cooper Stephenson] contends that Weinrib's corrective justice theory "misunderstands much of tort law's actual social context" and "fails to accommodate tort law's legal, political, and social context".<ref>{{Cite book|title=Tort Theory|last=Cooper-Stephenson|first=Ken|publisher=Captus University Publications|year=1993|isbn=|editor-last=Cooper-Stephenson|editor-first=Ken|location=|pages=48|chapter=Corrective Justice, Substantive Equality and Tort Law|editor-last2=Gibson|editor-first2=Elaine}}</ref> <br />
{| class="wikitable" style="width: 100%"<br />
! style="background-color:#F2E0CE" |''Brown v. Canada'' <ref name=":1">''Brown v. Canada'' [2018] ONSC 3429 ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#12_4_1_Brown_v__Canada__2018__ONSC_3429 §12.4.1]).</ref> <br />
|-<br />
|Criticisms of corrective justice theory have arisen in the context of [https://en.wikipedia.org/wiki/Canadian_Indian_residential_school_system residential school] survivor litigation. [https://en.wikipedia.org/wiki/Kent_Roach Kent Roach] has questioned whether "the survivors" in this tort litigation "would have been better off had they avoided engagement with Canadian law."<ref>{{Cite journal|last=Roach|first=Kent|date=2014|title=Blaming the Victim: Canadian Law, Causation, and Residential Schools|url=https://utpjournals.press/doi/10.3138/utlj.2419|journal=University of Toronto Law Journal|volume=64|pages=566|via=}}</ref> The concern is that any legal remedies or settlements reached in practice are devoid of "correction" between survivors and the state in wake of intergenerational impacts of residential schools.<ref name=":1" /> Since no amount of money can account for the willful infliction of emotional distress, corrective justice theory may be ill-equipped to explain tort law's interaction with complex systemic realities such as colonial abuses.<br />
|}<br />
==== Dependence on distributive justice? ====<br />
While Weinrib argues that tort law exemplifies only corrective justice, others consider that the tort system necessarily relies on a "co-dependency" with distributive justice.<ref name=":422">{{Cite book|title=Tort Theory|last=Cooper-Stephenson|first=Ken|publisher=Captus University Publications|year=1993|isbn=|editor-last=Cooper-Stephenson|editor-first=Ken|location=|pages=49|chapter=Corrective Justice, Substantive Equality and Tort Law|editor-last2=Gibson|editor-first2=Elaine}}</ref> [https://ee.linkedin.com/in/heleneenmaa Helen Eenmaa-Dimitrieva] explains the intersections of corrective and distributive justice, presenting arguments that tort law has both distributive and corrective elements.<ref>{{Cite journal|last=Eenmaa-Dimitrieva|first=Helen|date=2019|title=The Problem of Dependency of Corrective Justice: Corrective Entitlements and Private Transactions|url=|journal=The Canadian Journal of Law and Jurisprudence|volume=32|pages=|via=}}</ref> Ken Cooper-Stephenson asserts that "both corrective and distributive" elements are present in tort law.<ref name=":422" /> For Cooper-Stephenson, tort law is "one component of a distributive scheme".<ref name=":422" /> That is to say, tort law's corrective justice features must be viewed within the larger societal scheme of rights and obligations which organize benefits and burdens across society.<br />
== Civil recourse ==<br />
[[File:Zgc1993-Fk9RSVdJ6Q8-unsplash.jpg|left|thumb|For Goldberg and Zipursky, tort law is a "gallery of wrongs".<ref name=":622">{{Cite book|title=Philosophical Foundations of The Law of Torts|last=Goldberg|first=John C.P.|last2=Zipursky|first2=Benjamin C.|publisher=Oxford University Press|year=2014|isbn=|editor-last=Oberdiek|editor-first=John|location=|pages=17|chapter=Tort Law and Responsibility}}</ref>|240x240px]]Civil recourse theory presents tort law as a system that empowers individuals to obtain recourse through the courts from those who wrong them. This theory has been most prominently developed by [https://hls.harvard.edu/faculty/john-c-goldberg/ John Goldberg] and [https://en.wikipedia.org/wiki/Benjamin_Zipursky Benjamin Zipursky], who argue that tort law is "a law of responsibility" that opeates to allow the tortfeasor to be "held responsible or accountable to the victim".<ref name=":622" /> Drawing upon [https://en.wikipedia.org/wiki/John_Locke John Locke]'s theory of the [https://en.wikipedia.org/wiki/Social_contract social contract], they present the tort system as a foundational societal institution that supplants individuals' claims to self-help.<ref name=":1222" /> This idea is summarized by Zipursky:<blockquote>"[b]y recognizing a legal right of action against a tortfeasor, our system respects the principle that the plaintiff is entitled to act against one who has legally wronged him or her. I call this the principle of civil recourse. The legal principle that the victim of a tort has a right of action against the tortfeasor is an instance of this more general idea."<ref name=":1222">{{Cite journal|last=Zipursky|first=Benjamin|date=2003|title=Civil recourse, not corrective justice.|url=https://heinonline.org/HOL/Page?collection=journals&handle=hein.journals/glj91&id=749&men_tab=srchresults|journal=The Georgetown law journal|volume=91|pages=735, 737|via=}}</ref></blockquote>Alike to corrective justice, civil recourse highlights the normative rights and duties at play in the tort law system.<ref>{{Cite journal|last=Gold|first=Andrew|date=2011|title=The taxonomy of civil recourse|url=|journal=Florida State University law review|volume=39|pages=66|via=}}</ref> However, unlike corrective justice, civil recourse contends that breach of a (primary) duty provides plaintiffs with a (secondary) "right of action" to seek legal redress from the wrongdoer through the courts.<ref>{{Cite journal|last=Goldberg, John & Benjamin Zipursky|first=|date=2013|title=Civil Recourse Defended: A Reply to Posner, Calabresi, Rustard, Chamallas, and Robinette”|url=|journal=Indiana Law Journal|volume=88|pages=575-576|via=}}</ref> This is not exactly a legal right to "demand payments and remedies from those who have wronged them," as corrective justice would have it.<ref>{{Cite journal|last=Zipuesky|first=Benjamin|date=2014|title=Civil recourse and the plurality of wrongs : why torts are different.|url=|journal=New Zealand Law Journal|volume=|pages=146|via=}}</ref> Rather, it is a legal power that a plaintiff may choose to exercise (or not) to bring a claim against the defendant and have it heard and adjudicated by an impartial court. <br />
{| class="wikitable" style="float:right;margin-left;10px;width:30%"<br />
|-<br />
! style="background-color:#CEE0F2" |Podcast: John Goldberg and Ben Zipursky on Recognizing Wrongs<ref>Private Law Podcast, [https://podcasts.google.com/feed/aHR0cHM6Ly9hbmNob3IuZm0vcy80ZWEzMzYzYy9wb2RjYXN0L3Jzcw/episode/ZGRhZDMxOWUtODJlMi00ZjlmLTliZTEtMDc5ZDk2YzliZGI4?sa=X&ved=0CAUQkfYCahcKEwjolPHCvNLxAhUAAAAAHQAAAAAQBw "John Goldberg and Ben Zipursky on Recognizing Wrongs"] (23 Mar 2021) ''Google Podcasts.''</ref><br />
|-<br />
| {{#widget:Iframe|url=https://open.spotify.com/embed/episode/6U8xXR8Wo53rA0TsM8uXOe?utm_source=generator|width=100%|height=100|border=0}}In this episode of the ''Private Law Podcast'' host Felipe Jimenez discuss with prominent constructivist theorists John Goldberg and Benjamin Zipursky about their book ''Recognizing Wrongs.'' <br />
|-<br />
! style="background-color:#CEE0F2" |Book Talk: John Goldberg and Ben Zipursky on Civil Recourse Theory<ref>Harvard Law School, [https://www.youtube.com/watch?v=1Q-qdMPGD0s "HLS Library Book Talk | Recognizing Wrongs"] (27 Feb 2020) ''Youtube''.</ref><br />
|-<br />
|{{YouTube|id=1Q-qdMPGD0s|width=100%|height=300}}<br />
At an event at Harvard Law School in 2020, Professors John Goldberg and Ben Zipursky discussed their book with fellow panelists.<br />
|}<br />
=== Critiques of civil recourse theory ===<br />
==== Explanatory power in tort law ====<br />
Legal economist and judge [https://en.wikipedia.org/wiki/Richard_Posner Richard Posner] has been strong critics of civil recourse theory, contending that it provides no guidance for courts making legal decisions.<ref name=":1322">{{Cite journal|last=Posner|first=Richard|date=2013|title=Instrumental and Non-instrumental Theories of Tort Law|url=|journal=Indiana Law Journal|volume=88|pages=471-472|via=}}</ref> Posner argues that civil recourse theorists' idea of a "right of action" is a feature of every [https://en.wikipedia.org/wiki/Private_law#:~:text=Private%20law%20is%20that%20part,called%20in%20civil%20legal%20systems). private law] relationship and not something unique to our understanding of tort law.<ref name=":1322" /> Additional critiques suggest that civil recourse is simply a subcomponent of corrective justice, which simply explains civil procedure.<ref name=":1322" /><br />
==== Emphasis on wrongdoing ====<br />
Another critique of civil recourse theory is that it is simply a theory of state-sanctioned revenge, a variation on instrumentalist theories of punishment. Yet, this is an interpretation that Goldberg and Zipursky are "keen to distance themselves from".<ref>{{Cite journal|last=Hershovitz|first=Scott|date=2011|title=Corrective Justice for Civil Recourse Theorists|url=|journal=Florida State University Law Review|volume=39|pages=122|via=}}</ref><br />
<br />
Despite attempts to distance civil recourse from revenge, Goldberg and Zipursky's focus on "wrongdoing" may seem strained in certain scenarios.<ref>{{Cite journal|last=Stone|first=Rebecca|date=2023|title=Private Liability Without Wrongdoing|url=|journal=University of Toronto Law Journal|volume=73|pages=60|via=}}</ref> [https://www.brooklaw.edu/Contact-Us/Gold-Andrew Andrew Gold] notes that the application of civil recourse can be "odd" as "some defendants are good faith actors who exercised due care".<ref name=":1422">{{Cite book|title=The Right of Redress|last=Gold|first=Andrew|publisher=Oxford University Press|year=2020|isbn=|location=Oxford|pages=113}}</ref> Gold adds that some plaintiffs also may be much more concerned with obtaining a remedy instead of holding the defendant responsible for their act.<ref name=":1422" /> This is especially demonstrated in strict liability or negligence cases where defendants' culpability tends to be less prominent than in intentional tort cases.<br />
== Rights vindication ==<br />
For some theorists the vindication of rights is accepted as the primary justification of tort law.<ref name=":1022">{{Cite journal|last=Varuhas|first=Jason|date=2014|title=The Concept of ‘Vindication’ in the Law<br />
of Torts: Rights, Interests and Damages|url=|journal=Oxford Journal of Legal Studies|volume=34|pages=253-7|via=}}</ref> Theories of rights vindication are distinct from corrective justice as they highlight the infringement of rights rather than an imposition of loss. Rights vindication can be viewed in two ways: one is that generally the "law affirms the existence of the right through recognition of an action for breach," and two that specifically tort law aims to "reinforce the inherent value of a particular interest".<ref>{{Cite journal|last=Varuhas|first=Jason|date=2014|title=The Concept of ‘Vindication’ in the Law of Torts: Rights, Interests and Damages|url=https://watermark.silverchair.com/gqt036.pdf?token=AQECAHi208BE49Ooan9kkhW_Ercy7Dm3ZL_9Cf3qfKAc485ysgAAA1gwggNUBgkqhkiG9w0BBwagggNFMIIDQQIBADCCAzoGCSqGSIb3DQEHATAeBglghkgBZQMEAS4wEQQMCX76Qrd7a1rdPUK_AgEQgIIDCxIfzCUdRBnbri8H1fTB68MNd6pUUYHzLCW9RxS00KlDkTtBpQvtzFVfdYsOzUN0mR4A-9Q0nKqa2i-lZ1jODr-122-y-bCSIHsA-65EBbmTyBpfhjSXqTQ1H9P53rqi1gHK4GqkgW-rZ891ZQPqjgK60e4RaYwxA1MCgPGppYn4xq9c-Ed7NWQyLmnem2cm6cQCoGAkeEtsrWoehYmKjugArSIkPg4g-DgD_Yd41pa3U0TrpmB_lMR_RNlygcuQatEDaoyqNT0kKt9Yy0qVJ-rlcZGdqYRcRnGKOTU_rPPgL0AhhAykd34U9zWQNj3CPrmpK9IxoJweNCu1lLUJ_ydvT_kdvG5rLKoh3ubIBn1JjvqgQwy17FAKRO234GF69vXNzUI39C1ir7NbPX2QApHe3Oh3sQ6CGAzWY_KO807sTjXXUJUX3FLkqnIk2kNPqawz1UbJer6Ze7DpbBeFt5oVtSyb6t7of7bqyOmLchPfkUTo-P52xIhQKTEqqIF_sNnB0LW_NrxFaOLqSencQaagNbbFimrAVbt_QY4FQoFtLg6hJ9xiTVeKqBB-kx80KF-gpy6UnEtnoa_n_P2Hl3b38XNUxEegTcbP2FrgdD4R-P1fySZnUm0H-uyV90C26OVQBFEE3kmPJNFJX6cN6LRehvIllZMg64U56apdMkXd7u3U3CU2iwUWpkaEB7XSHYHbL5YJ2Jepui6PsZbc19v6uzV1PUPSYwz054l-IsW99JGSVZzcR46TRsrqx-7rNUwExrpdl2je5sEixdlvj90etaiKB5dBSY5hd66rrArgTi-QdZJa2VbDzqBHQA9v0-SYLL0JXhqxg_S2dgiYUjVl5C0qsbjEfKE8CybgqQHpER0qDiyvsFJeEuKlhwQY0J_UgHsv_68p1eBmvxZcWDDdSIwcOVaGdTekHGyDkXB0Q80VwmrtHDeirBTU9o-eWoy42i46PX6bC7-qnw3E8glqyFsO7x1z2nLtHVAf5IjtGM64maE2bpkNjqtp9FW2V-w1jPP1gK8AJL7p|journal=Oxford Journal of Legal Studies|volume=34|pages=258|via=}}</ref> As stated by professor Arthur Ripstein, "[a] right that can be knowingly violated with impunity is no right at all."<ref>{{Cite book|title=Equality, Responsibility, and the Law|last=Ripstein|first=Arthur|publisher=Cambridge University Press|year=1998|isbn=|location=Cambridge;New York|pages=158}}</ref><br />
<br />
[https://www.law.ox.ac.uk/people/robert-stevens Robert Stevens] characterizes a tort as a "species of wrong", where a wrong "is a breach of a duty owed to someone else" and a breach of this duty is "an infringement of a right" held by the victim.<ref name=":1122">{{Cite book|url=https://doi.org/10.1093/acprof:oso/9780199211609.003.0001|title=Torts and Rights|last=Stevens|first=Robert|publisher=Oxford University Press|year=2009|isbn=|location=|pages=2|chapter=Introduction}}</ref> Stevens' "rights model" of tort law too recognises primary and secondary obligations in private law relationships: "a wrong is the infringement of a primary right which generates a secondary right". For Stevens, the secondary obligation arises from the defendant's "infringement of primary rights", rather than from the "infliction of loss" (as characterised by corrective justice theory).<ref name=":1122" /> In tort this secondary right is typically "a liability to pay [[Sandbox:Torts/Damages|compensation]]".<ref>{{Cite book|url=https://doi.org/10.1093/acprof:oso/9780199211609.003.0001|title=Torts and Rights|last=Stevens|first=Robert|publisher=Oxford University Press|year=2009|isbn=|location=|pages=287|chapter=Classification}}</ref><br />
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! style="background-color:#F2E0CE" |''Rees v. Darlington Hospital''<ref name=":05">''Rees v Darlington Memorial Hospital NHS Trust'' [https://publications.parliament.uk/pa/ld200203/ldjudgmt/jd031016/darl-1.htm <nowiki>[2003] UKHL 52</nowiki>].</ref><br />
|-<br />
|[https://www.tcd.ie/law/people/mulliga3 Andrea Mulligan] illuminates the potential effectiveness of rights vindication theory in understanding tort litigation regarding negligence and reproductive rights.<ref name=":2">{{Cite journal|last=Mulligan|first=Andrea|date=2020|title=A vindicatory approach to tortious liability for mistakes<br />
in assisted human reproduction|url=|journal=Legal Studies|volume=40|pages=55|via=}}</ref> While many cases of assisted human reproduction proceed under public law, [[Sandbox:Torts/Negligence Unborn children|negligence claims]] have also been taken as an avenue for vindicating rights-infringements arising from mistakes made in the course of [https://en.wikipedia.org/wiki/Assisted_reproductive_technology#:~:text=Assisted%20reproductive%20technology%20(ART)%20includes,the%20use%20of%20fertility%20medication. fertility treatments]. For Mulligan, the case ''Rees v. Darlington Hospital'' is illustrative.<ref name=":2" /> After the plaintiff Rees sought to not have children due to her disability and had undertaken medical care for sterilization she became pregnant. She sought compensation for the cost of having to raise a child.<ref name=":05" /> While the Court did not agree that Rees had suffered a compensable loss in the traditional sense, it awarded $15,000 in damages to recognise that the plaintiff had "suffered a legal wrong".<ref>''Rees v Darlington Memorial Hospital NHS Trust'' [https://publications.parliament.uk/pa/ld200203/ldjudgmt/jd031016/darl-1.htm <nowiki>[2003] UKHL 52</nowiki>]at para 17.</ref><br />
|}<br />
=== Critiques of rights vindication theory ===<br />
==== Distinguishing moral rights from interests ====<br />
{| class="wikitable" style="float:right;margin-left;10px;width:30%"<br />
! style="background-color:#CEE0F2" |Andrew Gold on The Right of Redress<ref>Private Law Podcast, "[https://podcasts.google.com/feed/aHR0cHM6Ly9hbmNob3IuZm0vcy80ZWEzMzYzYy9wb2RjYXN0L3Jzcw/episode/YjQyODY1YWYtYzhmZi00OTFlLWEyNDQtZjM2OWI4YzU2MGJi?sa=X&ved=0CAUQkfYCahcKEwigxJKgpYeBAxUAAAAAHQAAAAAQCg Andrew Gold on The Right of Redress]" (5 Apr 2021)</ref><br />
|-<br />
|In this episode of the ''Private Law Podcast'' host Felipe Jimenez discusses with Andrew Gold, professor of law at Brooklyn Law School, his new book ''The Right of Redress''.<br />
{{#widget:Iframe|url=https://open.spotify.com/embed/episode/6vup7TsbCk7INOsDoETIXd?utm_source=generator|width=100%|height=100|border=0}}<br />
|}A major focus of critique of [https://www.law.ox.ac.uk/people/robert-stevens Stevens]' theory on rights vindication is his classification of rights. Stevens contends that "[r]ational people can recognize rights independently of their being given the force of law’".<ref>{{Cite book|title=Torts and Rights|last=Stevns|first=Robert|publisher=Oxford University Press|year=2007|isbn=|location=|pages=330}}</ref> For many, this conception of a right resembles moral rights which rely on "basic aspects of human well-being or flourishing, such as liberty and physical integrity".<ref name=":1032">{{Cite journal|last=Varuhas|first=Jason|date=2014|title=The Concept of ‘Vindication’ in the Law<br />
of Torts: Rights, Interests and Damages|url=|journal=Oxford Journal of Legal Studies|volume=34|pages=253-7|via=}}</ref> Such rights may be viewed to have value prior to the law and are thus "pre-political".<ref name=":022">{{Cite journal|last=Priel|first=Dan|date=2011|title=That Can't Be Rights (Review of Robert Stevens's 'Torts and Rights')|url=https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1886511|journal=Juriprudence|volume=2|pages=235|via=}}</ref> Stevens refuses to extend rights to some interests that courts in some jurisdictions do recognise as attracting rights, such as pure economic loss, and instead states that an injury in tort law is only recoverable if it involves a breach of primary rights. Stevens leaves it up to the Courts to determine the scope of these primary rights upon policy grounds.<ref>{{Cite book|title=Torts and Rights|last=Stevens|first=Robert|publisher=Oxford University Press|year=2007|isbn=|location=Oxford|pages=33-7}}</ref> Scholars such as [https://www.christs.cam.ac.uk/college/people/fellows/professor-peter-cane Peter Cane]<ref name=":162">{{Cite journal|last=Cane|first=Peter|date=2008|title=Torts and Rights by Robert Stevens|url=|journal=Modern Law Review|volume=71|pages=641-647|via=}}</ref> and [https://www.osgoode.yorku.ca/faculty-and-staff/priel-dan/ Dan Priel]<ref name=":022" /> point to weaknesses in Stevens' reliance on Courts to apply the concept of moral/primary rights. In particular, Cane questions the practicality of legal reasoning being reduced to an exercise of right protection despite the realities of subjective elements of the common law.<ref name=":162" /><br />
==== Valuing rights ====<br />
In response to Robert Stevens' theory of rights, [https://www.google.com/search?q=jason+varuhas&rlz=1C5CHFA_enCA1014CA1014&oq=Jason+Varuhas&aqs=chrome.0.0i355i512j46i512.406j0j4&sourceid=chrome&ie=UTF-8 Jason Varuhas] has argued that it is is difficult to make out what would be needed to "be able to value a right" to provide an appropriate award of damages.<ref name=":1522">{{Cite journal|last=Varuhas|first=Jason|date=2014|title=The Concept of 'Vindication' in the Law of Torts: Rights, Interests and Damages|url=|journal=Oxford Journal of Legal Studies|volume=34|pages=271|via=}}</ref> Varuhas adds that since rights are understood to be a norm, calculation of the value of infringement can be arbitrary and artificial, which tends to undermine consistency in the practice of law.<ref name=":1522" /> <br />
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== References ==<br />
<references /></div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Documentation:Torts&diff=858807Documentation:Torts2025-04-08T18:43:33Z<p>SamuelBeswick: /* About */</p>
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<div style="font-size:170%; line-height:100%; border:none; margin:0; padding:0em; color:#FFFFFF; font-weight:bold; line-height:1.3;">COMMON LAW TORTS WIKI</div><br />
<div style="padding-left:+0.5em; margin-top:+0.5em; font-size:170%; line-height:100%; border-left:2px solid #FFFFFF; line-height:1.3;"><I>Exploring the (Canadian) common law of torts</i><br />
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{{ Infobox Torts }}<br />
[[Sandbox:Torts/Introduction|Tort law]] is a branch of [https://en.wikipedia.org/wiki/Private_law private law] that recognizes and responds to wrongdoing between people. This wiki commentary explores and explains the nature and relevance of the common law of torts in Canada. We hope you find this free and accessible resource useful for your studies, classroom discussions, and overall understanding of this subject. <br />
<br />
== About ==<br />
The ''Common Law Torts Wiki'' was developed over 2023-25 under the editorial supervision of [https://allard.ubc.ca/about-us/our-people/samuel-beswick Samuel Beswick], Assistant Professor at the University of British Columbia Peter A. Allard School of Law, through a [https://open-2021.sites.olt.ubc.ca/files/2025/03/2025-TLEF-Poster-SamuelBeswick.pdf project] with Allard Law JD students [https://www.linkedin.com/in/gabriella-pasolli/ Gabriella Pasolli], [https://www.linkedin.com/in/cleacatona/ Cléa Catona], [https://www.linkedin.com/in/lilly-callender-4a8805159/ Lillian Callender] and [https://www.linkedin.com/in/alirodameri/ Alirod Ameri] (summer 2023) and [https://www.linkedin.com/in/joeyhe/ Joey He] and [https://www.linkedin.com/in/malik-dhami-736915314/ Malik Dhami] (summer 2024). It was supported by a UBC Teaching and Learning Enhancement Fund (TLEF) Small Innovation Project Grant. The quiz exercises that are integrated throughout were developed with former Allard Law students [https://www.linkedin.com/in/maddisonzapach/ Maddison Zapach] (summer and fall 2021) and Parm Rai (summer 2020). The wiki is a living resource that is updated and improved from time-to-time. <br />
<br />
=== Contribute ===<br />
Law students and scholars who have ideas to contribute to the development of this commentary on the common law of torts are encouraged to [https://allard.ubc.ca/about-us/our-people/samuel-beswick reach out] to Prof. Beswick. Contributions generally should comply with the [[Sandbox:Torts/Content and style guide|wiki content and style guide]]. UBC affiliates can make minor error corrections or updates directly by logging in with their CWL account. Non-UBC affiliates may contact Prof. Beswick attaching suggested content additions or edits. <br />
=== Disclaimer ===<br />
This wiki commentary is a pedagogical resource only and was created to support student learning. It is not an authoritative source of law or legal principle or legal advice and should not be relied upon or cited as such. If you need legal advice, contact a lawyer or a legal advice program.<ref>{{Cite web|last=|first=|date=|title=Law Students' Legal Advice Program,|url=https://www.lslap.bc.ca/|url-status=live|archive-url=|archive-date=|access-date=|website=}}</ref> As a free collaboratively-made living resource, this wiki can be edited by anyone with [https://it.ubc.ca/services/accounts-passwords/campus-wide-login-cwl UBC CWL] access. Contributors do not guarantee the validity or accuracy of the information provided. We disclaim responsibility for any inaccurate information and exclude all representations, warranties, obligations and liabilities in relation to the wiki content to the maximum extent permitted by law. We incorporate by reference all of the [https://en.wikipedia.org/wiki/Wikipedia:General_disclaimer disclaimers applicable to Wikipedia].<br />
=== License ===<br />
Content created for this wiki commentary is licensed under a [https://creativecommons.org/licenses/by-nc/4.0/ Creative Commons Attribution-NonCommercial 4.0 International License]. Full references and, where available, hyperlinks to external sources are provided throughout. Images are licensed from the Wikimedia Commons or other open repositories, as indicated on each image file page. Hyperlinks to external podcasts, [https://www.youtube.com/t/terms#c3e2907ca8 YouTube] videos, and other media are provided, as well as embedded where permitted by the host site. [[File:2021CanLIIDocs1859-3 Page 001.jpg|alt= Tort Law: Cases and Commentaries, 2021 CanLIIDocs 1859, https://canlii.ca/t/t9st|thumb|[https://canlii.ca/t/t9st 2021 CanLIIDocs 1859]|left|284x284px|border]]<br />
== Case readings ==<br />
The ''Common Law Torts Wiki'' aims to provide a general introduction to the common law of torts, as well as to complement and supplement the case law readings presented in [https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859 ''Tort Law: Cases and Commentaries'' (2021 CanLIIDocs 1859)].<br />
<br />
A case is a judgment of a court that ''both'' resolves a dispute between parties ''and'' operates as an authoritative source of law and legal principle. The judgments collated, organized and republished in the ''Tort Law: Cases and Commentaries'' casebook have been edited down to facilitate clarity and a manageable law school reading load; the full judgment text can be read by following the hyperlinked citations. <br />
<br />
== Themes ==<br />
Each of the judgments that appears in ''Tort Law: Cases and Commentaries'' was selected for inclusion because it illustrates one or more of five themes of the casebook.<br />
<br />
=== Empowering plaintiffs to sue ===<br />
Tort law is a branch of private law – the law that governs the legal relationships between people (as opposed to public law, which governs people's relationships with their government). Tort law empowers victims to pursue legal remedies against those who wrong them, typically without having to seek permission of a court or being beholden to the discretion of a public servant. For example, a person who is intentionally struck in the face by another may sue the wrongdoer for the tort of [[Sandbox:Torts/Trespass to the person#Battery|battery]], but they cannot ordinarily prosecute the wrongdoer for the [http://criminalnotebook.ca/index.php/Common_Assault_(Offence) crime of assault]. The decision to charge and prosecute a suspected criminal lies with the state (through the police and the prosecutor), not with the victim. The decision to sue for civil wrongdoing, on the other hand, lies with the victim (not with the state or anyone else). <br />
<br />
=== Equality of all under ordinary law ===<br />
A distinctive feature of the common law and constitutional law of Canada and other Commonwealth jurisdictions is the idea of legal equality. This idea was famously expounded by Professor [https://en.wikipedia.org/wiki/A._V._Dicey Albert Venn Dicey], who considered that the the [https://en.wikipedia.org/wiki/Rule_of_law rule of law] requires the subjection of public officials to same laws and courts as govern ordinary people.<ref>{{Cite book|url=https://oll.libertyfund.org/title/michener-introduction-to-the-study-of-the-law-of-the-constitution-lf-ed#Dicey_0125_623|title=Introduction to the Study of the Law of the Constitution|last=Dicey|first=Albert Venn|publisher=Liberty Fund|year=1915 (reprint)|isbn=|location=|pages=}}</ref> It is this idea of equality that explains why police officers, cities, and governments can be sued by individuals in tort.<ref>{{Cite journal|last=Beswick|first=Samuel|date=2024|title=Equality Under Ordinary Law|url=https://ssrn.com/abstract=4528664|journal=Supreme Court Law Review (3d)|volume=4|pages=65}}</ref> <br />
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=== Incremental development of the common law ===<br />
While many statutory interventions have been made into the law of torts, the traditional and primary source of tort law is the [https://en.wikipedia.org/wiki/Common_law common law]. The common law in Canada developed originally from English common law.<ref name=":0">{{Cite web|last=McLachlin PC CC|first=Beverly|date=13 June 2016|title=Canada’s Legal System at 150: Democracy and the Judiciary|url=https://www.scc-csc.ca/judges-juges/spe-dis/bm-2016-06-03-eng.aspx|url-status=live|archive-url=|archive-date=|access-date=|website=Supreme Court of Canada}}</ref> The common law is typified by inductive reasoning: discerning the law from "the bottom up" through judges relying upon case [https://en.wikipedia.org/wiki/Precedent precedents] to decide disputes by delivering judgments, which go on to serve as precedents for future judges to rely upon in deciding future disputes. <br />
<br />
=== Community standards and values ===<br />
The disputes that form the substance of a case arise from the community over which the court has jurisdiction. The common law's inductive nature leads to community standards and values informing judicial reasoning and understanding of legal concepts, such as the concept of reasonableness. But which aspects of the community carry weight? When reading through cases, it becomes clear, for example, that the idea of [[Sandbox:Torts/Breach of duty of care|the reasonable person]] is adaptable to different contexts. It is important to be mindful of the time and place of the cases you are reading to properly situate yourself in the perspective of the court and community of the period. If you find yourself disagreeing with a judge's reasoning, ask yourself ''why –'' when and where does your reasoning break away from the court's? <br />
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=== Judicial dialogue over time within and between jurisdictions ===<br />
[[File:Map_of_the_Legal_systems_of_the_world_(en).png|link=|alt=An map of Earth with colour coding indicating the legal systems of the world|thumb|427x427px|[https://upload.wikimedia.org/wikipedia/commons/9/92/Map_of_the_Legal_systems_of_the_world_%28en%29.png Map of the legal systems of the world]|border]]When a dispute arises that presents a court with a novel issue or problem, judges can find it useful to look to other jurisdictions to see how other courts have answered the question. As the common law develops incrementally through reliance on past cases, it is not unusual for judges to engage with foreign judgments and to adopt persuasive judicial reasoning in analogous cases. <br />
== Media ==<br />
The ''Common Law Torts Wiki'' aims to be a springboard into media and other sources to help students appreciate the relevance and context of tort cases and concepts. As you explore the pages you will encounter: <br />
<br />
*'''Quizzes:''' Self-assessment quizzes appear at the bottom of many of the pages. There is also a [https://blogs.ubc.ca/beswick/torts-quizzes/ master page] that collates all of the quizzes in one place. <br />
*'''Videos:''' Informative videos hosted externally on YouTube and elsewhere that are designed to help students wrap their heads around tort concepts.<br />
*'''News''' '''items:''' Sometimes the disputes that are of interest to law teachers and students also attracted public interest at the time and are reported in the news. News reporting often demonstrates the personal context of a legal case and its societal impact. News items appear throughout the wiki in <u>pink</u>-coloured boxes.<br />
*'''Podcasts:''' Whether the mountains of reading you might have for each class overwhelm you, or you need something to listen to during long commutes, podcasts are a great way to learn about the law in a different format than you may be used to.<br />
*'''Blogs:''' Short blog posts can be an excellent way to see how someone else has analyzed a case or the application of a specific tort.<br />
*'''Articles and books:''' Scholarly publications set out sustained explanations and critiques of the law and legal arguments. You will find journal articles and book contributions on tort law cited throughout the wiki. <br />
<br />
|}<br />
{{DISPLAYTITLE:<span style="position: absolute; clip: rect(1px 1px 1px 1px); clip: rect(1px, 1px, 1px, 1px);">{{FULLPAGENAME}}</span>}}</div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Documentation:Torts&diff=858806Documentation:Torts2025-04-08T18:43:12Z<p>SamuelBeswick: /* About */</p>
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<div style="font-size:170%; line-height:100%; border:none; margin:0; padding:0em; color:#FFFFFF; font-weight:bold; line-height:1.3;">COMMON LAW TORTS WIKI</div><br />
<div style="padding-left:+0.5em; margin-top:+0.5em; font-size:170%; line-height:100%; border-left:2px solid #FFFFFF; line-height:1.3;"><I>Exploring the (Canadian) common law of torts</i><br />
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{{ Infobox Torts }}<br />
[[Sandbox:Torts/Introduction|Tort law]] is a branch of [https://en.wikipedia.org/wiki/Private_law private law] that recognizes and responds to wrongdoing between people. This wiki commentary explores and explains the nature and relevance of the common law of torts in Canada. We hope you find this free and accessible resource useful for your studies, classroom discussions, and overall understanding of this subject. <br />
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== About ==<br />
The ''Common Law Torts Wiki'' was developed over 2023-25 under the editorial supervision of [https://allard.ubc.ca/about-us/our-people/samuel-beswick Samuel Beswick], Assistant Professor at the University of British Columbia Peter A. Allard School of Law, through a [https://open-2021.sites.olt.ubc.ca/files/2025/03/2025-TLEF-Poster-SamuelBeswick.pdf project] with Allard Law JD students [https://www.linkedin.com/in/gabriella-pasolli/ Gabriella Pasolli], [https://www.linkedin.com/in/cleacatona/ Cléa Catona], [https://www.linkedin.com/in/lilly-callender-4a8805159/ Lillian Callender] and [https://www.linkedin.com/in/alirodameri/ Alirod Ameri] (summer 2023) and [https://www.linkedin.com/in/joeyhe/ Joey He] and [https://www.linkedin.com/in/malik-dhami-736915314/ Malik Dhami] (summer 2024). It was supported by a UBC Teaching and Learning Enhancement Fund (TLEF) Small Innovation Project Grant. The quiz exercises that are integrated throughout were developed with former Allard Law students [https://www.linkedin.com/in/maddisonzapach/ Maddison Zapach] (summer and fall 2021) and Parm Rai (summer 2020). The wiki is a living resource that is updated and improved from time-to-time. <br />
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=== Contribute ===<br />
Law students and scholars who have ideas to contribute to the development of this living commentary on the common law of torts are encouraged to [https://allard.ubc.ca/about-us/our-people/samuel-beswick reach out] to Prof. Beswick. Contributions generally should comply with the [[Sandbox:Torts/Content and style guide|wiki content and style guide]]. UBC affiliates can make minor error corrections or updates directly by logging in with their CWL account. Non-UBC affiliates may contact Prof. Beswick attaching suggested content additions or edits. <br />
=== Disclaimer ===<br />
This wiki commentary is a pedagogical resource only and was created to support student learning. It is not an authoritative source of law or legal principle or legal advice and should not be relied upon or cited as such. If you need legal advice, contact a lawyer or a legal advice program.<ref>{{Cite web|last=|first=|date=|title=Law Students' Legal Advice Program,|url=https://www.lslap.bc.ca/|url-status=live|archive-url=|archive-date=|access-date=|website=}}</ref> As a free collaboratively-made living resource, this wiki can be edited by anyone with [https://it.ubc.ca/services/accounts-passwords/campus-wide-login-cwl UBC CWL] access. Contributors do not guarantee the validity or accuracy of the information provided. We disclaim responsibility for any inaccurate information and exclude all representations, warranties, obligations and liabilities in relation to the wiki content to the maximum extent permitted by law. We incorporate by reference all of the [https://en.wikipedia.org/wiki/Wikipedia:General_disclaimer disclaimers applicable to Wikipedia].<br />
=== License ===<br />
Content created for this wiki commentary is licensed under a [https://creativecommons.org/licenses/by-nc/4.0/ Creative Commons Attribution-NonCommercial 4.0 International License]. Full references and, where available, hyperlinks to external sources are provided throughout. Images are licensed from the Wikimedia Commons or other open repositories, as indicated on each image file page. Hyperlinks to external podcasts, [https://www.youtube.com/t/terms#c3e2907ca8 YouTube] videos, and other media are provided, as well as embedded where permitted by the host site. [[File:2021CanLIIDocs1859-3 Page 001.jpg|alt= Tort Law: Cases and Commentaries, 2021 CanLIIDocs 1859, https://canlii.ca/t/t9st|thumb|[https://canlii.ca/t/t9st 2021 CanLIIDocs 1859]|left|284x284px|border]]<br />
== Case readings ==<br />
The ''Common Law Torts Wiki'' aims to provide a general introduction to the common law of torts, as well as to complement and supplement the case law readings presented in [https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859 ''Tort Law: Cases and Commentaries'' (2021 CanLIIDocs 1859)].<br />
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A case is a judgment of a court that ''both'' resolves a dispute between parties ''and'' operates as an authoritative source of law and legal principle. The judgments collated, organized and republished in the ''Tort Law: Cases and Commentaries'' casebook have been edited down to facilitate clarity and a manageable law school reading load; the full judgment text can be read by following the hyperlinked citations. <br />
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== Themes ==<br />
Each of the judgments that appears in ''Tort Law: Cases and Commentaries'' was selected for inclusion because it illustrates one or more of five themes of the casebook.<br />
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=== Empowering plaintiffs to sue ===<br />
Tort law is a branch of private law – the law that governs the legal relationships between people (as opposed to public law, which governs people's relationships with their government). Tort law empowers victims to pursue legal remedies against those who wrong them, typically without having to seek permission of a court or being beholden to the discretion of a public servant. For example, a person who is intentionally struck in the face by another may sue the wrongdoer for the tort of [[Sandbox:Torts/Trespass to the person#Battery|battery]], but they cannot ordinarily prosecute the wrongdoer for the [http://criminalnotebook.ca/index.php/Common_Assault_(Offence) crime of assault]. The decision to charge and prosecute a suspected criminal lies with the state (through the police and the prosecutor), not with the victim. The decision to sue for civil wrongdoing, on the other hand, lies with the victim (not with the state or anyone else). <br />
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=== Equality of all under ordinary law ===<br />
A distinctive feature of the common law and constitutional law of Canada and other Commonwealth jurisdictions is the idea of legal equality. This idea was famously expounded by Professor [https://en.wikipedia.org/wiki/A._V._Dicey Albert Venn Dicey], who considered that the the [https://en.wikipedia.org/wiki/Rule_of_law rule of law] requires the subjection of public officials to same laws and courts as govern ordinary people.<ref>{{Cite book|url=https://oll.libertyfund.org/title/michener-introduction-to-the-study-of-the-law-of-the-constitution-lf-ed#Dicey_0125_623|title=Introduction to the Study of the Law of the Constitution|last=Dicey|first=Albert Venn|publisher=Liberty Fund|year=1915 (reprint)|isbn=|location=|pages=}}</ref> It is this idea of equality that explains why police officers, cities, and governments can be sued by individuals in tort.<ref>{{Cite journal|last=Beswick|first=Samuel|date=2024|title=Equality Under Ordinary Law|url=https://ssrn.com/abstract=4528664|journal=Supreme Court Law Review (3d)|volume=4|pages=65}}</ref> <br />
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=== Incremental development of the common law ===<br />
While many statutory interventions have been made into the law of torts, the traditional and primary source of tort law is the [https://en.wikipedia.org/wiki/Common_law common law]. The common law in Canada developed originally from English common law.<ref name=":0">{{Cite web|last=McLachlin PC CC|first=Beverly|date=13 June 2016|title=Canada’s Legal System at 150: Democracy and the Judiciary|url=https://www.scc-csc.ca/judges-juges/spe-dis/bm-2016-06-03-eng.aspx|url-status=live|archive-url=|archive-date=|access-date=|website=Supreme Court of Canada}}</ref> The common law is typified by inductive reasoning: discerning the law from "the bottom up" through judges relying upon case [https://en.wikipedia.org/wiki/Precedent precedents] to decide disputes by delivering judgments, which go on to serve as precedents for future judges to rely upon in deciding future disputes. <br />
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=== Community standards and values ===<br />
The disputes that form the substance of a case arise from the community over which the court has jurisdiction. The common law's inductive nature leads to community standards and values informing judicial reasoning and understanding of legal concepts, such as the concept of reasonableness. But which aspects of the community carry weight? When reading through cases, it becomes clear, for example, that the idea of [[Sandbox:Torts/Breach of duty of care|the reasonable person]] is adaptable to different contexts. It is important to be mindful of the time and place of the cases you are reading to properly situate yourself in the perspective of the court and community of the period. If you find yourself disagreeing with a judge's reasoning, ask yourself ''why –'' when and where does your reasoning break away from the court's? <br />
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=== Judicial dialogue over time within and between jurisdictions ===<br />
[[File:Map_of_the_Legal_systems_of_the_world_(en).png|link=|alt=An map of Earth with colour coding indicating the legal systems of the world|thumb|427x427px|[https://upload.wikimedia.org/wikipedia/commons/9/92/Map_of_the_Legal_systems_of_the_world_%28en%29.png Map of the legal systems of the world]|border]]When a dispute arises that presents a court with a novel issue or problem, judges can find it useful to look to other jurisdictions to see how other courts have answered the question. As the common law develops incrementally through reliance on past cases, it is not unusual for judges to engage with foreign judgments and to adopt persuasive judicial reasoning in analogous cases. <br />
== Media ==<br />
The ''Common Law Torts Wiki'' aims to be a springboard into media and other sources to help students appreciate the relevance and context of tort cases and concepts. As you explore the pages you will encounter: <br />
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*'''Quizzes:''' Self-assessment quizzes appear at the bottom of many of the pages. There is also a [https://blogs.ubc.ca/beswick/torts-quizzes/ master page] that collates all of the quizzes in one place. <br />
*'''Videos:''' Informative videos hosted externally on YouTube and elsewhere that are designed to help students wrap their heads around tort concepts.<br />
*'''News''' '''items:''' Sometimes the disputes that are of interest to law teachers and students also attracted public interest at the time and are reported in the news. News reporting often demonstrates the personal context of a legal case and its societal impact. News items appear throughout the wiki in <u>pink</u>-coloured boxes.<br />
*'''Podcasts:''' Whether the mountains of reading you might have for each class overwhelm you, or you need something to listen to during long commutes, podcasts are a great way to learn about the law in a different format than you may be used to.<br />
*'''Blogs:''' Short blog posts can be an excellent way to see how someone else has analyzed a case or the application of a specific tort.<br />
*'''Articles and books:''' Scholarly publications set out sustained explanations and critiques of the law and legal arguments. You will find journal articles and book contributions on tort law cited throughout the wiki. <br />
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{{DISPLAYTITLE:<span style="position: absolute; clip: rect(1px 1px 1px 1px); clip: rect(1px, 1px, 1px, 1px);">{{FULLPAGENAME}}</span>}}</div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Documentation:Torts/Negligence_Relational_Economic_Loss&diff=858805Documentation:Torts/Negligence Relational Economic Loss2025-04-08T18:37:25Z<p>SamuelBeswick: </p>
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<div>{{Infobox Torts }}<br />
<span style="font-size:200%;">Negligence causing relational economic loss</span><br> <br />
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Relational economic loss is one of three categories of negligence actions for [https://en.wikipedia.org/wiki/Pure_economic_loss pure economic loss] that have been recognized by Canadian courts (alongside [[Sandbox:Torts/Negligence Misrepresentation|negligent misrepresentation]] and [[Sandbox:Torts/Negligence Shoddy Goods Structures|negligent supply of shoddy goods or structures]]).<ref name=":9">''1688782 Ontario Inc. v. Maple Leaf Foods Inc.'', [https://www.canlii.org/en/ca/scc/doc/2020/2020scc35/2020scc35.html 2020 SCC 35] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_1688782_Ontario_Inc. §19.3.2.2]) at para 21.</ref> It arises when a defendant negligently inflicts harm onto a third party, or their property, that consequently causes the plaintiff pure economic loss.<ref name=":0">{{Cite journal|last=Perry|first=Ronen|date=2005|title=Relational Economic Loss: An Integrated Economic Justification for the Exclusionary Rule|url=https://www.researchgate.net/profile/Ronen-Perry-2/publication/228141002_Relational_Economic_Loss_An_Integrated_Economic_Justification_for_the_Exclusionary_Rule/links/54d22bcf0cf25ba0f0427212/Relational-Economic-Loss-An-Integrated-Economic-Justification-for-the-Exclusionary-Rule.pdf|journal=Rutgers L Rev|volume=56|issue=3|pages=716}}</ref><ref name=":2">''Design Services Ltd. v. Canada'', [https://www.canlii.org/en/ca/scc/doc/2008/2008scc22/2008scc22.html 2008 SCC 22] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Design_Services_Ltd §19.3.3.2]) at para 33.</ref> It remains controversial whether negligence liability should extend to protect the economic interests of people who are financially impacted by physical injury to another party, while not suffering physical injury themselves.<ref name=":10" /> <br />
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Canadian courts have adopted a "joint venture principle" as a means of assessing proximity in the context of relational economic loss while limiting the potential for indeterminate liability.<ref name=":1" /> A plaintiff's contractual relationship with a third party whom the defendant has injured will be relevant to the court's determination of proximity, but it is not solely determinative.<ref name=":1" /><ref name=":3" /> <br />
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Some common law jurisdictions, such as England and Wales<ref name=":4" /> and many US states,<ref name=":5">''Canadian National Railway Co. v. Norsk Pacific Steamship Co.'', [https://www.canlii.org/en/ca/scc/doc/1992/1992canlii105/1992canlii105.html 1992 CanLII 105 (SCC)], citing ''State of Louisiana ex rel. Guste v. M/V Testbank'', 1985 AMC 1521.</ref> recognize a general exclusionary rule against recovery of relational economic loss. Other jurisdictions, such as Singapore and Australia, have adopted different tests from Canada's for assessing relational economic loss claims.<ref name=":6">''NTUC Foodfare Co-operative Ltd v. SIA Engineering Company Ltd.'', [https://www.elitigation.sg/gdviewer/s/2018_SGCA_41 <nowiki>[2018] SGCA 41</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_NTUC_Foodfare_Co-op §19.3.3.3]) at paras 62–64, citing ''Caltex Oil (Australia) Pty Ltd v. The Dredge “Willemstad”'' (1976) 136 CLR 529.</ref><ref name=":7" /> <br />
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== Defining relational economic loss ==<br />
The Supreme Court of Canada in ''1688782 Ontario Inc. v. Maple Leaf Foods Inc''. recognized relational economic loss as one of three actionable categories of pure economic loss between private parties in Canadian tort law.<ref name=":9" /> Further, as with any action in negligence, a defendant's liability is governed by whether they owed the plaintiff a [[Sandbox:Torts/Duty of care|duty of care]], which hinges on establishing a relationship of proximity, amongst other factors.<ref>''1688782 Ontario Inc. v. Maple Leaf Foods Inc.'', [https://www.canlii.org/en/ca/scc/doc/2020/2020scc35/2020scc35.html 2020 SCC 35] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_1688782_Ontario_Inc. §19.3.2.2]) at paras 21–23.</ref><br />
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Relational economic loss claims concern damage suffered by the plaintiff that is purely financial, and not consequential on damage to the plaintiff's own person or property.<ref name=":0" /> In Canada, injury or property damage to a third party is a requirement for a successful negligence claim for relational economic loss.<ref>''Design Services Ltd. v. Canada'', [https://www.canlii.org/en/ca/scc/doc/2008/2008scc22/2008scc22.html 2008 SCC 22] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Design_Services_Ltd §19.3.3.2]) at para 35.</ref> <br />
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=== The "joint venture principle" in Canadian relational economic loss actions ===<br />
[[File:Taylor, Nebraska damaged bridge 7.JPG|alt=Damaged bridge with the middle collapsed and water flooding underneath and grass in the forefront.|left|thumb|Often used as an illustration of relational economic loss, the ''Canadian National Railway Co. v. Norsk Pacific Steamship Co.'' judgment involved a railway suing a steamship owner for economic loss caused by its inability to fulfill its cargo delivery contracts after the ship crashing into a bridge owned by the government, which the railway used to facilitate the transportation of cargo.<ref name=":1">''Canadian National Railway Co. v. Norsk Pacific Steamship Co.'', [https://www.canlii.org/en/ca/scc/doc/1992/1992canlii105/1992canlii105.html 1992 CanLII 105 (SCC)].</ref>]]The Supreme Court of Canada in ''Canadian National Railway Co. v. Norsk Pacific Steamship Co.'' held that relational economic loss may be recoverable when the plaintiff establishes a relationship of proximity with the defendant through the plaintiff's "joint venture" with the physically injured their party.<ref>''NTUC Foodfare Co-operative Ltd v. SIA Engineering Company Ltd.'', [https://www.elitigation.sg/gdviewer/s/2018_SGCA_41 <nowiki>[2018] SGCA 41</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_NTUC_Foodfare_Co-op §19.3.3.3]) at para 69, citing ''Canadian National Railway Co. v. Norsk Pacific Steamship Co.'', [https://www.canlii.org/en/ca/scc/doc/1992/1992canlii105/1992canlii105.html 1992 CanLII 105 (SCC)].</ref> La Forest J, writing for the dissent in ''Norsk'', was reluctant to recognize this "joint venture principle" and stated that the plaintiff should have been limited to its contractual rights against the third party to receive compensation in that case.<ref name=":1" /> La Forest J was of the view that relational economic loss may be actionable under certain circumstances, but not in that case given the overarching policy concerns that recognizing the defendant's liability in tort might encroach on contract law.<ref name=":1" /><br />
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The majority viewed judge-made exclusionary rules surrounding relational economic loss as arbitrary, and departed from the English common law in this respect.<ref name=":1" /> Writing for the majority, McLachlin CJ explained that Canadian courts have long recognized economic loss as recoverable in tort law, even absent injury to the plaintiff's person or property, in principled circumstances. These circumstances are not governed by any exclusionary rule, but rather by the general test for negligence in Canada: the ''Anns/Cooper'' test.<ref name=":1" /> <br />
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To alleviate concerns of indeterminate liability that might arise from recognizing a duty to care in ''Norsk'', the majority adopted the "joint venture principle" as part of the proximity analysis.<ref name=":1" /> McLachlin CJ stated that courts should be flexible in determining whether a joint venture existed between the physically injured third party and the plaintiff who has suffered pure economic loss, based on all relevant contextual factors, rather than merely the details of a contract between the plaintiff and the third party, as preferred by La Forest J.<ref name=":1" /> The Court described a joint common venture as a relationship "with the property owner with the result that in justice [the plaintiff's] rights against third parties should be the same as the owner's".<ref name=":1" /><br />
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Some academic commentators, as well as other common law courts, have criticized the majority's "joint venture" approach to relational economic in ''Norsk'' as uncertain and incoherent with the general framework for negligence claims.<ref name=":10">{{Cite journal|last=Feldthusen|first=Bruce|date=1996|title=The Recovery of Pure Economic Loss in Canada: Proximity, Justice, Rationality, and Chaos|url=https://www.canlii.org/en/commentary/doc/1996CanLIIDocs157#!fragment//BQCwhgziBcwMYgK4DsDWszIQewE4BUBTADwBdoByCgSgBpltTCIBFRQ3AT0otokLC4EbDtyp8BQkAGU8pAELcASgFEAMioBqAQQByAYRW1SYAEbRS2ONWpA|journal=Manitoba LJ|volume=24|issue=1|pages=21}}</ref><ref>''NTUC Foodfare Co-operative Ltd v. SIA Engineering Company Ltd.'', [https://www.elitigation.sg/gdviewer/s/2018_SGCA_41 <nowiki>[2018] SGCA 41</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_NTUC_Foodfare_Co-op §19.3.3.3]) at paras 70–73.</ref><br />
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=== Intersections with contract law ===<br />
The Supreme Court of Canada in ''Norsk'' averred that “the plaintiff’s ability to foresee and provide for the particular damage in question is a key factor in the proximity analysis”.<ref>''Design Services Ltd. v. Canada'', [https://www.canlii.org/en/ca/scc/doc/2008/2008scc22/2008scc22.html 2008 SCC 22] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Design_Services_Ltd §19.3.3.2]) at para 33, citing ''Canadian National Railway Co. v. Norsk Pacific Steamship Co.'', [https://www.canlii.org/en/ca/scc/doc/1992/1992canlii105/1992canlii105.html 1992 CanLII 105 (SCC)].</ref> In ''Design Services Ltd. v. Canada'', the Court stated that, when determining whether the relationship between the defendant and plaintiff was sufficiently proximate to establish a duty of care under the ''Anns/Cooper'' test in the context of pure economic loss, the Court will consider whether the plaintiff had an opportunity to protect themself from economic loss via contract and declined to do so.<ref>''Design Services Ltd. v. Canada'', [https://www.canlii.org/en/ca/scc/doc/2008/2008scc22/2008scc22.html 2008 SCC 22] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Design_Services_Ltd §19.3.3.2]) at para 54.</ref> <br />
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For example, in ''Design Services'', the subcontractor plaintiff suffered relational economic loss resulting from a failed tendering process between the general contractor and the Canadian government.<ref>''Design Services Ltd. v. Canada'', [https://www.canlii.org/en/ca/scc/doc/2008/2008scc22/2008scc22.html 2008 SCC 22] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Design_Services_Ltd §19.3.3.2]).</ref> The Supreme Court of Canada found that no duty of care should be recognized between the government and the subcontractor plaintiff, as the tendering process provided an opportunity for a subcontractor and general contractor to submit the tender as a joint venture, thereby making the subcontractor party to the contract.<ref>''Design Services Ltd. v. Canada'', [https://www.canlii.org/en/ca/scc/doc/2008/2008scc22/2008scc22.html 2008 SCC 22] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Design_Services_Ltd §19.3.3.2]) at paras 55–58.</ref> However, the plaintiff declined to do so, which the Court ultimately viewed as fatal to the recognition of a duty of care between the government and the plaintiff, stating that recognizing a duty of care in such circumstances would allow the plaintiff to circumvent the deliberately arranged contractual rights of the parties involved in the tendering process.<ref name=":3">''Design Services Ltd. v. Canada'', [https://www.canlii.org/en/ca/scc/doc/2008/2008scc22/2008scc22.html 2008 SCC 22] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Design_Services_Ltd §19.3.3.2]) at para 56.</ref> <br />
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==Divergent stances on relational economic loss across other common law jurisdictions==<br />
=== England and Wales ===<br />
English common law rejects negligence causing relational economic loss as actionable in tort.<ref name=":4">''Armstead v. Royal & Sun Alliance Insurance Company Ltd.'', [https://www.bailii.org/uk/cases/UKSC/2024/6.html <nowiki>[2024] UKSC 6</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Armstead_v._Royal_1 §19.3.3.1]).</ref> As put unanimously by the UK Supreme Court in ''Armstead v. Royal & Sun Alliance Insurance Company Ltd.'', "someone who negligently causes physical damage to another person’s property is not liable to pay compensation to a third party claimant who suffers financial loss as a result of the damage".<ref>''Armstead v. Royal & Sun Alliance Insurance Company Ltd.'', [https://www.bailii.org/uk/cases/UKSC/2024/6.html <nowiki>[2024] UKSC 6</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Armstead_v._Royal_1 §19.3.3.1]) at para 20.</ref><br />
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=== United States ===<br />
Many US states have applied a similar exclusionary doctrine to claims for pure economic loss as the UK.<ref name=":5" /> The Fifth Circuit in ''Lousiana v. M/V Testbank'' upheld a rule, originally set out in ''Robins Dry Dock v. Flint'', that excludes all claims for relational economic loss absent physical injury to the plaintiff.<ref name=":5" /><br />
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=== Australia ===<br />
Australian common law recognizes relational economic loss as actionable in certain cases. The High Court of Australia in ''Caltex Oil (Australia) Pty Ltd. v. The Dredge "Willemstad"'' adopted a "known plaintiff" test that operates to alleviate concerns of indeterminate liability.<ref name=":6" /> Under the known plaintiff test, the defendant will only be liable for economic loss sustained by a plaintiff whom they specifically knew would suffer economic loss as a result of their negligence.<ref name=":6" /> Courts of other common law jurisdictions in the UK, Canada, and Singapore have criticized the "known plaintiff" test for being unjust and arbitrary, due to its only rationale for existing being as a tool to solve the problem of indeterminate liability.<ref>''NTUC Foodfare Co-operative Ltd v. SIA Engineering Company Ltd.'', [https://www.elitigation.sg/gdviewer/s/2018_SGCA_41 <nowiki>[2018] SGCA 41</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_NTUC_Foodfare_Co-op §19.3.3.3]) at para 64.</ref><br />
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=== Singapore ===<br />
The Singapore Court of Appeal in ''Spandeck Engineering (S) Pte Ltd v, Defence Science & Technology Agency'' made a principled departure from English common law, which does not recognize negligence claims for pure economic loss.<ref>''NTUC Foodfare Co-operative Ltd v. SIA Engineering Company Ltd.'', [https://www.elitigation.sg/gdviewer/s/2018_SGCA_41 <nowiki>[2018] SGCA 41</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_NTUC_Foodfare_Co-op §19.3.3.3]) at para 1, citing ''Spandeck Engineering (S) Pte Ltd. v. Defence Science & Technology Agency'', [2007] 4 SLR(R) 100.</ref> In explaining why Singaporean common law departed from English common law in this respect, the Court later stated, in ''NTUC Foodfare Co-operative Ltd. v. SIA Engineering Company Ltd.'':<ref name=":8">''NTUC Foodfare Co-operative Ltd v. SIA Engineering Company Ltd.'', [https://www.elitigation.sg/gdviewer/s/2018_SGCA_41 <nowiki>[2018] SGCA 41</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_NTUC_Foodfare_Co-op §19.3.3.3]) at paras 2–3.</ref><blockquote>The basis of [the ''Spandeck''] holding was the recognition that there is nothing intrinsically objectionable about recovery for pure economic loss. It is not the nature of such loss, but the circumstances in which it arises, which underpins the exclusionary rule. Unlike physical damage, economic losses are not constrained by the laws of nature: they often ripple out from a negligent act due to human responses to the same. This gives rise to the concern of indeterminate liability: that to allow recovery for pure economic loss might lead to liability for an indeterminate amount to an indeterminate class.<br />
<br />
It was to address this concern that the common law barred recovery for economic loss unless such loss was ''consequent'' upon physical damage to person or property. Yet in ''Spandeck'', we recognised that the exclusionary rule is a blunt tool for this purpose. In some cases, the concern of indeterminate liability it was designed to address will never arise. In such cases, there may be scant reason to disallow recovery for pure economic loss... Applying the exclusionary rule may thus lead to injustice. Accordingly, in ''Spandeck'', we rejected the exclusionary rule in favour of a single test for a duty of care in tort, premised on proximity and policy considerations.</blockquote>At the proximity stage of establishing a duty of care, Singaporean courts will consider factors such as the defendant's control over the situation giving rise to the risk of harm and their knowledge in relation to the plaintiff and the plaintiff's vulnerability or reliance.<ref name=":7">''NTUC Foodfare Co-operative Ltd v. SIA Engineering Company Ltd.'', [https://www.elitigation.sg/gdviewer/s/2018_SGCA_41 <nowiki>[2018] SGCA 41</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_NTUC_Foodfare_Co-op §19.3.3.3]) at para 40, citing ''Anwar Patrick Adrian v. Ng Chong & Hue LLC'', [2014] 3 SLR 761.</ref> Additionally, other factors such as physical, circumstantial, and causal proximity between the defendant and the plaintiff will be considered when determining whether the defendant owed the plaintiff a duty of care.<ref>''NTUC Foodfare Co-operative Ltd v. SIA Engineering Company Ltd.'', [https://www.elitigation.sg/gdviewer/s/2018_SGCA_41 <nowiki>[2018] SGCA 41</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_NTUC_Foodfare_Co-op §19.3.3.3]) at para 40, citing ''Sutherland Shire Council v. Heyman'', [https://www.canlii.org/en/ab/abca/doc/1988/1988abca234/1988abca234.html 1988 ABCA 234].</ref> Singaporean courts have also advocated for the rigorous application of the [[Sandbox:Torts/Remoteness in law|remoteness]] doctrine so as to curtail issues of indeterminate liability that may arise from the recognition of a duty of care.<ref>''NTUC Foodfare Co-operative Ltd v. SIA Engineering Company Ltd.'', [https://www.elitigation.sg/gdviewer/s/2018_SGCA_41 <nowiki>[2018] SGCA 41</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_NTUC_Foodfare_Co-op §19.3.3.3]) at paras 42–43.</ref><br />
<br />
==Discussion questions==<br />
<br />
*What is relational economic loss? Why is relational economic loss often not recoverable in a tort action?<br />
*The Supreme Court of Canada, in ''Design Services Ltd. v. Canada'', described the appellants’ action as an “unjustifiable encroachment of tort law into the realm of contract law.”<ref>''Design Services Ltd. v. Canada'', [https://www.canlii.org/en/ca/scc/doc/2008/2008scc22/2008scc22.html 2008 SCC 22] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Design_Services_Ltd §19.3.3.2]) at para 56.</ref> Are these areas of law mutually exclusive?<br />
*What is the rationale of precluding tort claims where they concern contractual choices made willingly by the parties?<br />
*Given the challenges of assessing proximity in relational economic loss cases, is the Singapore Court of Appeal’s reasoning in ''NTUC Foodfare Co-operative Ltd. v. SIA Engineering Company Ltd.'' that relational economic loss should not be subject to a special proximity analysis persuasive?<ref name=":8" /><br />
*In light of the diverging jurisprudential perspectives on relational economic loss in other common law jurisdictions, is Canada's reliance on the "joint venture principle" in the context of relational economic loss claims principled?<ref name=":1" /> What alternative standards are available to Canadian courts to minimize indeterminate liability in the context of relational economic loss claims?<br />
<br />
{{DISPLAYTITLE:<span style="position: absolute; clip: rect(1px 1px 1px 1px); clip: rect(1px, 1px, 1px, 1px);">{{FULLPAGENAME}}</span>}}<br />
<references /></div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Documentation:Torts/Negligence_Relational_Economic_Loss&diff=858804Documentation:Torts/Negligence Relational Economic Loss2025-04-08T18:37:17Z<p>SamuelBeswick: </p>
<hr />
<div>{{Infobox Torts }}<br />
<span style="font-size:200%;">Negligence causing relational economic loss</span><br> <br />
<br />
Relational economic loss is one of three categories of negligence actions for for [https://en.wikipedia.org/wiki/Pure_economic_loss pure economic loss] that have been recognized by Canadian courts (alongside [[Sandbox:Torts/Negligence Misrepresentation|negligent misrepresentation]] and [[Sandbox:Torts/Negligence Shoddy Goods Structures|negligent supply of shoddy goods or structures]]).<ref name=":9">''1688782 Ontario Inc. v. Maple Leaf Foods Inc.'', [https://www.canlii.org/en/ca/scc/doc/2020/2020scc35/2020scc35.html 2020 SCC 35] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_1688782_Ontario_Inc. §19.3.2.2]) at para 21.</ref> It arises when a defendant negligently inflicts harm onto a third party, or their property, that consequently causes the plaintiff pure economic loss.<ref name=":0">{{Cite journal|last=Perry|first=Ronen|date=2005|title=Relational Economic Loss: An Integrated Economic Justification for the Exclusionary Rule|url=https://www.researchgate.net/profile/Ronen-Perry-2/publication/228141002_Relational_Economic_Loss_An_Integrated_Economic_Justification_for_the_Exclusionary_Rule/links/54d22bcf0cf25ba0f0427212/Relational-Economic-Loss-An-Integrated-Economic-Justification-for-the-Exclusionary-Rule.pdf|journal=Rutgers L Rev|volume=56|issue=3|pages=716}}</ref><ref name=":2">''Design Services Ltd. v. Canada'', [https://www.canlii.org/en/ca/scc/doc/2008/2008scc22/2008scc22.html 2008 SCC 22] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Design_Services_Ltd §19.3.3.2]) at para 33.</ref> It remains controversial whether negligence liability should extend to protect the economic interests of people who are financially impacted by physical injury to another party, while not suffering physical injury themselves.<ref name=":10" /> <br />
<br />
Canadian courts have adopted a "joint venture principle" as a means of assessing proximity in the context of relational economic loss while limiting the potential for indeterminate liability.<ref name=":1" /> A plaintiff's contractual relationship with a third party whom the defendant has injured will be relevant to the court's determination of proximity, but it is not solely determinative.<ref name=":1" /><ref name=":3" /> <br />
<br />
Some common law jurisdictions, such as England and Wales<ref name=":4" /> and many US states,<ref name=":5">''Canadian National Railway Co. v. Norsk Pacific Steamship Co.'', [https://www.canlii.org/en/ca/scc/doc/1992/1992canlii105/1992canlii105.html 1992 CanLII 105 (SCC)], citing ''State of Louisiana ex rel. Guste v. M/V Testbank'', 1985 AMC 1521.</ref> recognize a general exclusionary rule against recovery of relational economic loss. Other jurisdictions, such as Singapore and Australia, have adopted different tests from Canada's for assessing relational economic loss claims.<ref name=":6">''NTUC Foodfare Co-operative Ltd v. SIA Engineering Company Ltd.'', [https://www.elitigation.sg/gdviewer/s/2018_SGCA_41 <nowiki>[2018] SGCA 41</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_NTUC_Foodfare_Co-op §19.3.3.3]) at paras 62–64, citing ''Caltex Oil (Australia) Pty Ltd v. The Dredge “Willemstad”'' (1976) 136 CLR 529.</ref><ref name=":7" /> <br />
<br />
== Defining relational economic loss ==<br />
The Supreme Court of Canada in ''1688782 Ontario Inc. v. Maple Leaf Foods Inc''. recognized relational economic loss as one of three actionable categories of pure economic loss between private parties in Canadian tort law.<ref name=":9" /> Further, as with any action in negligence, a defendant's liability is governed by whether they owed the plaintiff a [[Sandbox:Torts/Duty of care|duty of care]], which hinges on establishing a relationship of proximity, amongst other factors.<ref>''1688782 Ontario Inc. v. Maple Leaf Foods Inc.'', [https://www.canlii.org/en/ca/scc/doc/2020/2020scc35/2020scc35.html 2020 SCC 35] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_1688782_Ontario_Inc. §19.3.2.2]) at paras 21–23.</ref><br />
<br />
Relational economic loss claims concern damage suffered by the plaintiff that is purely financial, and not consequential on damage to the plaintiff's own person or property.<ref name=":0" /> In Canada, injury or property damage to a third party is a requirement for a successful negligence claim for relational economic loss.<ref>''Design Services Ltd. v. Canada'', [https://www.canlii.org/en/ca/scc/doc/2008/2008scc22/2008scc22.html 2008 SCC 22] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Design_Services_Ltd §19.3.3.2]) at para 35.</ref> <br />
<br />
=== The "joint venture principle" in Canadian relational economic loss actions ===<br />
[[File:Taylor, Nebraska damaged bridge 7.JPG|alt=Damaged bridge with the middle collapsed and water flooding underneath and grass in the forefront.|left|thumb|Often used as an illustration of relational economic loss, the ''Canadian National Railway Co. v. Norsk Pacific Steamship Co.'' judgment involved a railway suing a steamship owner for economic loss caused by its inability to fulfill its cargo delivery contracts after the ship crashing into a bridge owned by the government, which the railway used to facilitate the transportation of cargo.<ref name=":1">''Canadian National Railway Co. v. Norsk Pacific Steamship Co.'', [https://www.canlii.org/en/ca/scc/doc/1992/1992canlii105/1992canlii105.html 1992 CanLII 105 (SCC)].</ref>]]The Supreme Court of Canada in ''Canadian National Railway Co. v. Norsk Pacific Steamship Co.'' held that relational economic loss may be recoverable when the plaintiff establishes a relationship of proximity with the defendant through the plaintiff's "joint venture" with the physically injured their party.<ref>''NTUC Foodfare Co-operative Ltd v. SIA Engineering Company Ltd.'', [https://www.elitigation.sg/gdviewer/s/2018_SGCA_41 <nowiki>[2018] SGCA 41</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_NTUC_Foodfare_Co-op §19.3.3.3]) at para 69, citing ''Canadian National Railway Co. v. Norsk Pacific Steamship Co.'', [https://www.canlii.org/en/ca/scc/doc/1992/1992canlii105/1992canlii105.html 1992 CanLII 105 (SCC)].</ref> La Forest J, writing for the dissent in ''Norsk'', was reluctant to recognize this "joint venture principle" and stated that the plaintiff should have been limited to its contractual rights against the third party to receive compensation in that case.<ref name=":1" /> La Forest J was of the view that relational economic loss may be actionable under certain circumstances, but not in that case given the overarching policy concerns that recognizing the defendant's liability in tort might encroach on contract law.<ref name=":1" /><br />
<br />
The majority viewed judge-made exclusionary rules surrounding relational economic loss as arbitrary, and departed from the English common law in this respect.<ref name=":1" /> Writing for the majority, McLachlin CJ explained that Canadian courts have long recognized economic loss as recoverable in tort law, even absent injury to the plaintiff's person or property, in principled circumstances. These circumstances are not governed by any exclusionary rule, but rather by the general test for negligence in Canada: the ''Anns/Cooper'' test.<ref name=":1" /> <br />
<br />
To alleviate concerns of indeterminate liability that might arise from recognizing a duty to care in ''Norsk'', the majority adopted the "joint venture principle" as part of the proximity analysis.<ref name=":1" /> McLachlin CJ stated that courts should be flexible in determining whether a joint venture existed between the physically injured third party and the plaintiff who has suffered pure economic loss, based on all relevant contextual factors, rather than merely the details of a contract between the plaintiff and the third party, as preferred by La Forest J.<ref name=":1" /> The Court described a joint common venture as a relationship "with the property owner with the result that in justice [the plaintiff's] rights against third parties should be the same as the owner's".<ref name=":1" /><br />
<br />
Some academic commentators, as well as other common law courts, have criticized the majority's "joint venture" approach to relational economic in ''Norsk'' as uncertain and incoherent with the general framework for negligence claims.<ref name=":10">{{Cite journal|last=Feldthusen|first=Bruce|date=1996|title=The Recovery of Pure Economic Loss in Canada: Proximity, Justice, Rationality, and Chaos|url=https://www.canlii.org/en/commentary/doc/1996CanLIIDocs157#!fragment//BQCwhgziBcwMYgK4DsDWszIQewE4BUBTADwBdoByCgSgBpltTCIBFRQ3AT0otokLC4EbDtyp8BQkAGU8pAELcASgFEAMioBqAQQByAYRW1SYAEbRS2ONWpA|journal=Manitoba LJ|volume=24|issue=1|pages=21}}</ref><ref>''NTUC Foodfare Co-operative Ltd v. SIA Engineering Company Ltd.'', [https://www.elitigation.sg/gdviewer/s/2018_SGCA_41 <nowiki>[2018] SGCA 41</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_NTUC_Foodfare_Co-op §19.3.3.3]) at paras 70–73.</ref><br />
<br />
=== Intersections with contract law ===<br />
The Supreme Court of Canada in ''Norsk'' averred that “the plaintiff’s ability to foresee and provide for the particular damage in question is a key factor in the proximity analysis”.<ref>''Design Services Ltd. v. Canada'', [https://www.canlii.org/en/ca/scc/doc/2008/2008scc22/2008scc22.html 2008 SCC 22] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Design_Services_Ltd §19.3.3.2]) at para 33, citing ''Canadian National Railway Co. v. Norsk Pacific Steamship Co.'', [https://www.canlii.org/en/ca/scc/doc/1992/1992canlii105/1992canlii105.html 1992 CanLII 105 (SCC)].</ref> In ''Design Services Ltd. v. Canada'', the Court stated that, when determining whether the relationship between the defendant and plaintiff was sufficiently proximate to establish a duty of care under the ''Anns/Cooper'' test in the context of pure economic loss, the Court will consider whether the plaintiff had an opportunity to protect themself from economic loss via contract and declined to do so.<ref>''Design Services Ltd. v. Canada'', [https://www.canlii.org/en/ca/scc/doc/2008/2008scc22/2008scc22.html 2008 SCC 22] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Design_Services_Ltd §19.3.3.2]) at para 54.</ref> <br />
<br />
For example, in ''Design Services'', the subcontractor plaintiff suffered relational economic loss resulting from a failed tendering process between the general contractor and the Canadian government.<ref>''Design Services Ltd. v. Canada'', [https://www.canlii.org/en/ca/scc/doc/2008/2008scc22/2008scc22.html 2008 SCC 22] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Design_Services_Ltd §19.3.3.2]).</ref> The Supreme Court of Canada found that no duty of care should be recognized between the government and the subcontractor plaintiff, as the tendering process provided an opportunity for a subcontractor and general contractor to submit the tender as a joint venture, thereby making the subcontractor party to the contract.<ref>''Design Services Ltd. v. Canada'', [https://www.canlii.org/en/ca/scc/doc/2008/2008scc22/2008scc22.html 2008 SCC 22] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Design_Services_Ltd §19.3.3.2]) at paras 55–58.</ref> However, the plaintiff declined to do so, which the Court ultimately viewed as fatal to the recognition of a duty of care between the government and the plaintiff, stating that recognizing a duty of care in such circumstances would allow the plaintiff to circumvent the deliberately arranged contractual rights of the parties involved in the tendering process.<ref name=":3">''Design Services Ltd. v. Canada'', [https://www.canlii.org/en/ca/scc/doc/2008/2008scc22/2008scc22.html 2008 SCC 22] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Design_Services_Ltd §19.3.3.2]) at para 56.</ref> <br />
<br />
==Divergent stances on relational economic loss across other common law jurisdictions==<br />
=== England and Wales ===<br />
English common law rejects negligence causing relational economic loss as actionable in tort.<ref name=":4">''Armstead v. Royal & Sun Alliance Insurance Company Ltd.'', [https://www.bailii.org/uk/cases/UKSC/2024/6.html <nowiki>[2024] UKSC 6</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Armstead_v._Royal_1 §19.3.3.1]).</ref> As put unanimously by the UK Supreme Court in ''Armstead v. Royal & Sun Alliance Insurance Company Ltd.'', "someone who negligently causes physical damage to another person’s property is not liable to pay compensation to a third party claimant who suffers financial loss as a result of the damage".<ref>''Armstead v. Royal & Sun Alliance Insurance Company Ltd.'', [https://www.bailii.org/uk/cases/UKSC/2024/6.html <nowiki>[2024] UKSC 6</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Armstead_v._Royal_1 §19.3.3.1]) at para 20.</ref><br />
<br />
=== United States ===<br />
Many US states have applied a similar exclusionary doctrine to claims for pure economic loss as the UK.<ref name=":5" /> The Fifth Circuit in ''Lousiana v. M/V Testbank'' upheld a rule, originally set out in ''Robins Dry Dock v. Flint'', that excludes all claims for relational economic loss absent physical injury to the plaintiff.<ref name=":5" /><br />
<br />
=== Australia ===<br />
Australian common law recognizes relational economic loss as actionable in certain cases. The High Court of Australia in ''Caltex Oil (Australia) Pty Ltd. v. The Dredge "Willemstad"'' adopted a "known plaintiff" test that operates to alleviate concerns of indeterminate liability.<ref name=":6" /> Under the known plaintiff test, the defendant will only be liable for economic loss sustained by a plaintiff whom they specifically knew would suffer economic loss as a result of their negligence.<ref name=":6" /> Courts of other common law jurisdictions in the UK, Canada, and Singapore have criticized the "known plaintiff" test for being unjust and arbitrary, due to its only rationale for existing being as a tool to solve the problem of indeterminate liability.<ref>''NTUC Foodfare Co-operative Ltd v. SIA Engineering Company Ltd.'', [https://www.elitigation.sg/gdviewer/s/2018_SGCA_41 <nowiki>[2018] SGCA 41</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_NTUC_Foodfare_Co-op §19.3.3.3]) at para 64.</ref><br />
<br />
=== Singapore ===<br />
The Singapore Court of Appeal in ''Spandeck Engineering (S) Pte Ltd v, Defence Science & Technology Agency'' made a principled departure from English common law, which does not recognize negligence claims for pure economic loss.<ref>''NTUC Foodfare Co-operative Ltd v. SIA Engineering Company Ltd.'', [https://www.elitigation.sg/gdviewer/s/2018_SGCA_41 <nowiki>[2018] SGCA 41</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_NTUC_Foodfare_Co-op §19.3.3.3]) at para 1, citing ''Spandeck Engineering (S) Pte Ltd. v. Defence Science & Technology Agency'', [2007] 4 SLR(R) 100.</ref> In explaining why Singaporean common law departed from English common law in this respect, the Court later stated, in ''NTUC Foodfare Co-operative Ltd. v. SIA Engineering Company Ltd.'':<ref name=":8">''NTUC Foodfare Co-operative Ltd v. SIA Engineering Company Ltd.'', [https://www.elitigation.sg/gdviewer/s/2018_SGCA_41 <nowiki>[2018] SGCA 41</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_NTUC_Foodfare_Co-op §19.3.3.3]) at paras 2–3.</ref><blockquote>The basis of [the ''Spandeck''] holding was the recognition that there is nothing intrinsically objectionable about recovery for pure economic loss. It is not the nature of such loss, but the circumstances in which it arises, which underpins the exclusionary rule. Unlike physical damage, economic losses are not constrained by the laws of nature: they often ripple out from a negligent act due to human responses to the same. This gives rise to the concern of indeterminate liability: that to allow recovery for pure economic loss might lead to liability for an indeterminate amount to an indeterminate class.<br />
<br />
It was to address this concern that the common law barred recovery for economic loss unless such loss was ''consequent'' upon physical damage to person or property. Yet in ''Spandeck'', we recognised that the exclusionary rule is a blunt tool for this purpose. In some cases, the concern of indeterminate liability it was designed to address will never arise. In such cases, there may be scant reason to disallow recovery for pure economic loss... Applying the exclusionary rule may thus lead to injustice. Accordingly, in ''Spandeck'', we rejected the exclusionary rule in favour of a single test for a duty of care in tort, premised on proximity and policy considerations.</blockquote>At the proximity stage of establishing a duty of care, Singaporean courts will consider factors such as the defendant's control over the situation giving rise to the risk of harm and their knowledge in relation to the plaintiff and the plaintiff's vulnerability or reliance.<ref name=":7">''NTUC Foodfare Co-operative Ltd v. SIA Engineering Company Ltd.'', [https://www.elitigation.sg/gdviewer/s/2018_SGCA_41 <nowiki>[2018] SGCA 41</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_NTUC_Foodfare_Co-op §19.3.3.3]) at para 40, citing ''Anwar Patrick Adrian v. Ng Chong & Hue LLC'', [2014] 3 SLR 761.</ref> Additionally, other factors such as physical, circumstantial, and causal proximity between the defendant and the plaintiff will be considered when determining whether the defendant owed the plaintiff a duty of care.<ref>''NTUC Foodfare Co-operative Ltd v. SIA Engineering Company Ltd.'', [https://www.elitigation.sg/gdviewer/s/2018_SGCA_41 <nowiki>[2018] SGCA 41</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_NTUC_Foodfare_Co-op §19.3.3.3]) at para 40, citing ''Sutherland Shire Council v. Heyman'', [https://www.canlii.org/en/ab/abca/doc/1988/1988abca234/1988abca234.html 1988 ABCA 234].</ref> Singaporean courts have also advocated for the rigorous application of the [[Sandbox:Torts/Remoteness in law|remoteness]] doctrine so as to curtail issues of indeterminate liability that may arise from the recognition of a duty of care.<ref>''NTUC Foodfare Co-operative Ltd v. SIA Engineering Company Ltd.'', [https://www.elitigation.sg/gdviewer/s/2018_SGCA_41 <nowiki>[2018] SGCA 41</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_NTUC_Foodfare_Co-op §19.3.3.3]) at paras 42–43.</ref><br />
<br />
==Discussion questions==<br />
<br />
*What is relational economic loss? Why is relational economic loss often not recoverable in a tort action?<br />
*The Supreme Court of Canada, in ''Design Services Ltd. v. Canada'', described the appellants’ action as an “unjustifiable encroachment of tort law into the realm of contract law.”<ref>''Design Services Ltd. v. Canada'', [https://www.canlii.org/en/ca/scc/doc/2008/2008scc22/2008scc22.html 2008 SCC 22] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Design_Services_Ltd §19.3.3.2]) at para 56.</ref> Are these areas of law mutually exclusive?<br />
*What is the rationale of precluding tort claims where they concern contractual choices made willingly by the parties?<br />
*Given the challenges of assessing proximity in relational economic loss cases, is the Singapore Court of Appeal’s reasoning in ''NTUC Foodfare Co-operative Ltd. v. SIA Engineering Company Ltd.'' that relational economic loss should not be subject to a special proximity analysis persuasive?<ref name=":8" /><br />
*In light of the diverging jurisprudential perspectives on relational economic loss in other common law jurisdictions, is Canada's reliance on the "joint venture principle" in the context of relational economic loss claims principled?<ref name=":1" /> What alternative standards are available to Canadian courts to minimize indeterminate liability in the context of relational economic loss claims?<br />
<br />
{{DISPLAYTITLE:<span style="position: absolute; clip: rect(1px 1px 1px 1px); clip: rect(1px, 1px, 1px, 1px);">{{FULLPAGENAME}}</span>}}<br />
<references /></div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Documentation:Torts/Negligence_Shoddy_Goods_Structures&diff=858803Documentation:Torts/Negligence Shoddy Goods Structures2025-04-08T18:37:08Z<p>SamuelBeswick: `</p>
<hr />
<div>{{Infobox Torts }}<br />
<span style="font-size:200%;">Negligent supply of shoddy goods or structures</span><br><br />
<br />
Negligent supply of shoddy goods or structures is one of three categories of negligence actions for [https://en.wikipedia.org/wiki/Pure_economic_loss pure economic loss] that have been recognized by Canadian courts (alongside [[Sandbox:Torts/Negligence Misrepresentation|negligent misrepresentation]] and [[Sandbox:Torts/Negligence Relational Economic Loss|negligence causing relational economic loss]]).<ref name=":3">''1688782 Ontario Inc. v. Maple Leaf Foods Inc.'', [https://www.canlii.org/en/ca/scc/doc/2020/2020scc35/2020scc35.html 2020 SCC 35] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_1688782_Ontario_Inc. §19.3.2.2]) at paras 21–23.</ref> It remedies economic loss suffered by a plaintiff in restoring a dangerously defective product supplied by the defendant to a safe state.<ref name=":4">''Winnipeg Condominium Corporation No. 36 v. Bird Construction Co.'', [https://canlii.ca/t/1frm5 1995 CanLII 146 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Winnipeg_Condominium_Corp. §19.3.2.1]) at para 43.</ref><ref name=":5">''1688782 Ontario Inc. v. Maple Leaf Foods Inc.'', [https://www.canlii.org/en/ca/scc/doc/2020/2020scc35/2020scc35.html 2020 SCC 35] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_1688782_Ontario_Inc. §19.3.2.2]) at paras 47–49.</ref> This category of negligence arises when the shoddy good or structure causes the plaintiff pure economic loss, but has not (yet) caused physical harm to the plaintiff's person or property.<ref name=":6" /><ref name=":9" /> <br />
<br />
The Supreme Court of Canada has held that the shoddy good must be dangerous for the plaintiff to succeed in a claim under this category of negligence.<ref name=":10" /> If the good or structure is shoddy, but not dangerous, the plaintiff will be restricted to a claim under contract law or statute.<ref name=":10" /><ref name=":11">''Arora v Whirlpool Canada LP'', [https://canlii.ca/t/g2044 2013 ONCA 657] at para 116.</ref> <br />
==Defining negligent supply of shoddy goods or structures==<br />
The Supreme Court of Canada in ''1688782 Ontario Inc. v. Maple Leaf Foods Inc.'' affirmed negligent supply of shoddy goods or structures as a category of negligence.<ref name=":3" /> As with any action in negligence, a defendant's liability is premised on whether they owed the plaintiff a [[Sandbox:Torts/Duty of care|duty of care]], which hinges on a relationship of proximity, amongst other factors.<ref name=":3" /> The Court held that the scope of recovery under this category is limited to redressing the costs to the plaintiff in discarding of the danger or restoring the dangerously defective item to a non-dangerous state.<ref name=":5" /> <br />
<br />
=== Differentiating between negligent supply of harmful products and negligent supply of shoddy goods or structures ===<br />
Unlike [https://wiki.ubc.ca/Sandbox:Torts/Negligence_Products?veaction=edit product liability] cases, which concern the negligent supply of products that cause injury to a person or property, the negligent supply of shoddy goods category is engaged when a plaintiff suffers only pure economic loss.<ref name=":6">''1688782 Ontario Inc. v. Maple Leaf Foods Inc.'', [https://www.canlii.org/en/ca/scc/doc/2020/2020scc35/2020scc35.html 2020 SCC 35] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_1688782_Ontario_Inc. §19.3.2.2]) at para 17.</ref><ref name=":9">Kairos Angaddol (19 July 2023). [https://www.lexpert.ca/legal-faq/product-liability-in-canada-who-is-at-fault/377983# "Product liability in Canada: who is at fault?"]. ''Lexpert''.</ref> The Supreme Court of Canada distinguished between these two types of damage in ''Maple Leaf Foods.'', stating that:<ref name=":6" /><blockquote>Pure economic loss is economic loss that is unconnected to a physical or mental injury to the plaintiff’s person, or to physical damage to property... It is distinct, therefore, from ''consequential'' economic loss, being economic loss that results from damage to the plaintiff’s rights, such as wage losses or costs of care incurred by someone physically or mentally injured, or the value of lost production caused by damage to machinery, or lost sales caused by damage to delivery vehicles.</blockquote><br />
<br />
== Development of negligent supply of shoddy goods or structures in Canadian common law ==<br />
[[File:Link condo 310 W52 2023 jeh.jpg|alt=Two high rise glass condominium buildings in the background with a short, tan Hampton Inn building in the forefront. |left|thumb|252x252px|The ''Winnipeg Condominium'' judgment involved a condo building with defective cladding due to negligence by the defendant contractor which posed substantial danger to the inhabitants of the condo.<ref name=":8">''Winnipeg Condominium Corporation No. 36 v. Bird Construction Co.'', [https://canlii.ca/t/1frm5 1995 CanLII 146 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Winnipeg_Condominium_Corp. §19.3.2.1]) at paras 3–5.</ref>]]<br />
=== Origins in ''Winnipeg Condominium'' ===<br />
In the watershed case of ''Winnipeg Condominium Corp. No. 36 v. Bird Construction Co.'', the Supreme Court of Canada departed from the English common law by recognizing defendant liability under negligence for the supply of shoddy goods or structures beyond situations where the shoddy good/structure has caused injury to the plaintiff's property or person.<ref>''Winnipeg Condominium Corporation No. 36 v. Bird Construction Co.'', [https://canlii.ca/t/1frm5 1995 CanLII 146 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Winnipeg_Condominium_Corp. §19.3.2.1]) at paras 27–28.</ref> The Court clarified that recovery for pure economic loss is not dictated by the terms of the original contract between the defendant and the third party, but rather by basic standards of reasonable safety and principles of negligence.<ref name=":0">''Winnipeg Condominium Corporation No. 36 v. Bird Construction Co.'', [https://canlii.ca/t/1frm5 1995 CanLII 146 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Winnipeg_Condominium_Corp. §19.3.2.1]) at para 25.</ref> In demarcating the scope of recovery for negligent supply of shoddy goods or structures, the La Forest J stated that:<ref name=":0" /><blockquote>The duty in contract with respect to materials and workmanship flows from the terms of the contract between the contractor and home owner. By contrast, the duty in tort with respect to materials and workmanship flows from the contractor’s duty to ensure that the building meets a reasonable and safe standard of construction. For my part, I have little difficulty in accepting a distinction between these duties. The duty in tort extends only to reasonable standards of safe construction and the bounds of that duty are not defined by reference to the original contract. Certainly, for example, a contractor who enters into a contract with the original home owner for the use of high-grade materials or special ornamental features in the construction of the building will not be held liable to subsequent purchasers if the building does not meet these special contractual standards. However, such a contract cannot absolve the contractor from the duty in tort to subsequent owners to construct the building according to reasonable standards.</blockquote>The Court went on to explain the logic and policy behind allowing plaintiffs to recover for the cost of repairing shoddy goods or structures to a non-dangerous state.<ref>''Winnipeg Condominium Corporation No. 36 v. Bird Construction Co.'', [https://canlii.ca/t/1frm5 1995 CanLII 146 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Winnipeg_Condominium_Corp. §19.3.2.1]) at paras 35–38.</ref> First, if a contractor can be held liable for situations where a dangerous structure or good causes damage to the plaintiff's person or property, it logically follows that they should be held liable in situations where such a defect is discovered and pre-emptively repaired to mitigate such danger and protect the plaintiff's bodily and proprietary interests.<ref>''Winnipeg Condominium Corporation No. 36 v. Bird Construction Co.'', [https://canlii.ca/t/1frm5 1995 CanLII 146 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Winnipeg_Condominium_Corp. §19.3.2.1]) at para 36.</ref> Second, recognizing such a duty of care would have positive policy implications insofar as it would encourage plaintiffs to move quickly to mitigate the potential for the defective product/structure to cause injury.<ref name=":1">''Winnipeg Condominium Corporation No. 36 v. Bird Construction Co.'', [https://canlii.ca/t/1frm5 1995 CanLII 146 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Winnipeg_Condominium_Corp. §19.3.2.1]) at para 37.</ref> Alternatively, failing to recognize a duty of care would encourage owners of the defective product to wait until it causes injury so that they would then be able to recover damages under law, rather than promoting socially responsible behaviour.<ref name=":1" /><br />
<br />
The Court in ''Winnipeg Condominium'' did not address the question of whether a defendant can be held liable to the plaintiff for the cost of repairing ''non-dangerous'' defective products under negligence law.<ref>''Winnipeg Condominium Corporation No. 36 v. Bird Construction Co.'', [https://canlii.ca/t/1frm5 1995 CanLII 146 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Winnipeg_Condominium_Corp. §19.3.2.1]) at para 41.</ref><br />
<br />
=== Clarification on the scope of recovery in ''Maple Leaf Foods'' ===<br />
<br />
====== Non-dangerous defective goods vs dangerous defective goods ======<br />
{| class="wikitable" style="float:right;margin-left;10px;width:30%"<br />
! style="background-color:#F2CEE0" |''In the news''<br />
|-<br />
! style="background-color:#FFF5FA" |''Maple Leaf Foods Listeria Outbreak''<br />
|-<br />
|Franchisees of the sandwich chain, Mr. Sub, suffered financial losses after their supplier, Maple Leaf Foods'','' supplied the franchisees with potentially listeria-infected meats, which were discarded pursuant to a voluntary recall by Maple Leaf.<ref name=":7">{{Cite news|url=https://www.cbc.ca/news/politics/supreme-court-mr-sub-maple-leaf-foods-decision-1.5790774|title=Supreme Court dismisses appeal against Maple Leaf Foods over tainted meat|last=Stefanovich|first=Olivia|date=6 Nov 2020|work=CBC}}</ref><ref>''1688782 Ontario Inc. v. Maple Leaf Foods Inc.'', [https://www.canlii.org/en/ca/scc/doc/2020/2020scc35/2020scc35.html 2020 SCC 35] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_1688782_Ontario_Inc. §19.3.2.2]) at paras 1–14.</ref> The Supreme Court of Canada stated that Maple Leaf did not owe the franchisees a duty of care, as they were not the ultimate consumers of the tainted meat, but a commercial intermediary who were not at risk of harm.<ref name=":7" /><ref>''1688782 Ontario Inc. v. Maple Leaf Foods Inc.'', [https://www.canlii.org/en/ca/scc/doc/2020/2020scc35/2020scc35.html 2020 SCC 35] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_1688782_Ontario_Inc. §19.3.2.2]) at paras 57–58 & 95.</ref><br />
Watch the [https://www.youtube.com/watch?v=Ptz9R0j-IXk video] below for an apology issued by Maple Leaf Foods via a TV ad in response to the listeria outbreak.<ref>Anthony Kalamut. (24 May 2021). [https://www.youtube.com/watch?v=Ptz9R0j-IXk "Maple Leaf Foods Canada - Apology Ad"]. ''YouTube.''</ref><br />
<br />
{{YouTube|id=Ptz9R0j-IXk|width=100%|height=150}}<br />
|}<br />
Over two decades later, the Supreme Court of Canada in ''1688782 Ontario Inc. v. Maple Leaf Foods Inc.'' clarified the scope of recovery for negligent supply of shoddy goods or structures.<ref name=":12">''1688782 Ontario Inc. v. Maple Leaf Foods Inc.'', [https://www.canlii.org/en/ca/scc/doc/2020/2020scc35/2020scc35.html 2020 SCC 35] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_1688782_Ontario_Inc. §19.3.2.2]).</ref> The Court narrowly interpreted the holding in ''Winnipeg Condominium'', stating that compensation for the repair cost of a defective non-dangerous product only improves the ''quality'' of the product, not its ''safety'', and therefore such a remedy is better limited to implied warranties within contract law.<ref name=":10">''1688782 Ontario Inc. v. Maple Leaf Foods Inc.'', [https://www.canlii.org/en/ca/scc/doc/2020/2020scc35/2020scc35.html 2020 SCC 35] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_1688782_Ontario_Inc. §19.3.2.2]) at para 47, citing ''Hughes v. Sunbeam Corp. (Canada) Ltd.'', [https://www.canlii.org/en/on/onca/doc/2002/2002canlii45051/2002canlii45051.html 2002 CanLII 45051 (ONCA)] at para 36.</ref> The Court interpreted ''Winnipeg Condominium'' as only justifying recovery in tort for shoddy goods because ''dangerous'' structures/goods pose a real and substantial danger to the plaintiffs' rights in person or property.<ref>''1688782 Ontario Inc. v. Maple Leaf Foods Inc.'', [https://www.canlii.org/en/ca/scc/doc/2020/2020scc35/2020scc35.html 2020 SCC 35] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_1688782_Ontario_Inc. §19.3.2.2]) at paras 45–51, citing ''Winnipeg Condominium Corporation No. 36 v. Bird Construction Co.'', [https://canlii.ca/t/1frm5 1995 CanLII 146 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Winnipeg_Condominium_Corp. §19.3.2.1]) at paras 35–41.</ref> In other words, dangerous products are treated ''as if'' they have interfered with the plaintiff's rights in person or property, even if the product is repaired before it could cause such harm, and therefore redress remains tangibly connected to the rights which tort law serves to protect.<ref>''1688782 Ontario Inc. v. Maple Leaf Foods Inc.'', [https://www.canlii.org/en/ca/scc/doc/2020/2020scc35/2020scc35.html 2020 SCC 35] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_1688782_Ontario_Inc. §19.3.2.2]) at paras 47–49, citing ''Winnipeg Condominium Corporation No. 36 v. Bird Construction Co.'', [https://canlii.ca/t/1frm5 1995 CanLII 146 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Winnipeg_Condominium_Corp. §19.3.2.1]) at paras 35–41.</ref> The Court in ''Maple Leaf'' stated that, by contrast, ''non-dangerous'' defective products do not pose such a risk and therefore lack a tangible connection to the plaintiff's rights in person or property, leaving only rights to the quality of the product and the protection economic interests, which are not protected by tort law ''per se''.<ref>''1688782 Ontario Inc. v. Maple Leaf Foods Inc.'', [https://www.canlii.org/en/ca/scc/doc/2020/2020scc35/2020scc35.html 2020 SCC 35] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_1688782_Ontario_Inc. §19.3.2.2]) at paras 50–51.</ref><br />
<br />
====== Determining proximity with reference to the parties' contractual relationship ======<br />
In addition to establishing that claims for negligent supply of shoddy good/structures will not be available in instances where the good is non-dangerous, the Supreme Court of Canada in ''Maple Leaf'' also set out important considerations for courts to make when determining proximity in such an action.<ref name=":12" /> Specifically, the majority drew heavily on the extant contractual matrix between the parties in their proximity analysis.<ref>''1688782 Ontario Inc. v. Maple Leaf Foods Inc.'', [https://www.canlii.org/en/ca/scc/doc/2020/2020scc35/2020scc35.html 2020 SCC 35] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_1688782_Ontario_Inc. §19.3.2.2]) at paras 88–94.</ref> The majority considered that the deliberate contractual choices made between the parties, or lack thereof, must inform a court's understanding of whether a relationship proximity existed.<ref>''1688782 Ontario Inc. v. Maple Leaf Foods Inc.'', [https://www.canlii.org/en/ca/scc/doc/2020/2020scc35/2020scc35.html 2020 SCC 35] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_1688782_Ontario_Inc. §19.3.2.2]) at paras 90–91.</ref> On the facts of the case a duty of care was rejected. <br />
<br />
The dissent, by contrast, did not view the contractual matrix as determinative of a lack of proximity, and would have recognized proximity between the parties.<ref>''1688782 Ontario Inc. v. Maple Leaf Foods Inc.'', [https://www.canlii.org/en/ca/scc/doc/2020/2020scc35/2020scc35.html 2020 SCC 35] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_1688782_Ontario_Inc. §19.3.2.2]) at para 151.</ref> The dissent justified a finding of proximity with reference to the one-sided relationship of vulnerability and dependence that arose from the contractual arrangements.<ref>''1688782 Ontario Inc. v. Maple Leaf Foods Inc.'', [https://www.canlii.org/en/ca/scc/doc/2020/2020scc35/2020scc35.html 2020 SCC 35] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_1688782_Ontario_Inc. §19.3.2.2]) at paras 152–155.</ref><br />
<br />
==Alternative remedies for non-dangerous, defective goods==<br />
As stated by the Ontario Court of Appeal in ''Arora v Whirlpool Canada LP'', there are other remedies under statute or contract law for a plaintiff to recover for the diminution of value caused by a shoddy product that is not dangerous.<ref name=":11" /> The Court stated that:<ref name=":11" /> <blockquote>Assuming ... that a ''prima facie'' duty of care is made out ... policy considerations negate recognizing a cause of action in negligence for diminution in value for a defective, non-dangerous consumer product. On the pleaded facts, I agree with the motion judge that the appellants should be left to their statutory and contractual remedies, including express, implied or statutory warranties, and "should not look to tort law to negotiate a better bargain for themselves". </blockquote>As such, claimants seeking to recover for non-dangerous, defective goods may elect to pursue a claim for breach of warranty under contract law or statute where available. In addition to common law contractual remedies, various provincial and federal statutes provide for the protection of consumers. For example, British Columbia's ''[https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96410_01#section56 Sale of Goods Act]'' sets out various statutory remedies available to a plaintiff when a vendor breaches a warranty of sale.<ref name=":13" /><br />
{| class="wikitable mw-collapsible mw-collapsed" style="width: 75%"<br />
! style="background-color:#CEF2E0" |Legislation<br />
|-<br />
|'''''[https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96410_01#section56 Sale of Goods Act]'', RSBC 1996, c 410, s 56'''<ref name=":13">''[https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96410_01#section56 Sale of Goods Act]'', RSBC 1996, c 410, s 56.</ref><br />
|-<br />
|'''56. Remedy for breach of warranty'''<br />
# If there is a breach of warranty by the seller, or if the buyer elects, or is compelled, to treat any breach of a condition on the part of the seller as a breach of warranty, the buyer is not merely because of the breach of warranty entitled to reject the goods, but the buyer may<br />
## (a) set up against the seller the breach of warranty in diminution or extinction of the price, or <br />
## (b) maintain an action against the seller for damages for the breach of warranty.<br />
# The measure of damages for breach of warranty is the estimated loss directly and naturally resulting, in the ordinary course of events, from the breach of warranty.<br />
# In the case of breach of warranty of quality, the loss is, unless there is evidence to the contrary, the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had answered to the warranty.<br />
# The fact that the buyer has set up the breach of warranty in diminution or extinction of the price does not prevent the buyer from maintaining an action for the same breach of warranty if the buyer has suffered further damage.<br />
|}<br />
<br />
== A diverging perspective on negligent supply of shoddy goods within English common law ==<br />
In ''D. & F. Estates Ltd. v. Church Commisioners for England'', the House of Lords stated that the cost of repairing a defect in a building is not recoverable in tort by a successor in title against the contractor for want of a contractual relationship between the parties.<ref>''Winnipeg Condominium Corporation No. 36 v. Bird Construction Co.'', [https://canlii.ca/t/1frm5 1995 CanLII 146 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Winnipeg_Condominium_Corp. §19.3.2.1]) at para 16, citing ''D. & F. Estates v. Church Comissioners for England'', [https://www.bailii.org/cgi-bin/format.cgi?doc=/uk/cases/UKHL/1988/4.html&query=(Estates)+AND+(v.)+AND+(Church)+AND+(Commissioners)+AND+(for)+AND+(England) <nowiki>[1988] UKHL 4 (BAILII)</nowiki>].</ref> The House of Lords stated that any issues arising from the quality of the building must be limited to contract law because allowing recovery under negligence law would create a non-contractual warranty as to the fitness of the product.<ref>''Winnipeg Condominium Corporation No. 36 v. Bird Construction Co.'', [https://canlii.ca/t/1frm5 1995 CanLII 146 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Winnipeg_Condominium_Corp. §19.3.2.1]) at para 18, citing ''D. & F. Estates v. Church Comissioners for England'', [https://www.bailii.org/cgi-bin/format.cgi?doc=/uk/cases/UKHL/1988/4.html&query=(Estates)+AND+(v.)+AND+(Church)+AND+(Commissioners)+AND+(for)+AND+(England) <nowiki>[1988] UKHL 4 (BAILII)</nowiki>] at 1007.</ref> The Court explained that contractors may only be allowed to recover under negligence law when the defect causes physical injury to the subsequent purchaser or their property, or if there was a special relationship of reliance between the subsequent purchaser and the contractor actionable in [[Sandbox:Torts/Negligence Misrepresentation|negligent misrepresentation]].<ref>''Winnipeg Condominium Corporation No. 36 v. Bird Construction Co.'', [https://canlii.ca/t/1frm5 1995 CanLII 146 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Winnipeg_Condominium_Corp. §19.3.2.1]) at para 19, citing ''D. & F. Estates v. Church Comissioners for England'', [https://www.bailii.org/cgi-bin/format.cgi?doc=/uk/cases/UKHL/1988/4.html&query=(Estates)+AND+(v.)+AND+(Church)+AND+(Commissioners)+AND+(for)+AND+(England) <nowiki>[1988] UKHL 4 (BAILII)</nowiki>] at 1014.</ref><ref>''Winnipeg Condominium Corporation No. 36 v. Bird Construction Co.'', [https://canlii.ca/t/1frm5 1995 CanLII 146 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Winnipeg_Condominium_Corp. §19.3.2.1]) at para 19, citing ''Hedley Byrne. & Co. v. Heller & Partners Ltd.'', [https://www.bailii.org/uk/cases/UKHL/1963/4.html <nowiki>[1963] UKHL 4 (BAILII)</nowiki>].</ref> Later, in ''Murphy v. Brentwood District Council'', the House of Lords re-established a broad rule limiting recovery for pure economic loss in tort.<ref name=":2">''Winnipeg Condominium Corporation No. 36 v. Bird Construction Co.'', [https://canlii.ca/t/1frm5 1995 CanLII 146 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Winnipeg_Condominium_Corp. §19.3.2.1]) at para 18, citing ''Murphy v. Brentwood District Council'', [https://www.bailii.org/cgi-bin/format.cgi?doc=/uk/cases/UKHL/1991/2.html&query=(murphy)+AND+(v.)+AND+(Brentwood)+AND+(district)+AND+(council) <nowiki>[1991] UKHL 2 (BAILII)</nowiki>].</ref> In ''Murphy'', the House of Lords overruled the decision in ''Anns v. Merton London Borough Council'', which laid out the general test for determining recovery in an action for negligence that is still followed in Canada.<ref name=":2" /><ref>''Winnipeg Condominium Corporation No. 36 v. Bird Construction Co.'', [https://canlii.ca/t/1frm5 1995 CanLII 146 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Winnipeg_Condominium_Corp. §19.3.2.1]) at para 18, citing ''Anns v. London Borough of Merton'', [https://www.bailii.org/cgi-bin/format.cgi?doc=/uk/cases/UKHL/1977/4.html&query=(anns)+AND+(v.)+AND+(merton) <nowiki>[1977] UKHL 4 (BAILII)</nowiki>].</ref><br />
<br />
==Discussion questions==<br />
<br />
*Why was the damage arising from the defective building in ''Winnipeg Condominium'' economic loss and not property damage?<ref>''Winnipeg Condominium Corporation No. 36 v. Bird Construction Co.'', [https://canlii.ca/t/1frm5 1995 CanLII 146 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Winnipeg_Condominium_Corp. §19.3.2.1]).</ref><br />
*How is the duty owed in tort under negligent supply of shoddy goods or structures distinct from the sorts of duties that arise from a contract? Does it make sense for tort duties to subsist alongside contractual duties?<br />
*How did the majority in ''Maple Leaf Foods''<ref>''1688782 Ontario Inc. v. Maple Leaf Foods Inc.'', [https://www.canlii.org/en/ca/scc/doc/2020/2020scc35/2020scc35.html 2020 SCC 35] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_1688782_Ontario_Inc. §19.3.2.2]) at paras 44–94.</ref> construe the ratio of ''Winnipeg Condominium''<ref>''Winnipeg Condominium Corporation No. 36 v. Bird Construction Co.'', [https://canlii.ca/t/1frm5 1995 CanLII 146 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Winnipeg_Condominium_Corp. §19.3.2.1]).</ref>? Was this a narrowing reinterpretation of the precedent? How did the relationship of proximity in these two cases differ?<br />
*Is the dissent’s argument for recognising a novel duty of care in ''Maple Leaf Foods''<ref name=":12" /> compelling?<br />
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<references /></div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Documentation:Torts/Negligence_Misrepresentation&diff=858802Documentation:Torts/Negligence Misrepresentation2025-04-08T18:36:51Z<p>SamuelBeswick: </p>
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<div>{{Infobox Torts }}<br />
<span style="font-size:200%;">Negligent misrepresentation</span><br> <br />
<br />
Negligent misrepresentation is one of three categories of negligence actions for [https://en.wikipedia.org/wiki/Pure_economic_loss pure economic loss] that have been recognized by Canadian courts (alongside [[Sandbox:Torts/Negligence Shoddy Goods Structures|negligent supply of shoddy goods or structures]] and [[Sandbox:Torts/Negligence Relational Economic Loss|negligence causing relational economic loss]]).<ref name=":3">''1688782 Ontario Inc. v. Maple Leaf Foods Inc.'', [https://www.canlii.org/en/ca/scc/doc/2020/2020scc35/2020scc35.html 2020 SCC 35] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_1688782_Ontario_Inc. §19.3.2.2]) at paras 21–23.</ref> The cause of action addresses situations where the defendant negligently makes an untrue, inaccurate, or misleading representation of fact, which the plaintiff reasonably relies on to their detriment.<ref name=":0">''Queen v. Cognos Inc.'', [https://www.canlii.org/en/ca/scc/doc/1993/1993canlii146/1993canlii146.html?resultIndex=9&resultId=3f3d8118fb9b4f53be3ac877806c1ae2&searchId=2024-08-04T17:43:12:669/213846e66dfc45f89972b8ec88e9bec6&searchUrlHash=AAAAAQAbbmVnbGlnZW50IG1pc3JlcHJlc2VudGF0aW9uAAAAAAE 1993 CanLII 146 (SCC)].</ref><ref name=":7" /> As with any claim in negligence in Canada, the plaintiff must establish that the defendant owed them a duty of care on the basis of existing precedent or by satisfying the elements of the ''Anns/Cooper'' novel duty test.<ref name=":0" /> The proximate relationship enquiry under the ''Anns/Cooper'' test will tend to determine what harm is reasonably foreseeable to the plaintiff from the defendant's misrepresentation.<ref name=":8" /> The primary difference between negligent and [[Sandbox:Torts/Fraud|fraudulent misrepresentation]] is the intentionality required by the defendant in making the misrepresentation.<ref name=":6" /><br />
==Development of the tort of negligent misrepresentation==<br />
{| class="wikitable" style="float:right;margin-left;10px;width:30%"<br />
|-<br />
! style="background-color:#FFF5FA" |''Ultramares case summary''<br />
|-<br />
|Check out this [https://www.youtube.com/watch?v=aVma0EZTz2A video] for a brief summary of the case history leading up to the ''Ultramares'' judgement.{{YouTube|id=aVma0EZTz2A|width=100%|height=`50}}<br />
|}<br />
Although following ''Donoghue v. Stevenson'' and ''Palsgraf v. Long Island Railroad Co.'' common law courts became accustomed to recognizing duties of care in respect of negligent ''acts'', courts initially refused to expand the doctrine to encompass negligent ''statements''. <br />
<br />
In ''Ultramares Corp. v. Touche'', a defendant auditor negligently prepared and supplied a balance sheet to its client to be used by the client to solicit investments.<ref>''Ultramares Corp. v. Touche'', [https://casetext.com/case/ultramares-corp-v-touche (1931) 255 NY 170 (NYCA)] at paras 2–6.</ref> While the New York Court of Appeals agreed that the audit was made negligently, the Court rejected the proposition that the auditor owed a duty to take care in the economic interests of third party investors who relied on the account it prepared.<ref name=":11">''Ultramares Corp. v. Touche'', [https://casetext.com/case/ultramares-corp-v-touche (1931) 255 NY 170 (NYCA)] at paras 13–22.</ref> The Court considered (1) that such an extension of the doctrine might make negligence law coterminious with fraud liability; (2) that concerns of indeterminate liability militated against the recognition of a duty of care; and (3) recognizing such a duty might conflict with the defendant's duty to their employer.<ref name=":12">''Ultramares Corp. v. Touche'', [https://casetext.com/case/ultramares-corp-v-touche (1931) 255 NY 170 (NYCA)] at paras 22–26.</ref><br />
<br />
These concerns also prevailed in English law until the decision in ''Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd''. The House of Lords recognized for the first time a duty of care in circumstances where the defendant promises to perform an undertaking and does so negligently.<ref name=":10">''Hedley Byrne & Company Ltd. v. Heller & Partners Ltd.'', [https://www.bailii.org/uk/cases/UKHL/1963/4.html <nowiki>[1963] UHL 4 (BAILII)</nowiki>] at para 107.</ref> The House of Lords stated that a duty of care may be found both in contractual relationships and in relationships "equivalent to contract", where there is an assumption of responsibility by the defendant.<ref>''Hedley Byrne & Company Ltd. v. Heller & Partners Ltd.'', [https://www.bailii.org/uk/cases/UKHL/1963/4.html <nowiki>[1963] UHL 4 (BAILII)</nowiki>] at para 113, citing ''Norton v. Lord Ashburton'', [1914] AC 932.</ref> The Law Lords also recognized that a defendant may shield themselves from tort liability by disclaiming liability when the promise is made to the plaintiff, a fact which was ultimately fatal to the plaintiff's claim in ''Hedley Byrne''.<ref>''Hedley Byrne & Company Ltd. v. Heller & Partners Ltd.'', [https://www.bailii.org/uk/cases/UKHL/1963/4.html <nowiki>[1963] UHL 4 (BAILII)</nowiki>] at para 122.</ref><br />
== Elements of negligent misrepresentation ==<br />
The Supreme Court of Canada in ''Queen v. Cognos Inc.'' set out the elements of negligent misrepresentation, following the seminal House of Lords decision in ''Hedley Byrne''<ref>''Hedley Byrne & Company Ltd. v. Heller & Partners Ltd.'', [https://www.bailii.org/uk/cases/UKHL/1963/4.html <nowiki>[1963] UHL 4 (BAILII)</nowiki>].</ref>, as follows:<br />
{| class="wikitable" style="width:55%"<br />
! style="background-color:#E0CEF2" |Elements of negligent misrepresentation<ref name=":0" /><ref name=":7">{{Cite journal|last=Di Feo|first=Vanessa|date=2022|title=CM Callow v Zollinger, Reconceptualized Through the Tort of Negligent Misrepresentation|url=https://www.canlii.org/en/commentary/doc/2022CanLIIDocs956#!fragment/zoupio-_Tocpdf_bk_12/BQCwhgziBcwMYgK4DsDWszIQewE4BUBTADwBdoAvbRABwEtsBaAfX2zhoBMAzZgI1TMAjACYAlABpk2UoQgBFRIVwBPaAHJ1EiITC4Ei5Ws3bd+kAGU8pAEJqASgFEAMo4BqAQQByAYUcTSMD5oUnYxMSA|journal=Appeal: Review of Current Law and Law Reform|volume=27|pages=120}}</ref><br />
|-<br />
|1. [T]here must be a duty of care based on a "special relationship" between the representor and the represented;<br />
|-<br />
|2. [T]he representation in question must be untrue, inaccurate, or misleading;<br />
|-<br />
|3. [T]he representor must have acted negligently in making said representation;<br />
|-<br />
|4. [T]he represented must have relied, in a reasonable manner, on said negligent misrepresentation;<br />
|-<br />
|5. [T]he reliance must have been detrimental to the represented in the sense that damages resulted.<br />
|}<br />
The "special relationship" referred to by the Court is that which establishes a duty of care.<ref name=":0" /> As stated by the Court in ''Cognos'', negligent misepresentation "does not require an expansion of tort law into previously uncharted and hence unknown waters. Rather, it simply requires an application of well established principles of the law of negligence."<ref name=":0" /><br />
<br />
=== Applying the ''Anns/Cooper'' framework in the context of negligent misrepresentation in Canada ===<br />
<br />
==== Proximity ====<br />
Two primary factors governing a court's proximity analysis for negligent misrepresentation were set out by the Supreme Court of Canada in ''Deloitte & Touche v. Livent Inc''.<ref name=":8">''Deloitte & Touche v. Livent Inc. (Receiver of)'', [https://canlii.ca/t/hpdq9 2017 SCC 63] at paras 30–31.</ref> Proximity is determined by the defendant's ''undertaking'' and the plaintiff's reasonable ''reliance'' on that undertaking; the defendant's specific undertaking to provide a representation or a service invites the plaintiff's reliance on that undertaking.<ref name=":9">''Deloitte & Touche v. Livent Inc. (Receiver of)'', [https://canlii.ca/t/hpdq9 2017 SCC 63] at para 30.</ref> The plaintiff's reasonable reliance is restricted to the purposes of which the representation was made, as a defendant will not be liable for a risk of injury which they did not undertake to protect.<ref name=":1">''Deloitte & Touche v. Livent Inc. (Receiver of)'', [https://canlii.ca/t/hpdq9 2017 SCC 63] at para 31.</ref> As such, the proximity analysis in the context of negligent misrepresentation will determine both the existence of a proximate relationship between the parties and the scope of that relationship.<ref name=":1" /><br />
<br />
==== Foreseeability ====<br />
The Supreme Court of Canada in ''Deloitte'' stated that an injury to the plaintiff will be deemed reasonably foreseeable if the defendant should have reasonably foreseen the plaintiff's reliance and such reliance would be reasonable in the particular circumstances.<ref name=":2">''Deloitte & Touche v. Livent Inc. (Receiver of)'', [https://canlii.ca/t/hpdq9 2017 SCC 63] at para 35.</ref> In other words, whether the injury to the plaintiff was reasonably foreseeable in the circumstances is chiefly determined by the relationship of proximity between the parties and with reference to the defendant's undertaking.<br />
<br />
==== Policy concerns ====<br />
{| class="wikitable" style="float:right;margin-left;10px;width:30%"<br />
! style="background-color:#F2CEE0" |In the news<br />
|-<br />
! style="background-color:#FFF5FA" |''Makers of COVID-19 protective equipment seek over $5 billion in damages''<br />
|-<br />
|Canadian manufacturers of COVID-19 protective equipment are suing the federal government for negligent misrepresentations that allegedly pushed them to invest in the manufacturing of personal protective equipment. The Canadian government, however, denies that the plaintiff's reliance on their statements was reasonable, as they did not contract with any of the plaintiffs.<ref name=":5">{{Cite news|url=https://www.cbc.ca/news/politics/ppe-manufacturers-lawsuit-government-1.7115650|title=Makers of COVID-19 protective equipment seek over $5 billion in damages from Ottawa|last=Bronskill|first=Jim|date=14 Feb 2024|work=CBC}}</ref>[[File:Boy wearing a mask during the COVID-19 pandemic in Egypt - Inbound8844811027769309500.jpg|alt=Black and white image of a young boy wearing a COVID-19 protective face mask looking upwards.|center|thumb|245x245px]] <br />
|}Negligent misrepresentation actions tend to engage policy concerns of indeterminate liability.<ref name=":4">''Deloitte & Touche v. Livent Inc. (Receiver of)'', [https://canlii.ca/t/hpdq9 2017 SCC 63] at paras 133–134.</ref> However, the majority in ''Deloitte'' considered that a properly applied ''Anns/Cooper'' analysis will tend to narrow concerns of indeterminate liability.<ref name=":13">''Deloitte & Touche v. Livent Inc. (Receiver of)'', [https://canlii.ca/t/hpdq9 2017 SCC 63] at para 42.</ref> This is because a court's proximity analysis relates to the defendant's specific undertaking, and as such, the scope of that undertaking will tend to restrict recovery to a specific amount, class of plaintiff, and time window.<ref>''Deloitte & Touche v. Livent Inc. (Receiver of)'', [https://canlii.ca/t/hpdq9 2017 SCC 63] at para 52, 55, & 68–75.</ref><br />
== Comparing negligent misrepresentation to fraud ==<br />
As described by the Ontario Court of Appeal in ''Carom v. Bre-X Minerals Ltd.'', there are "substantial similarities" between negligent and [[Sandbox:Torts/Fraud|fraudulent misrepresentation]].<ref name=":6">''Carom v. Bre-X Minerals Ltd.'', [https://canlii.ca/t/1fbcz 2000 CanLII 16886 (ONCA)] at para 44.</ref> The primary difference between the two torts is the requisite mental element required for each tort. For negligent misrepresentation, the defendant only needs to make the misrepresentation negligently or carelessly. Whereas fraudulent misrepresentation requires a higher level of intentionality by the defendant, requiring a minimum of recklessness, without belief in the truth of the statement.<ref name=":6" /> <br />
== Intersections with contract law ==<br />
Regarding [[Sandbox:Torts/Concurrent actions|concurrent claims]] under contract law and tort law, the Supreme Court of Canada in ''BG Checo International Ltd. v. British Columbia Hydro and Power Authority'' confirmed that parties may pursue actions under contract and tort law, provided the terms of the contract do not preclude the plaintiff from suing in tort.<ref>''BG Checo International Ltd. v. British Columbia Hydro and Power Authority'', [https://canlii.ca/t/1fs5q 1993 CanLII 145 (SCC)] at 14–15.</ref> On the issue of concurrent claims for negligent misrepresentation and breach of contract, the majority stated:<ref>''BG Checo International Ltd. v. British Columbia Hydro and Power Authority'', [https://canlii.ca/t/1fs5q 1993 CanLII 145 (SCC)] at 26–27.</ref><blockquote>Where a given wrong ''prima facie'' supports an action in contract and in tort, the party may sue in either or both, except where the contract indicates that the parties intended to limit or negative the right to sue in tort. This limitation on the general rule of concurrency arises because it is always open to parties to limit or waive the duties which the common law would impose on them for negligence. This principle is of great importance in preserving a sphere of individual liberty and commercial flexibility... a plaintiff may sue either in contract or in tort, subject to any limit the parties themselves have placed on that right by their contract. The mere fact that the parties have dealt with a matter expressly in their contract does not mean that they intended to exclude the right to sue in tort. It all depends on how they have dealt with it.</blockquote>A plaintiff may elect to choose to pursue both claims and avail themselves to whichever cause of action yields a higher quantum of damages, if they differ.<ref>''BG Checo International Ltd. v. British Columbia Hydro and Power Authority'', [https://canlii.ca/t/1fs5q 1993 CanLII 145 (SCC)] at 39.</ref> For example, in ''BG Checo'', the quantum of damages yielded by a claim for negligent misrepresentation was higher than that yielded by their claim for breach of contract.<ref>''BG Checo International Ltd. v. British Columbia Hydro and Power Authority'', [https://canlii.ca/t/1fs5q 1993 CanLII 145 (SCC)] at 40-42.</ref> The court explained the difference between the quantum of damages as follows:<ref>''BG Checo International Ltd. v. British Columbia Hydro and Power Authority'', [https://canlii.ca/t/1fs5q 1993 CanLII 145 (SCC)] at 37.</ref><blockquote>The measure of damages in contract and for the tort of negligent misrepresentation are:<br />
<br />
<u>Contract</u>: the plaintiff is to be put in the position it would have been in had the contract been performed as agreed.<br />
<br />
<u>Tort</u>: the plaintiff is to be put in the position it would have been in had the misrepresentation not been made.</blockquote><br />
==Discussion questions==<br />
<br />
*Is it principled for the defendant's undertaking to govern what harm is reasonably foreseeable to arise from the plaintiff's reliance on the defendant?<br />
*Do you agree with the majority's conclusion in ''Deloitte'' that a proper application of the ''Anns/Cooper'' framework will often circumvent any concerns about indeterminate liability?<ref name=":13" /><br />
*What is the primary difference between negligent and [[Sandbox:Torts/Fraud|fraudulent misrepresentation]]? What other differences may exist given that negligent misrepresentation is subject to the same analysis as other negligence claims?<br />
*How are the approaches taken regarding negligent misrepresentation in other common law jurisdictions, such as the UK and USA, similar to the Canadian approach?<br />
<br />
{{DISPLAYTITLE:<span style="position: absolute; clip: rect(1px 1px 1px 1px); clip: rect(1px, 1px, 1px, 1px);">{{FULLPAGENAME}}</span>}}<br />
<references /></div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Template:Infobox_Torts&diff=858801Template:Infobox Torts2025-04-08T18:35:37Z<p>SamuelBeswick: </p>
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! colspan="2" style="background:#ffe599; font-weight:normal; width:200px; color: black; font-size:10pt;" | [[Sandbox:Torts/Introduction|Introduction]]<br />
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! colspan="2" style="background:#ffe599; font-weight:normal; width:200px; color: black; font-size:10pt;" | Dignitary Torts<br />
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! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Sandbox:Torts/Defamation|Defamation]] • [[Sandbox:Torts/Discrimination|Discrimination]] • [[Sandbox:Torts/Harassment|Harassment]] • [[Sandbox:Torts/Intentional infliction of mental suffering|Intentional infliction of mental suffering]] • [[Sandbox:Torts/Invasion of privacy|Invasion of privacy]] • [[Sandbox:Torts/Trespass to the person|Trespass to the person]] <br />
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! colspan="2" style="background:#ffe599; font-weight:normal; width:200px; color: black; font-size:10pt;" | Property Torts<br />
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! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Sandbox:Torts/Intentional interference with goods|Interference with goods]] • [[Sandbox:Torts/Intentional interference with land|Interference with land]] • [[Sandbox:Torts/Non-natural_use_of_land|Non-natural use of land]] • [[Sandbox:Torts/Private nuisance|Private nuisance]] • [[Sandbox:Torts/Public nuisance|Public nuisance]]<br />
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! colspan="2" style="background:#ffe599; width:200px; font-weight:normal; font-size:10pt; color: black;" | [[Sandbox:Torts/Negligence|Negligence Tort]]<br />
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! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Sandbox:Torts/Duty of care|Duty of care]] • [[Sandbox:Torts/Breach of duty of care|Breach of duty]] • [[Sandbox:Torts/Damage|Damage]] • [[Sandbox:Torts/Causation_in_fact|Causation]] • [[Sandbox:Torts/Remoteness_in_law|Remoteness]]<br />
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! colspan="2" style="background:#ffe599; width:200px; font-weight:normal; font-size:10pt; color: black;" | [[Sandbox:Torts/Categories of Negligence|Negligence Categories]]<br />
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! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Sandbox:Torts/Negligence_Employment|Employment]] • [[Sandbox:Torts/Negligence_Pollution|Environmental pollution]] • [[Sandbox:Torts/Negligence_Products|Harmful products]] • [[Sandbox:Torts/Negligence_Hosting|Hosting patrons and guests]] • [[Sandbox:Torts/Negligence_Mental_injury|Infliction of mental injury]] • [[Sandbox:Torts/Negligence_Misrepresentation|Misrepresentation]] • [[Sandbox:Torts/Negligence_Occupiers|Occupation of premises]] • [[Sandbox:Torts/Negligence_Services|Professional services]] • [[Sandbox:Torts/Negligence_Public_authorities|Public authorities]] • [[Sandbox:Torts/Negligence_Misrepresentation|Pure]] [[Sandbox:Torts/Negligence_Shoddy_Goods_Structures|economic]] [[Sandbox:Torts/Negligence_Relational_Economic_Loss|loss]] • [[Sandbox:Torts/Negligence_Relational_Economic_Loss|Relational economic loss]] • [[Sandbox:Torts/Negligence_Rescuers|Rescuers]] • [[Sandbox:Torts/Negligence_Shoddy_Goods_Structures|Shoddy goods or structures]] • [[Sandbox:Torts/Negligence_Institutional_abuse|Treatment of indigenous children]] • [[Sandbox:Torts/Negligence_Unborn_children|Unborn children]] <br />
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! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Sandbox:Torts/Abuse_of_process|Abuse of process]] • [[Sandbox:Torts/Breach_of_confidence|Breach of confidence]] • [[Sandbox:Torts/Conspiracy|Conspiracy]] • [[Sandbox:Torts/Fraud|Fraud]] • [[Sandbox:Torts/Inducing_breach_of_contract|Inducing breach of contract]] • [[Sandbox:Torts/Injurious_falsehood|Injurious falsehood]] • [[Sandbox:Torts/Intimidation|Intimidation]] • [[Sandbox:Torts/Malicious_prosecution|Malicious prosecution]] • [[Sandbox:Torts/Misfeasance_in_public_office|Misfeasance in public office]] • [[Sandbox:Torts/Passing_off|Passing off]] • [[Sandbox:Torts/Spoliation|Spoliation]] • [[Sandbox:Torts/Unlawful_means|Unlawful interference with economic interests]]<br />
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! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Sandbox:Torts/Keeping_dangerous_animals|Keeping dangerous animals]] • [[Sandbox:Torts/Non-natural_use_of_land|Non-natural use of land]] • [[Sandbox:Torts/Ultrahazardous_activities|Ultrahazardous activities]] • [[Sandbox:Torts/Vicarious_liability|Vicarious liability]]<br />
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</noinclude></div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Documentation:Torts/Trespass_to_the_person&diff=858798Documentation:Torts/Trespass to the person2025-04-08T18:28:22Z<p>SamuelBeswick: /* Intention to confine */</p>
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<div>{{ Infobox Torts }}<br />
<span style="font-size:200%;">{{SUBPAGENAME}}</span>'''<br>'''The torts of battery, assault, and false imprisonment are together known as the torts of trespass to the person.<ref name=":18">{{Cite journal|last=Sullivan|first=Ruth|date=1987|title=Trespass to the Person in Canada: A Defence of the Traditional Approach|url=https://canlii.ca/t/2bs9|journal=Ottawa Law Review|volume=19|issue=2|pages=536|via=CanLII}}</ref> These torts are said to be connected by their "commitment to the personal autonomy of the individual" and the presumption "that each individual has exclusive control over his own physical person so that any attempt by another to usurp that control is a wrong."<ref name=":18" /> They are torts actionable ''per se'', meaning a plaintiff does not have to prove they have suffered any damage in order to establish their cause of action.<ref name=":27">''Norberg v. Wynrib'', [https://www.canlii.org/en/ca/scc/doc/1992/1992canlii65/1992canlii65.html 1992 CanLII 65 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#9_4_1__Norberg_v__Wynrib__1992__CanLII_65__SCC_ §9.4.1]) at para 54.</ref> <br />
<br />
Common law courts sometimes [[Sandbox:Torts/Introduction#Nature of common law elements|vary in their expression]] of the precise elements of the trespass to the person torts. In the oft-cited English case of ''Collins v. Wilcock'', Goff L.J. summarized the trespass-to-the-person torts as follows: <br />
<br />
*'''Battery:''' "[T]he actual infliction of unlawful force on another person."<ref name=":15">''Collins v. Wilcock,'' [https://archive.org/details/allenglandlawrep0003all_b4p0/page/374/mode/1up <nowiki>[1984] All ER 374</nowiki>] at para 11.</ref><br />
*'''Assault:''' "[A]n act which causes another person to apprehend the infliction of immediate, unlawful, force on his person."<ref name=":15" /><br />
*'''False imprisonment:''' "[T]he unlawful imposition of constraint upon another’s freedom of movement from a particular place."<ref name=":15" /><br />
<br />
== Foundational concepts ==<br />
The trespass torts, which originate in the writ of [https://en.wikipedia.org/wiki/Vi_et_armis trespass ''vi et armis''], share certain common features. <br />
<br />
=== Directness ===<br />
One common feature of these torts, which stems from the trespass form of action, is that there must be a "direct connection between the defendant’s action and the plaintiff’s injury".<ref name=":19">''Non-Marine Underwriters, Lloyd's of London v. Scalera'', [https://www.canlii.org/en/ca/scc/doc/2000/2000scc24/2000scc24.html 2000 SCC 24] at para 11.</ref> McLachlin J. for the Supreme Court of Canada in ''Non-Marine Underwriters, Lloyd's of London v. Scalera'' explained that an "[i]nterference is direct if it is the immediate consequence of a force set in motion" by the defendant.<ref name=":28">''Non-Marine Underwriters, Lloyd's of London v. Scalera'', [https://www.canlii.org/en/ca/scc/doc/2000/2000scc24/2000scc24.html 2000 SCC 24] at para 8.</ref><br />
{| class="wikitable" style="float:right;margin-left;10px;width:25%"<br />
! style="background-color:#CEE0F2" | ''Scott v. Shepherd'' background<br />
|-<br />
|This [https://www.quimbee.com/ Quimbee] video provides the background of the case.<ref name=":22">{{Cite web|last=Quimbee|first=|date=23 February 2022|title=Tuberville v. Savage Case Brief Summary {{!}} Law Case Explained|url=https://www.youtube.com/watch?v=6yhkqA4XjLI|url-status=live|archive-url=|archive-date=|access-date=|website=YouTube}}<br />
</ref>{{YouTube|id=m-8oLq0ggZQ|width=100%|height=125}}<br />
|}An interference may be an immediate consequence even when the plaintiff and defendant do not physically meet. In ''Scott v. Shepherd'', the defendant threw a live firecracker into a public market.<ref name=":3">''Scott v. Shepherd'' (1773), [http://www.commonlii.org/int/cases/EngR/1746/464.pdf 96 ER 525 (KB)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#2_1_2__Scott_v__Shepherd__1773__All_ER_Rep_295__KB_ §2.1.2]).</ref> The firecracker was thrown around by several individuals who were trying to avoid it, until it blew up in the plaintiff's face. Although the defendant did not personally come into contact with the plaintiff, the court found that the defendant was still liable for the plaintiff's injury since the injury was the direct consequence of the defendant's unlawful conduct.<br />
<br />
=== Volition ===<br />
The plaintiff must have been in control of their actions to be liable. In ''Smith v. Stone'', the defendant was carried onto the plaintiff's land by force.<ref name=":2" /> The court held that this was not tortious conduct by the defendant because the defendant had not acted with volition at the time.<ref name=":2">''Smith v. Stone'' (1647), [http://www.commonlii.org/int/cases/EngR/1658/591.pdf 82 ER 533 (KB)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#2_1_1__Smith_v__Stone__1647__Style_65__82_ER_533__KB_ §2.1.1])</ref> The situation would have been different had the defendant been cajoled by others' [[Sandbox:Torts/Excuses#Duress|duress]]; in such a case a defendant might be in an unenviable position, but still in control of their actions.<ref>''Gilbert v. Stone'' (1648)'','' [https://www.google.ca/books/edition/The_English_Reports_King_s_Bench_Divisio/S5RDAQAAMAAJ?hl=en&gbpv=1&pg=PA539 82 ER 539 (KB)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#6_2_1_1_Gilbert_v__Stone__1648__Style_72__82_E_R__539__KB_ §6.2.1.1]).</ref><br />
<br />
=== Intention ===<br />
{| class="wikitable" style="float:right;margin-left;10px;width:25%"<br />
! style="background-color:#CEE0F2" | Intentional torts against the person<br />
|-<br />
|In the Australian podcast ''[https://open.spotify.com/episode/3dbmclweznl41rB4g1ZiZ0 Law of Torts]'', host [https://bjbs.csu.edu.au/centres/law-and-justice/staff/profiles/academic-staff/kim-bailey Kim Bailey] discusses the torts of assault, battery, and false imprisonment.<ref>{{Cite web|last=Bailey|first=Kim|date=28 Jun 2021|title=Topic 1 - Intentional Torts Against the Person|url=https://tunein.com/podcasts/Education-Podcasts/LAW114---Law-of-Torts-Podcasts-p2445777|url-status=live|archive-url=|archive-date=|access-date=|website=LAW114 - Law of Torts|via=TuneIn}}</ref>{{#widget:Iframe|url=https://tunein.com/embed/player/t207327815/|width=100%|height=75px|border=0}}<br />
|}<br />
The trespassory torts are often called intentional torts. The defendant's ''act'' of interference must be intended, though it is not necessary that the defendant anticipate or desire the their actions being wrongful.<ref>''Peter Ballantyne Cree Nation v Canada (Attorney General)'', [https://www.canlii.org/en/sk/skca/doc/2016/2016skca124/2016skca124.html 2016 SKCA 124] at paras 132-133</ref> (It is for this reason that the trespassory torts are sometimes called torts of [[Sandbox:Torts/Strict liability|strict liability]]. By this is meant that "[t]he plaintiff does not have to prove fault on the part of the defendant."<ref>''R v. Brockhill Prison Governor, ex p Evans (No. 2),'' [https://www.bailii.org/uk/cases/UKHL/2000/48.html <nowiki>[2000] UKHL 48 (BAILII)</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#2_4_5__R_v__Brockhill_Prison_Governor__ex_p_Evans__No__2___2000__UKHL_48 §2.4.5]) per Lord Steyn.</ref> But unlike conventional [[Sandbox:Torts/Strict liability|strict liability torts]], there must still be an intention on the part of the defendant to interfere with the plaintiff’s bodily autonomy.)<ref name=":26">''Non-Marine Underwriters, Lloyd's of London v. Scalera'', [https://www.canlii.org/en/ca/scc/doc/2000/2000scc24/2000scc24.html 2000 SCC 24] at para 10.</ref> <br />
<br />
In the English case of ''Letang v. Cooper'', Denning M.R. drew a clear line between liability for intentional and unintentional conduct.<ref name=":8">''Letang v. Cooper,'' [https://www.bailii.org/ew/cases/EWCA/Civ/1964/5.html <nowiki>[1964] EWCA Civ 5</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#1_3_3__Letang_v__Cooper__1964__EWCA_Civ_5 §1.3.3]) at para 10.</ref> Intentional wrongful conduct was said to be the province of the trespass-to-the-person torts; unintentional wrongful conduct was the province of the tort of [[Sandbox:Torts/Negligence|negligence]].<ref>''Letang v. Cooper,'' [https://www.bailii.org/ew/cases/EWCA/Civ/1964/5.html <nowiki>[1964] EWCA Civ 5</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#1_3_3__Letang_v__Cooper__1964__EWCA_Civ_5 §1.3.3]) at para 11.</ref> Diplock L.J., on the other hand, thought the distinction unnecessary to resolve. In ''Collins v. Wilcock'', Goff L.J. defined the trespass-to-the-person torts without commenting on their "requisite mental element."<ref name=":15" /> <br />
<br />
In Canada, there remains some debate over the nature and role of intention in the trespassory torts and whether a defendant may be liable for negligent (rather than intentional) trespass.<ref>''F. (B.) v. Saskatchewan Rivers School Division No. 119'', [https://www.canlii.org/en/sk/skca/doc/2000/2000skca117/2000skca117.html 2000 SKCA 117] at paras 15–18.</ref> This debate stems from the judgment of the Supreme Court of Canada in ''Cook v. Lewis'',<ref>''Cook v. Lewis'', [https://www.canlii.org/en/ca/scc/doc/1951/1951canlii26/1951canlii26.html?autocompleteStr=cook%20v%20lewi&autocompletePos=1 1951 CanLII 26 (SCC)] at 839.</ref> a case decided in 1951 when the tort of [[Sandbox:Torts/Negligence|negligence]] was still in an [[Sandbox:Torts/Duty of care#Development of law|early stage of development]].<ref>{{Cite journal|last=Veitch|first=Edward|title=The Many Facets of Cook v. Lewis|url=https://canlii.ca/t/2c95|journal=(2010) 34 Manitoba L.J. 287, 2010 CanLIIDocs 238}}</ref> In the more recent case of ''Non-Marine Underwriters, Lloyd's of London v. Scalera'', McLachlin J. for a majority of the Court stated:<blockquote>It is unnecessary on this appeal to comment on the relationship between battery (traditionally thought of mainly as an intentional tort) and negligence. In this case, insofar as one could speak of negligent battery, it would be to recognize the defence of reasonable belief in consent to a suit based on an intentional act. ...<ref>''Non-Marine Underwriters, Lloyd's of London v. Scalera'', [https://www.canlii.org/en/ca/scc/doc/2000/2000scc24/2000scc24.html?autocompleteStr=Non-Marine%20Underwriters%2C%20Lloyd%27s%20of%20London%20v.%20Scalera&autocompletePos=1 2000 SCC 24] at para 42.</ref></blockquote>A minority of the Court, by contrast, were prepared to recognize that a “negligent battery occurs when the defendant causes harm by negligently disregarding a foreseeable risk of physical contact.”<ref>''Non-Marine Underwriters, Lloyd's of London v. Scalera'', [https://www.canlii.org/en/ca/scc/doc/2000/2000scc24/2000scc24.html 2000 SCC 24] at para 128.</ref><br />
<br />
It is clear from case law that Canadian courts frequently consider ''intentional'' interference to be an element of the trespass-to-the-person torts.<ref>See e.g. ''Bettel v. Yim,'' [https://www.canlii.org/t/g16gv 1978 CanLII 1580 (ONSC)] at para 13.</ref><br />
<br />
===Capacity===<br />
A person will not be held liable in trespass if they were not capable of forming the intent required to commit an intentional tort. The defendant's capacity is assessed by a fact-specific enquiry. Whether a child can be held civilly responsible for their actions is not determined solely by their age.<ref>''Olsen v. Olsen'' [https://www.canlii.org/en/bc/bcsc/doc/2006/2006bcsc560/2006bcsc560.html <nowiki>[2006] BCSC 560</nowiki>] at para 20. </ref> <br />
<br />
===Defences===<br />
In Canadian common law plaintiffs generally need not plead that the defendant's invasion of their person was unwanted or unlawful. Defences such as [[Sandbox:Torts/Consent|consent]], [[Sandbox:Torts/Self-defence|self-defence]] and [[Sandbox:Torts/Legal authority|legal authority]] are not formally elements of a cause of action but are defences to a cause of action. The defendant bears the onus of pleading and proving such defences on the balance of probabilities. <br />
<br />
A plaintiff need not plead that the defendant's touching was unwanted, although a plaintiff's valid consent will serve as a defence to any claim in battery.<ref name=":28" /><ref name=":20">{{Cite journal|last=Picard|first=Ellen|date=1979|title=Onus of Proving Consent in Trespass to the Person: On Whom Does it Rest?|url=https://www.canlii.org/en/commentary/doc/1979CanLIIDocs71|journal=Alberta Law Review|volume=17|issue=2|pages=322|via=}}</ref> The defendant will prevail if they can prove that the plaintiff consented to their actions.<ref>''Collins v. Wilcock,'' [https://archive.org/details/allenglandlawrep0003all_b4p0/page/374/mode/1up <nowiki>[1984] All ER 374</nowiki>] at para 13.</ref> This can be contrasted to some other common law jurisdictions, where battery is defined as harmful or offensive touching without consent or other lawful justification.<ref>''P v. T'', [1998] NZLR 257 at paras 1–2.</ref><br />
<br />
==Battery==<br />
''"Battery ... is the intentional infliction upon the body of another of a harmful or offensive contact."''<ref name=":4">''Bettel v. Yim,'' [https://www.canlii.org/t/g16gv 1978 CanLII 1580 (ONSC)] at para 13.</ref><br />
<br />
''"[A] battery involves actual physical contact by the tortfeasor or bringing about harmful or offensive contact with another person ...."<ref name=":13">''Ahluwalia v. Ahluwalia'', [https://www.canlii.org/en/on/onca/doc/2023/2023onca476/2023onca476.html 2023 ONCA 476] at para 61.</ref>''<br />
{| class="wikitable" style="width:40%"<br />
! style="background-color:#E0CEF2" |Elements of battery<br />
|-<br />
|1. The defendant intentionally inflicts<br />
|-<br />
|2. harmful or offensive<br />
|-<br />
|3. contact with the plaintiff's body<br />
|}<br />
===Intentional===<br />
The settled rule is that it is for "the plaintiff in a battery case to show only contact through a direct, intentional act of the defendant," after which it is for the defendant to defend their actions by "showing consent or lawful excuse."<ref>''Non-Marine Underwriters, Lloyd's of London v. Scalera'', [https://www.canlii.org/en/ca/scc/doc/2000/2000scc24/2000scc24.html 2000 SCC 24] at para 7.</ref> While the defendant's contact with the plaintiff must have been intended, it is not necessary that the wrongdoer intended the full consequences that followed.<ref name=":4" /> In ''Bettel v. Yim,'' although the defendant did not wish to hurt or physically injure the plaintiff boy, because the defendant did intend physically to shake the boy he was liable for the full extent of the boy's injuries that resulted.<ref name=":4" /><br />
<br />
===Harmful or offensive===<br />
{| class="wikitable" style="float:right;margin-left;10px;width:30%"<br />
! style="background-color:#F2CEE0" |In the news<br />
|-<br />
! style="background-color:#FFF5FA" |''Jake Roper's treatment in prison''<br />
|-<br />
|Jake Roper, the Don Dale detainee who escaped his cell, and was subsequently sprayed with CS gas, in ''Binsaris v. Northern Territory'',<ref>''Binsaris v. Northern Territory,'' [http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2020/22.html?context=1;query=binsaris;mask_path=au/cases/cth/HCA 2020 HCA 22] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#2_2_4__Binsaris_v__Northern_Territory__2020__HCA_22 §2.2.4]) at paras 1–2.</ref> was featured in this news story.<ref>{{Cite web|last=Bardon|first=Jane|date=20 November 2017|title=Don Dale detainee trying to turn his life around|url=https://www.youtube.com/watch?v=xEnf9kqhvG0|url-status=live|archive-url=|archive-date=|access-date=|website=YouTube}}</ref> {{YouTube|id=xEnf9kqhvG0|width=100%|height=125}}<br />
This news story came in the wake of footage being released on ABC's Four Corners program that revealed the horrific conditions of the detention facility and ultimately prompted a [https://www.royalcommission.gov.au/child-detention Royal Commission].<ref>{{Cite web|last=Burke|first=Liz|date=26 Jul 2016|title=ABC Four Corners reveals footage showing extent of alleged abuse of youths in the Northern Territory|url=https://www.dailytelegraph.com.au/news/national/abc-four-corners-reveals-footage-showing-extent-of-alleged-abuse-of-youths-in-the-northern-territory/news-story/a4280b966916b1867fd6f25853b4aec9|url-status=live|archive-url=|archive-date=|access-date=|website=The Daily Telegraph}}</ref><br />
|-<br />
! style="background-color:#FFF5FA" |''Battery in COVID-19''<br />
|-<br />
| In ''Mete v. Masouleh'', the BC Civil Resolution Tribunal considered several claims, including battery, and awarded the plaintiff $1000 as the evidence showed that it was "more likely than not" that the defendant spit on the plaintiff during a neighbourly dispute.<ref>''Mete v. Masouleh'', [https://www.canlii.org/en/bc/bccrt/doc/2023/2023bccrt515/2023bccrt515.html 2023 BCCRT 515 (CanLII)] at paras 41–48.</ref> As this incident occurred in June 2020, the tribunal noted took note of the fact that the plaintiff "was concerned about COVID-19 transmission given the ongoing pandemic at the time".<ref>''Mete v. Masouleh'', [https://www.canlii.org/en/bc/bccrt/doc/2023/2023bccrt515/2023bccrt515.html 2023 BCCRT 515 (CanLII)] at para 48.</ref><br />
|} <br />
In ''Scalera'', McLachlin J. averred that "the law of battery is based on protecting individuals’ right to personal autonomy."<ref name=":28" /> Harmful contact is that which invades the plaintiff's interest in the physical integrity of their body. In ''Cole v. Turner'', it was declared that "[t]he least touching of another in anger is a battery."<ref name=":1">''Cole v. Turner'' (1704), [http://www.commonlii.org/uk/cases/EngR/1738/238.pdf 90 ER 958].</ref> Offensive contact is that which violates social norms and invades the plaintiff's dignitary interest in their body. Examples given in ''Bettel v. Yim'', citing ''Fleming's Law of Torts'', include spitting in someone's face, cutting their hair or kissing them.<ref>''Bettel v. Yim,'' [https://www.canlii.org/en/on/onsc/doc/1978/1978canlii1580/1978canlii1580.html 1978 CanLII 1580 (ONSC)] at para 17.</ref><br />
<br />
Contact that is well-meaning may still amount to battery if done without the plaintiff's consent. A surgery or blood transfusion is presumptively a battery, and is only non-tortious where the patient has consented to it.<ref name=":0">{{Cite book|title=Canadian Tort Law in a Nutshell|last=Kerr|first=Margaret|publisher=Thomson Reuters|year=2019|isbn=|location=Toronto|pages=20}}</ref> It is presumptively a battery to vaccinate someone, although no liability will follow where the person being vaccinated (or if the person is a child, their parents) expressly consented to the procedure.<ref>''Toews v. Weisner,'' [https://www.canlii.org/en/bc/bcsc/doc/2001/2001bcsc15/2001bcsc15.html 2001 BCSC 15] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#6_3_1_2_Toews_v__Weisner__2001__BCSC_15 §6.3.1.2]) at paras 22-24.</ref> <br />
====Acceptable everyday conduct====<br />
''"If two or more meet in a narrow passage, and without any violence or design of harm, the one touches the other gently, it will be no battery."''<ref name=":1" /><br />
<br />
"Trivial" touching is not considered to amount to battery.<ref>''Mete v. Masouleh'', [https://www.canlii.org/en/bc/bccrt/doc/2023/2023bccrt515/2023bccrt515.html 2023 BCCRT 515 (CanLII)] at para 41.</ref> Physical contact that is a part of "ordinary life" is not actionable in tort because: <blockquote>Generally speaking, [[Sandbox:Torts/Consent|consent]] is a defence to battery; and most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact.<ref name=":9" /></blockquote>In ''Collins v. Wilcock'', Goff L.J. outlined some examples of such contact:<br />
*Jostling which is "inevitable" in a supermarket, a subway station or a busy street;<br />
*Taking hold of someones hand "in friendship" or slapping someone's back (within reason) at a party.<br />
*Touching a person for the purpose of engaging their attention, using only a degree of physical contact which is reasonably necessary in the circumstances.<ref name=":9">''Collins v. Wilcock,'' [https://archive.org/details/allenglandlawrep0003all_b4p0/page/374/mode/1up <nowiki>[1984] All ER 374</nowiki>] at para 13. </ref><br />
<br />
But contact that goes beyond the ordinary is not acceptable. For example, persistently touching someone or physically restraining them may still amount to battery.<ref>''Collins v. Wilcock,'' [https://archive.org/details/allenglandlawrep0003all_b4p0/page/374/mode/1up <nowiki>[1984] All ER 374</nowiki>] at para 14.</ref><br />
===Contact===<br />
Not all batteries involve physical contact between the defendant's and plaintiff's bodies. The intentional application of harmful gases or liquids to the plaintiff can amount to battery.<ref>''Binsaris v. Northern Territory,'' [http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2020/22.html?context=1;query=binsaris;mask_path=au/cases/cth/HCA 2020 HCA 22] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#2_2_4__Binsaris_v__Northern_Territory__2020__HCA_22 §2.2.4]) at para 23.</ref> In ''Binsaris v. Northern Territory'', the High Court of Australia found battery in the use of teargas on inmates by correctional staff.<ref>''Binsaris v. Northern Territory,'' [http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2020/22.html?context=1;query=binsaris;mask_path=au/cases/cth/HCA 2020 HCA 22] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#2_2_4__Binsaris_v__Northern_Territory__2020__HCA_22 §2.2.4]) at paras 49-50.</ref><br />
<br />
It has been suggested that a defendant who coerces a plaintiff to touch themselves in a harmful or offensive manner commits battery. In ''Farrell v. Attorney General of Canada'', the Ontario Superior Court considered it arguable that battery could be established in cases where correctional staff required inmates to touch their own bodies in order to conduct strip searches.<ref name=":7">''Farrell v. Attorney General of Canada,'' [https://www.canlii.org/en/on/onsc/doc/2023/2023onsc1474/2023onsc1474.html 2023 ONSC 1474] at paras 184–89.</ref><br />
==Assault==<br />
''"Assault is the intentional creation of the apprehension of imminent harmful or offensive contact. The tort of assault furnishes protection for the interest in freedom from fear of being physically interfered with. Damages are recoverable by someone who is made apprehensive of immediate physical contact, even though that contact never actually occurs."<ref name=":14">''Warman v. Grosvenor'', [https://www.canlii.org/en/on/onsc/doc/2008/2008canlii57728/2008canlii57728.html 2008 CanLII 57728] (ON SC) at para 58; ''McLean v. McLean'', [https://www.canlii.org/en/sk/skca/doc/2019/2019skca15/2019skca15.html?resultIndex=1 2019 SKCA 15] at para 59, citing Allen M Linden, ''et al'', ''Canadian Tort Law'', 10th ed (Toronto: LexisNexis, 2015) at §2.42.</ref>''<br />
<br />
''"[A] tortious assault involves intentionally causing another to fear imminent contact of a harmful or offensive nature."<ref name=":13" />''<br />
<br />
''It constitutes an assault to cause in the plaintiff "a reasonable apprehension of imminent offensive contact."''<ref>''M.(K.) v. M.(H.)'', [https://www.canlii.org/en/ca/scc/doc/1992/1992canlii31/1992canlii31.html <nowiki>[1992] 3 SCR 6 (SCC)</nowiki>]; see ''Deluca v. Bucciarelli'', [https://www.canlii.org/en/on/onca/doc/2022/2022onca774/2022onca774.html 2022 ONCA 774] at paras. 21-24. </ref><br />
{| class="wikitable" style="width:40%"<br />
! style="background-color:#E0CEF2" |Elements of assault<br />
|-<br />
|1. The defendant intentionally causes in the plaintiff<br />
|-<br />
|2. a reasonable<br />
|-<br />
|3. apprehension/fear<br />
|-<br />
| 4. of imminent<br />
|-<br />
|5. harmful or offensive<br />
|-<br />
|6. contact/touching of their body.<br />
|}<br />
Examples of assault raised in the classic case of ''Tuberville v. Savage'' include holding up one's fist against another as if about to strike; and actually striking at another person, but missing them.<ref name=":5">''Tuberville v. Savage,'' [https://www.bailii.org/ew/cases/EWHC/KB/1669/J25.html <nowiki>[1669] EWHC KB J25 (BAILII)</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#2_3_1__Tuberville_v__Savage__1669__EWHC_KB_J25 §2.3.1]).</ref> <br />
===Apprehension===<br />
{| class="wikitable" style="float:right;margin-left;10px;width:25%"<br />
! style="background-color:#CEE0F2" |''Tuberville v. Savage''<br />
|-<br />
|This [https://www.quimbee.com/ Quimbee] video outlines the background of the case.<ref name=":22" />{{YouTube|id=6yhkqA4XjLI|width=100%|height=125}}<br />
|}<br />
[[File:Assize Courts, Manchester.jpg|thumb|The [https://en.wikipedia.org/wiki/Manchester_Assize_Courts Assize Courts of Manchester].|alt=Photo of the Assize Courts of Manchester.]]<br />
In order for there to be an assault, the alleged wrongdoer must lead the plaintiff to apprehend a threat of physical violence.''<ref name=":14" />'' In ''Tuberville v. Savage'', the court found that no assault had occurred because the words that were claimed to be tortious were conditional on the judges not being in town.<ref name=":5" /> Specifically, the statement in question was "If it were not [https://en.wikipedia.org/wiki/Assizes assize-time], I would not take such language from you."<ref name=":5" /> Properly understood, the statement suggested that Tuberville would not strike at Savage because the judges ''were'' in town, although he would not have exercised such restraint had the circumstances been different. Thus, there was no assault.<ref name=":5" /><br />
<br />
=== Reasonableness ===<br />
The plaintiff's apprehension must be reasonable such that the defendant's conduct would cause an ordinary person to fear violence. The British Columbia Supreme Court in ''Mahal v. Young'' stated:<blockquote>The actual ability to execute a threat need not be present, as long as it appears to a reasonable plaintiff that it is there. If a person is reasonably apprehensive of imminent physical contact, even though he is in no real danger, he may still recover for assult [sic].<ref name=":17">''Mahal v. Young'', [1986] BCJ No 2060 citing Allen Linden, ''Canadian Tort Law'', 3rd ed (Toronto: Butterworths, 1982) at 41.</ref></blockquote><br />
===Imminence===<br />
<br />
There is some debate in the case law as to the scope of imminence as an element of assault, although the Ontario Court of Appeal maintains that "[i]mminence is a critical component of the tort of assault."<ref>''Barker v. Barker'', [https://www.canlii.org/en/on/onca/doc/2022/2022onca567/2022onca567.html 2022 ONCA 567] at para 171; see ''Alberta Health Services v. Johnston'', [https://www.canlii.org/en/ab/abkb/doc/2023/2023abkb209/2023abkb209.html 2023 ABKB 209] at para 76. </ref> What does it mean for a plaintiff to fear immediate or imminent harm? Much turns on the circumstances. An attempted battery may be imminent even if it is stopped before physical contact can actually occur.<ref name=":6" /> In ''Stephens v. Myers'', even though the defendant was stopped before he could actually strike the plaintiff, the court found that all elements of the tort of assault were met.<ref name=":6">''Stephens v. Myers,'' [https://www.bailii.org/ew/cases/EWHC/KB/1830/J37.html <nowiki>[1830] EWHC KB J37 (BAILII)</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#2_3_2__Stephens_v__Myers__1830__EWHC_KB_J37 §2.3.2]).</ref> The court noted that it was crucial that the defendant possessed "the means of carrying the threat into effect."<ref name=":6" /><br />
<br />
Quoting Linden et al, the Ontario Court of Appeal in ''Barker v. Barker'' noted that "[t]o threaten to do harm to someone at some future time, because this is not as likely to spur retaliation, does not amount to an assault, although it may give rise to other tortious or even criminal responsibility."<ref>''Barker v. Barker'', [https://www.canlii.org/en/on/onca/doc/2022/2022onca567/2022onca567.html?searchUrlHash=AAAAAQAHYXNzYXVsdAAAAAAB&resultIndex=5 2022 ONCA 567] at para 171, citing Allen M Linden, et al, ''Canadian Tort Law'', 11th ed (Toronto: LexisNexis, 2018) at §2.42.</ref> However, in ''Tam v. Chan'', the Hong Kong Court of First Instance stated that "[w]hether the act complained of by the plaintiff constitutes an assault must depend on all the circumstances including the nature of the act and the manner in which it was made".<ref>''Pong Seong v. Chan,'' [https://www.hklii.hk/cgi-bin/sinodisp/eng/hk/cases/hkcfi/2014/1480.html <nowiki>[2014] HKCFI 1480</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#2_3_3__Pong_Seong_v__Chan__2014__HKCFI_1480 §2.3.3]) at para 65.</ref> The court then went on to consider case law which stated:<blockquote>Some threats are not capable of arousing apprehension of violence in the mind of a reasonable person unless there is an immediate prospect of the threat being carried out. Others, I believe, can create the apprehension even if it is made clear that the violence may occur in the future, at times unspecified and uncertain. Being able to immediately carry out the threat is but one way of creating the fear of apprehension, but not the only way. There are other ways, more subtle and perhaps more effective.<ref>''Barton v. Armstrong,'' [1969] 2 NSWR 451 at 455.</ref></blockquote><br />
<br />
==False imprisonment==<br />
''"The plaintiff must prove three elements to establish the tort of false imprisonment. He or she must have been totally deprived of liberty; this deprivation must have been against his or her will; and it must be caused by the defendant. The onus then shifts to the defendant to justify the detention, based on [[Sandbox:Torts/Legal authority|legal authority]] under common law or statute."''<ref name=":21">''Kovacs v. Ontario Jockey Club'', [https://www.canlii.org/en/on/onsc/doc/1995/1995canlii7397/1995canlii7397.html?resultIndex=1 1995 CanLII 7397 (ONSC)] at para 45.</ref><br />
<br />
''"Unlawful imprisonment, commonly referred to in textbook commentary as false imprisonment, is a tort of strict liability. Its elements are confinement of another within fixed boundaries, and intention to confine. Loss is not an element of the tort and so is not a prerequisite to a remedy of damages."<ref>''Ewert v. Canada (AG)'', [https://www.canlii.org/en/bc/bcca/doc/2022/2022bcca131/2022bcca131.html 2022 BCCA 131] at para 44</ref>''<br />
<br />
''"[F]alse arrest ... is the intentional and total confinement of a person against his will without lawful justification."<ref>''Jensen v. Stemmer et al.'', [https://www.canlii.org/en/mb/mbca/doc/2007/2007mbca42/2007mbca42.html 2007 MBCA 42] at para 65.</ref>''<br />
{| class="wikitable" style="width:55%"<br />
! style="background-color:#E0CEF2" | Elements of false imprisonment<br />
|-<br />
|1. The defendant intentionally and<br />
|-<br />
|2. totally confines the plaintiff<br />
|-<br />
|3. against the plaintiff's will.<br />
|}<br />
{| class="wikitable" style="float:right;margin-left;10px;width:30%"<br />
! style="background-color:#F2CEE0" |In the news<br />
|-<br />
! style="background-color:#FFF5FA" |''Judge held liable for falsely imprisoning self-represented litigant''<br />
|-<br />
|In 2023, an inferior court judge in Australia was held liable for false imprisonment for unlawfully ordering a self-represented litigant to 12 months' imprisonment for contempt of court.<ref>''Stradford (a pseudonym) v. Judge Vasta'', [https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2023/2023fca1020 <nowiki>[2023] FCA 1020</nowiki>].</ref> One of the primary issues in the case was whether or not the Judge was "immune from any liability because he made the imprisonment order in his capacity as a judge."<ref>''Stradford (a pseudonym) v. Judge Vasta'', [https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2023/2023fca1020 <nowiki>[2023] FCA 1020</nowiki>] at para 12.</ref> The judgment was overturned on appeal on the basis of judicial immunity.<ref>''Queensland v Stradford'' [https://eresources.hcourt.gov.au/showCase/2025/HCA/3 <nowiki>[2025] HCA 3</nowiki>]. </ref> <br />
This episode of [https://www.abc.net.au/listen/programs/lawreport/judge-liable-wrongful-imprisonment-palawa-no/102739694 The Law Report] discusses the case with the plaintiff's lawyer, [https://www.kencush.com.au/team Sam Tierney].<ref>{{Cite web|last=Law Report|date=5 September 2023|title=Judge liable for wrongful imprisonment and a Palawa lawyer's case for No|url=https://www.abc.net.au/listen/programs/lawreport/judge-liable-wrongful-imprisonment-palawa-no/102739694|url-status=live|website=ABC News}}</ref>{{#widget:Iframe|url=https://www.listennotes.com/podcasts/law-report/judge-liable-for-wrongful-zavd20G1XfT/embed/|width=100%|height=100|border=0}}<br />
<br />
The case was reported in The Guardian article, "[https://www.theguardian.com/australia-news/2023/aug/30/man-jailed-during-routine-property-dispute-wins-300000-after-suing-judge-over-fundamental-errors Man jailed during routine property dispute wins $300,000 after suing judge over ‘fundamental errors’]".<ref>{{Cite news|url=https://www.theguardian.com/australia-news/2023/aug/30/man-jailed-during-routine-property-dispute-wins-300000-after-suing-judge-over-fundamental-errors|title=Man jailed during routine property dispute wins $300,000 after suing judge over ‘fundamental errors’|last=Knaus|first=Christopher|date=30 August 2023|work=The Guardian|last2=Bucci|first2=Nino}}</ref><br />
|}<br />
===Total confinement / deprivation of liberty===<br />
False imprisonment (or false arrest) entails that the plaintiff was "''totally'' deprived of liberty."<ref name=":21" />''<ref>See ''Huang v. Silvercorp Metals Inc.'', [https://www.canlii.org/en/bc/bcca/doc/2016/2016bcca100/2016bcca100.html 2016 BCCA 100] at para 23.</ref>'' Merely preventing a plaintiff from entering a space or traveling in a particular direction is not false imprisonment. This was demonstrated in ''Bird v. Jones'', where a portion of a public highway was closed off for a paid boat race.<ref>''Bird v. Jones,'' [https://www.bailii.org/ew/cases/EWHC/QB/1845/J64.html <nowiki>[1845] EWHC QB J64 (BAILII)</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#2_4_1__Bird_v__Jones__1845__EWHC_QB_J64 §2.4.1]) at para 3.</ref> The plaintiff climbed over the fence in order to get to his destination, but two policemen prevented the plaintiff from passing through. The plaintiff was allowed to return the same way he came, and no actual force or restraint was used on the plaintiff. Since the plaintiff wasn't totally confined, there was no false imprisonment.<br />
<br />
=== Psychological confinement ===<br />
Confinement need not entail physical restraint.<ref>''Chaytor v. London, New York and Paris Association of Fashion Ltd,'' [https://www.canlii.org/t/gwdw2 1961 CanLII 404 (NLSC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#2_4_3__Chaytor_v__London__New_York_and_Pof_Fashion_Ltd__1961__CanLII_404__NL_SC_ §2.4.3]) at para 38.</ref> For example, in ''Chaytor v. London, New York and Paris Association of Fashion Ltd'', the plaintiffs, who were accused of wrongdoing in a retail store, felt psychological pressure to remain in the store after the police were called.<ref>''Chaytor v. London, New York and Paris Association of Fashion Ltd,'' [https://www.canlii.org/t/gwdw2 1961 CanLII 404 (NLSC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#2_4_3__Chaytor_v__London__New_York_and_Pof_Fashion_Ltd__1961__CanLII_404__NL_SC_ §2.4.3]) at paras 28. 31.</ref> The court found that "what one might call a psychological type of imprisonment" could amount to the tort of false imprisonment.<ref>''Chaytor v. London, New York and Paris Association of Fashion Ltd,'' [https://www.canlii.org/t/gwdw2 1961 CanLII 404 (NLSC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#2_4_3__Chaytor_v__London__New_York_and_Pof_Fashion_Ltd__1961__CanLII_404__NL_SC_ §2.4.3]) at para 31.</ref><br />
<br />
===Intention to confine===<br />
The relevant intention is to confine the plaintiff, regardless of whether the defendant believed the confinement to be lawful. In ''R v. Brockhill Prison Governor'', the respondent was serving a lawfully-imposed prison sentence for which she was entitled to a reduction in actual time served. Due to a mistake in the calculation of her sentence she spent longer in prison than she ought to have.<ref>''R v. Brockhill Prison Governor, ex p Evans (No. 2),'' [https://www.bailii.org/uk/cases/UKHL/2000/48.html <nowiki>[2000] UKHL 48 (BAILII)</nowiki>].</ref> The elements of the tort of false imprisonment were found to be met, since the Governor of the prison had meant to confine the respondent during that period, even though the Governor had acted in good faith.<ref name=":25" /> Mere belief that a detention is lawful is not a justification in the event the detention is shown to be unlawful.<ref name=":25">''R v. Brockhill Prison Governor, ex p Evans (No. 2),'' [https://www.bailii.org/uk/cases/UKHL/2000/48.html <nowiki>[2000] UKHL 48 (BAILII)</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#2_4_5__R_v__Brockhill_Prison_Governor__ex_p_Evans__No__2___2000__UKHL_48 §2.4.5]) at paras 4-8.</ref><br />
<br />
== Criminal trespass to the person ==<br />
Actions that attract liability in the torts of battery, assault and false imprisonment may also be criminal offences that can be prosecuted by the state.<ref name=":11" /><ref name=":12" /> The elements of offences set out in the Criminal Code overlap with, but are not necessarily coterminous with, the elements elucidated in the common law of tort. The [http://criminalnotebook.ca/index.php/Main_Page Criminal Law Notebook] discusses the crimes of [http://criminalnotebook.ca/index.php/Common_Assault_(Offence) assault] and [http://criminalnotebook.ca/index.php?title=Kidnapping_and_Unlawful_Confinement_(Offence)&mobileaction=toggle_view_desktop forcible confinement] in more detail. <br />
{| class="wikitable mw-collapsible mw-collapsed" style="width: 100%"<br />
! style="background-color:#CEF2E0" |Assault and battery in the ''Criminal Code of Canada''<br />
|-<br />
|''[https://laws-lois.justice.gc.ca/eng/acts/c-46/section-265.html Criminal Code]'', RSC 1985, c. C-46 s. 265(1).<ref name=":11">''[https://laws-lois.justice.gc.ca/eng/acts/c-46/section-265.html Criminal Code]'', RSC 1985, c. C-46 s. 265(1)</ref><br />
|-<br />
|'''265 (1)''' A person commits an assault when<br />
<br />
: (a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;<br />
<br />
:(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or<br />
<br />
:(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.<br />
|}<br />
{| class="wikitable mw-collapsible mw-collapsed" style="width: 100%"<br />
! style="background-color:#CEF2E0" |Forcible confinement in the ''Criminal Code of Canada''<br />
|-<br />
|''[https://laws-lois.justice.gc.ca/eng/acts/c-46/section-279.html Criminal Code]'', RSC 1985, c. C-46 s. 279(2).<ref name=":12">''[https://laws-lois.justice.gc.ca/eng/acts/c-46/section-279.html Criminal Code]'', RSC 1985, c. C-46 s. 279(2)</ref><br />
|-<br />
|'''279 (2)''' Every one who, without lawful authority, confines, imprisons or forcibly seizes another person is guilty of<br />
<br />
:(a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or<br />
<br />
:(b) an offence punishable on summary conviction.<br />
|}<br />
<br />
==Discussion questions==<br />
===Battery and assault=== <br />
<br />
*In ''Binsaris v. Northern Territory,'' the concurring opinion of Gageler J. held that though it was lawful and reasonable for the correctional officers to utilize teargas when trying to subdue Jake Roper, exposure of other inmates to the teargas nevertheless amounted to battery. Why was the apparent lawfulness and reasonableness of the officers' actions not a good defence to the tortious claims?<br />
*In light of ''Kohli v. Manchanda'',<ref>''Kohli v. Manchanda,'' [http://www.liiofindia.org/in/cases/cen/INSC/2008/42.html <nowiki>[2008] INSC 42</nowiki>] ('''[https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Kohli_v._Manchanda §2.2.2]''').</ref> consider the lawsuit that has been brought against Dr. Andrew Kotaska for performing a sterilization surgery on an Inuit woman from Tuktoyaktuk, NWT, without her consent.<ref>{{Cite news|url=https://ca.style.yahoo.com/tuktoyaktuk-woman-files-6m-lawsuit-110000167.html|title=Tuktoyaktuk woman files $6M lawsuit claiming N.W.T. doctor sterilized her without consent|date=March 10, 2022|work=CBC}}</ref> The doctor believed he was acting in his patient's best interests. What would be the basis of the plaintiff's civil claim and of the defendant's defence? What is the relevance of the doctor's [[Sandbox:Torts/Apologies|apology]]?<ref>{{Cite news|url=https://cabinradio.ca/151052/news/health/doctor-who-sterilized-woman-without-consent-apologizes-in-statement/|title=Doctor who sterilized woman without consent apologizes in statement|date=September 7, 2023|work=Cabin Radio}}</ref> What is the significance of the RCMP's decision not to investigate or prosecute the doctor?<ref>{{Cite news|url=https://abcnews.go.com/Health/wireStory/canadian-police-investigate-doctor-sterilizing-indigenous-woman-103528539|title=Canadian police won't investigate doctor for sterilizing Indigenous woman|date=September 27, 2023|work=ABC News}}</ref> A report of the Canadian Senate into ''Forced and Coerced Sterilization of Persons in Canada'' has found that "the horrific practice of forced and coerced sterilization continues to occur, underreported, and disproportionately affecting Indigenous women and other vulnerable and marginalized groups in Canada."<ref>{{Cite book|url=https://sencanada.ca/en/info-page/parl-43-2/ridr-forced-and-coerced-sterilization-of-persons-in-canada/|title=Forced and Coerced Sterilization of Persons in Canada|last=Senate Committee on Human Rights|year=2021|pages=8}}</ref> Class actions are currently being pursued. What role, if any, might tort law play in helping this country "to fully reckon with its troubled colonial past" and to "put a stop to a decades-long practice that is considered genocide"?<ref>{{Cite news|url=https://www.ctvnews.ca/health/canada-s-indigenous-women-forcibly-sterilized-decades-after-other-rich-countries-stopped-1.6476708|title=Canada's Indigenous women forcibly sterilized decades after other rich countries stopped|date=July 12, 2023|work=CTV News}}</ref><br />
<br />
===False imprisonment=== <br />
<br />
*Lord Denman, writing the dissent for ''Bird'' ''v. Jones'', noted that although the plaintiff still had the option of going back (i.e., not passing onwards), this was irrelevant to the question of whether the plaintiff was falsely imprisoned. Do you agree? How have the courts in other cases addressed this issue?<br />
*Consider ''Stradford v. Judge Vasta''.<ref>''Stradford v. Judge Vasta,'' [https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2023/2023fca1020 <nowiki>[2023] FCA 1020</nowiki>].</ref> How does this case engage [[Sandbox:Torts#Equality of all under ordinary law|the Diceyan principle of equality under ordinary law]]?<br />
*Does the law enforcement tactic of "[https://en.wikipedia.org/wiki/Kettling kettling]"<ref>{{Cite news|url=https://www.cbc.ca/news/canada/crowd-control-what-is-kettling-1.1133313|title=Crowd control: What is kettling?|date=May 24, 2012|work=CBC News}}</ref> protestors amount to false imprisonment? Consider the judgment of the English Court of Appeal in ''Walker v. Commissioner of the Police of the Metropolis'' (discussing the kettling of protestors in Oxford Circus on May Day 2001),<ref>''Walker v. Commissioner of the Police of the Metropolis (Rev 1),'' [https://www.bailii.org/ew/cases/EWCA/Civ/2014/897.html#para25 <nowiki>[2014] EWCA Civ 897</nowiki>] at para 25. </ref> as well as the ABC News article, "[https://abcnews.go.com/US/new-york-city-pay-record-settlement-kettling-george/story?id=97556607 New York City to pay record settlement for 'kettling' George Floyd protesters]."<br />
<br />
===Criminal and civil liability=== <br />
*Why might individuals choose to pursue an action in tort rather than criminal law (or vice versa)? Consider the CBC news stories [https://www.cbc.ca/news/canada/british-columbia/civil-lawsuit-criminal-case-intimate-partner-violence-1.6325951 "Woman assaulted by husband awarded $800K in civil lawsuit. He received an absolute discharge in criminal case"]<ref>{{Cite news|url=https://www.cbc.ca/news/canada/british-columbia/civil-lawsuit-criminal-case-intimate-partner-violence-1.6325951|title=Woman assaulted by husband awarded $800K in civil lawsuit. He received an absolute discharge in criminal case|last=Uguen-Csenge|first=Eva|date=28 January 2022|work=CBC News|access-date=}}</ref> and [https://www.cbc.ca/news/canada/albert-schultz-soulpepper-civil-lawsuit-1.4472933 "'Her voice is heard': Why some accusers pursue civil rather than criminal justice in harassment cases"].<ref>{{Cite news|url=https://www.cbc.ca/news/canada/albert-schultz-soulpepper-civil-lawsuit-1.4472933|title='Her voice is heard': Why some accusers pursue civil rather than criminal justice in harassment cases|last=Gollom|first=Mark|date=5 January 2018|work=CBC News|access-date=}}</ref><br />
<br />
==Quiz==<br />
{{H5P|id=2297|width=|height=|responsive=yes}}<br />
<br />
{{DISPLAYTITLE:<span style="position: absolute; clip: rect(1px 1px 1px 1px); clip: rect(1px, 1px, 1px, 1px);">{{FULLPAGENAME}}</span>}}<br />
<references /></div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Documentation:Torts/Trespass_to_the_person&diff=858797Documentation:Torts/Trespass to the person2025-04-08T18:27:49Z<p>SamuelBeswick: /* False imprisonment */</p>
<hr />
<div>{{ Infobox Torts }}<br />
<span style="font-size:200%;">{{SUBPAGENAME}}</span>'''<br>'''The torts of battery, assault, and false imprisonment are together known as the torts of trespass to the person.<ref name=":18">{{Cite journal|last=Sullivan|first=Ruth|date=1987|title=Trespass to the Person in Canada: A Defence of the Traditional Approach|url=https://canlii.ca/t/2bs9|journal=Ottawa Law Review|volume=19|issue=2|pages=536|via=CanLII}}</ref> These torts are said to be connected by their "commitment to the personal autonomy of the individual" and the presumption "that each individual has exclusive control over his own physical person so that any attempt by another to usurp that control is a wrong."<ref name=":18" /> They are torts actionable ''per se'', meaning a plaintiff does not have to prove they have suffered any damage in order to establish their cause of action.<ref name=":27">''Norberg v. Wynrib'', [https://www.canlii.org/en/ca/scc/doc/1992/1992canlii65/1992canlii65.html 1992 CanLII 65 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#9_4_1__Norberg_v__Wynrib__1992__CanLII_65__SCC_ §9.4.1]) at para 54.</ref> <br />
<br />
Common law courts sometimes [[Sandbox:Torts/Introduction#Nature of common law elements|vary in their expression]] of the precise elements of the trespass to the person torts. In the oft-cited English case of ''Collins v. Wilcock'', Goff L.J. summarized the trespass-to-the-person torts as follows: <br />
<br />
*'''Battery:''' "[T]he actual infliction of unlawful force on another person."<ref name=":15">''Collins v. Wilcock,'' [https://archive.org/details/allenglandlawrep0003all_b4p0/page/374/mode/1up <nowiki>[1984] All ER 374</nowiki>] at para 11.</ref><br />
*'''Assault:''' "[A]n act which causes another person to apprehend the infliction of immediate, unlawful, force on his person."<ref name=":15" /><br />
*'''False imprisonment:''' "[T]he unlawful imposition of constraint upon another’s freedom of movement from a particular place."<ref name=":15" /><br />
<br />
== Foundational concepts ==<br />
The trespass torts, which originate in the writ of [https://en.wikipedia.org/wiki/Vi_et_armis trespass ''vi et armis''], share certain common features. <br />
<br />
=== Directness ===<br />
One common feature of these torts, which stems from the trespass form of action, is that there must be a "direct connection between the defendant’s action and the plaintiff’s injury".<ref name=":19">''Non-Marine Underwriters, Lloyd's of London v. Scalera'', [https://www.canlii.org/en/ca/scc/doc/2000/2000scc24/2000scc24.html 2000 SCC 24] at para 11.</ref> McLachlin J. for the Supreme Court of Canada in ''Non-Marine Underwriters, Lloyd's of London v. Scalera'' explained that an "[i]nterference is direct if it is the immediate consequence of a force set in motion" by the defendant.<ref name=":28">''Non-Marine Underwriters, Lloyd's of London v. Scalera'', [https://www.canlii.org/en/ca/scc/doc/2000/2000scc24/2000scc24.html 2000 SCC 24] at para 8.</ref><br />
{| class="wikitable" style="float:right;margin-left;10px;width:25%"<br />
! style="background-color:#CEE0F2" | ''Scott v. Shepherd'' background<br />
|-<br />
|This [https://www.quimbee.com/ Quimbee] video provides the background of the case.<ref name=":22">{{Cite web|last=Quimbee|first=|date=23 February 2022|title=Tuberville v. Savage Case Brief Summary {{!}} Law Case Explained|url=https://www.youtube.com/watch?v=6yhkqA4XjLI|url-status=live|archive-url=|archive-date=|access-date=|website=YouTube}}<br />
</ref>{{YouTube|id=m-8oLq0ggZQ|width=100%|height=125}}<br />
|}An interference may be an immediate consequence even when the plaintiff and defendant do not physically meet. In ''Scott v. Shepherd'', the defendant threw a live firecracker into a public market.<ref name=":3">''Scott v. Shepherd'' (1773), [http://www.commonlii.org/int/cases/EngR/1746/464.pdf 96 ER 525 (KB)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#2_1_2__Scott_v__Shepherd__1773__All_ER_Rep_295__KB_ §2.1.2]).</ref> The firecracker was thrown around by several individuals who were trying to avoid it, until it blew up in the plaintiff's face. Although the defendant did not personally come into contact with the plaintiff, the court found that the defendant was still liable for the plaintiff's injury since the injury was the direct consequence of the defendant's unlawful conduct.<br />
<br />
=== Volition ===<br />
The plaintiff must have been in control of their actions to be liable. In ''Smith v. Stone'', the defendant was carried onto the plaintiff's land by force.<ref name=":2" /> The court held that this was not tortious conduct by the defendant because the defendant had not acted with volition at the time.<ref name=":2">''Smith v. Stone'' (1647), [http://www.commonlii.org/int/cases/EngR/1658/591.pdf 82 ER 533 (KB)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#2_1_1__Smith_v__Stone__1647__Style_65__82_ER_533__KB_ §2.1.1])</ref> The situation would have been different had the defendant been cajoled by others' [[Sandbox:Torts/Excuses#Duress|duress]]; in such a case a defendant might be in an unenviable position, but still in control of their actions.<ref>''Gilbert v. Stone'' (1648)'','' [https://www.google.ca/books/edition/The_English_Reports_King_s_Bench_Divisio/S5RDAQAAMAAJ?hl=en&gbpv=1&pg=PA539 82 ER 539 (KB)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#6_2_1_1_Gilbert_v__Stone__1648__Style_72__82_E_R__539__KB_ §6.2.1.1]).</ref><br />
<br />
=== Intention ===<br />
{| class="wikitable" style="float:right;margin-left;10px;width:25%"<br />
! style="background-color:#CEE0F2" | Intentional torts against the person<br />
|-<br />
|In the Australian podcast ''[https://open.spotify.com/episode/3dbmclweznl41rB4g1ZiZ0 Law of Torts]'', host [https://bjbs.csu.edu.au/centres/law-and-justice/staff/profiles/academic-staff/kim-bailey Kim Bailey] discusses the torts of assault, battery, and false imprisonment.<ref>{{Cite web|last=Bailey|first=Kim|date=28 Jun 2021|title=Topic 1 - Intentional Torts Against the Person|url=https://tunein.com/podcasts/Education-Podcasts/LAW114---Law-of-Torts-Podcasts-p2445777|url-status=live|archive-url=|archive-date=|access-date=|website=LAW114 - Law of Torts|via=TuneIn}}</ref>{{#widget:Iframe|url=https://tunein.com/embed/player/t207327815/|width=100%|height=75px|border=0}}<br />
|}<br />
The trespassory torts are often called intentional torts. The defendant's ''act'' of interference must be intended, though it is not necessary that the defendant anticipate or desire the their actions being wrongful.<ref>''Peter Ballantyne Cree Nation v Canada (Attorney General)'', [https://www.canlii.org/en/sk/skca/doc/2016/2016skca124/2016skca124.html 2016 SKCA 124] at paras 132-133</ref> (It is for this reason that the trespassory torts are sometimes called torts of [[Sandbox:Torts/Strict liability|strict liability]]. By this is meant that "[t]he plaintiff does not have to prove fault on the part of the defendant."<ref>''R v. Brockhill Prison Governor, ex p Evans (No. 2),'' [https://www.bailii.org/uk/cases/UKHL/2000/48.html <nowiki>[2000] UKHL 48 (BAILII)</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#2_4_5__R_v__Brockhill_Prison_Governor__ex_p_Evans__No__2___2000__UKHL_48 §2.4.5]) per Lord Steyn.</ref> But unlike conventional [[Sandbox:Torts/Strict liability|strict liability torts]], there must still be an intention on the part of the defendant to interfere with the plaintiff’s bodily autonomy.)<ref name=":26">''Non-Marine Underwriters, Lloyd's of London v. Scalera'', [https://www.canlii.org/en/ca/scc/doc/2000/2000scc24/2000scc24.html 2000 SCC 24] at para 10.</ref> <br />
<br />
In the English case of ''Letang v. Cooper'', Denning M.R. drew a clear line between liability for intentional and unintentional conduct.<ref name=":8">''Letang v. Cooper,'' [https://www.bailii.org/ew/cases/EWCA/Civ/1964/5.html <nowiki>[1964] EWCA Civ 5</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#1_3_3__Letang_v__Cooper__1964__EWCA_Civ_5 §1.3.3]) at para 10.</ref> Intentional wrongful conduct was said to be the province of the trespass-to-the-person torts; unintentional wrongful conduct was the province of the tort of [[Sandbox:Torts/Negligence|negligence]].<ref>''Letang v. Cooper,'' [https://www.bailii.org/ew/cases/EWCA/Civ/1964/5.html <nowiki>[1964] EWCA Civ 5</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#1_3_3__Letang_v__Cooper__1964__EWCA_Civ_5 §1.3.3]) at para 11.</ref> Diplock L.J., on the other hand, thought the distinction unnecessary to resolve. In ''Collins v. Wilcock'', Goff L.J. defined the trespass-to-the-person torts without commenting on their "requisite mental element."<ref name=":15" /> <br />
<br />
In Canada, there remains some debate over the nature and role of intention in the trespassory torts and whether a defendant may be liable for negligent (rather than intentional) trespass.<ref>''F. (B.) v. Saskatchewan Rivers School Division No. 119'', [https://www.canlii.org/en/sk/skca/doc/2000/2000skca117/2000skca117.html 2000 SKCA 117] at paras 15–18.</ref> This debate stems from the judgment of the Supreme Court of Canada in ''Cook v. Lewis'',<ref>''Cook v. Lewis'', [https://www.canlii.org/en/ca/scc/doc/1951/1951canlii26/1951canlii26.html?autocompleteStr=cook%20v%20lewi&autocompletePos=1 1951 CanLII 26 (SCC)] at 839.</ref> a case decided in 1951 when the tort of [[Sandbox:Torts/Negligence|negligence]] was still in an [[Sandbox:Torts/Duty of care#Development of law|early stage of development]].<ref>{{Cite journal|last=Veitch|first=Edward|title=The Many Facets of Cook v. Lewis|url=https://canlii.ca/t/2c95|journal=(2010) 34 Manitoba L.J. 287, 2010 CanLIIDocs 238}}</ref> In the more recent case of ''Non-Marine Underwriters, Lloyd's of London v. Scalera'', McLachlin J. for a majority of the Court stated:<blockquote>It is unnecessary on this appeal to comment on the relationship between battery (traditionally thought of mainly as an intentional tort) and negligence. In this case, insofar as one could speak of negligent battery, it would be to recognize the defence of reasonable belief in consent to a suit based on an intentional act. ...<ref>''Non-Marine Underwriters, Lloyd's of London v. Scalera'', [https://www.canlii.org/en/ca/scc/doc/2000/2000scc24/2000scc24.html?autocompleteStr=Non-Marine%20Underwriters%2C%20Lloyd%27s%20of%20London%20v.%20Scalera&autocompletePos=1 2000 SCC 24] at para 42.</ref></blockquote>A minority of the Court, by contrast, were prepared to recognize that a “negligent battery occurs when the defendant causes harm by negligently disregarding a foreseeable risk of physical contact.”<ref>''Non-Marine Underwriters, Lloyd's of London v. Scalera'', [https://www.canlii.org/en/ca/scc/doc/2000/2000scc24/2000scc24.html 2000 SCC 24] at para 128.</ref><br />
<br />
It is clear from case law that Canadian courts frequently consider ''intentional'' interference to be an element of the trespass-to-the-person torts.<ref>See e.g. ''Bettel v. Yim,'' [https://www.canlii.org/t/g16gv 1978 CanLII 1580 (ONSC)] at para 13.</ref><br />
<br />
===Capacity===<br />
A person will not be held liable in trespass if they were not capable of forming the intent required to commit an intentional tort. The defendant's capacity is assessed by a fact-specific enquiry. Whether a child can be held civilly responsible for their actions is not determined solely by their age.<ref>''Olsen v. Olsen'' [https://www.canlii.org/en/bc/bcsc/doc/2006/2006bcsc560/2006bcsc560.html <nowiki>[2006] BCSC 560</nowiki>] at para 20. </ref> <br />
<br />
===Defences===<br />
In Canadian common law plaintiffs generally need not plead that the defendant's invasion of their person was unwanted or unlawful. Defences such as [[Sandbox:Torts/Consent|consent]], [[Sandbox:Torts/Self-defence|self-defence]] and [[Sandbox:Torts/Legal authority|legal authority]] are not formally elements of a cause of action but are defences to a cause of action. The defendant bears the onus of pleading and proving such defences on the balance of probabilities. <br />
<br />
A plaintiff need not plead that the defendant's touching was unwanted, although a plaintiff's valid consent will serve as a defence to any claim in battery.<ref name=":28" /><ref name=":20">{{Cite journal|last=Picard|first=Ellen|date=1979|title=Onus of Proving Consent in Trespass to the Person: On Whom Does it Rest?|url=https://www.canlii.org/en/commentary/doc/1979CanLIIDocs71|journal=Alberta Law Review|volume=17|issue=2|pages=322|via=}}</ref> The defendant will prevail if they can prove that the plaintiff consented to their actions.<ref>''Collins v. Wilcock,'' [https://archive.org/details/allenglandlawrep0003all_b4p0/page/374/mode/1up <nowiki>[1984] All ER 374</nowiki>] at para 13.</ref> This can be contrasted to some other common law jurisdictions, where battery is defined as harmful or offensive touching without consent or other lawful justification.<ref>''P v. T'', [1998] NZLR 257 at paras 1–2.</ref><br />
<br />
==Battery==<br />
''"Battery ... is the intentional infliction upon the body of another of a harmful or offensive contact."''<ref name=":4">''Bettel v. Yim,'' [https://www.canlii.org/t/g16gv 1978 CanLII 1580 (ONSC)] at para 13.</ref><br />
<br />
''"[A] battery involves actual physical contact by the tortfeasor or bringing about harmful or offensive contact with another person ...."<ref name=":13">''Ahluwalia v. Ahluwalia'', [https://www.canlii.org/en/on/onca/doc/2023/2023onca476/2023onca476.html 2023 ONCA 476] at para 61.</ref>''<br />
{| class="wikitable" style="width:40%"<br />
! style="background-color:#E0CEF2" |Elements of battery<br />
|-<br />
|1. The defendant intentionally inflicts<br />
|-<br />
|2. harmful or offensive<br />
|-<br />
|3. contact with the plaintiff's body<br />
|}<br />
===Intentional===<br />
The settled rule is that it is for "the plaintiff in a battery case to show only contact through a direct, intentional act of the defendant," after which it is for the defendant to defend their actions by "showing consent or lawful excuse."<ref>''Non-Marine Underwriters, Lloyd's of London v. Scalera'', [https://www.canlii.org/en/ca/scc/doc/2000/2000scc24/2000scc24.html 2000 SCC 24] at para 7.</ref> While the defendant's contact with the plaintiff must have been intended, it is not necessary that the wrongdoer intended the full consequences that followed.<ref name=":4" /> In ''Bettel v. Yim,'' although the defendant did not wish to hurt or physically injure the plaintiff boy, because the defendant did intend physically to shake the boy he was liable for the full extent of the boy's injuries that resulted.<ref name=":4" /><br />
<br />
===Harmful or offensive===<br />
{| class="wikitable" style="float:right;margin-left;10px;width:30%"<br />
! style="background-color:#F2CEE0" |In the news<br />
|-<br />
! style="background-color:#FFF5FA" |''Jake Roper's treatment in prison''<br />
|-<br />
|Jake Roper, the Don Dale detainee who escaped his cell, and was subsequently sprayed with CS gas, in ''Binsaris v. Northern Territory'',<ref>''Binsaris v. Northern Territory,'' [http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2020/22.html?context=1;query=binsaris;mask_path=au/cases/cth/HCA 2020 HCA 22] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#2_2_4__Binsaris_v__Northern_Territory__2020__HCA_22 §2.2.4]) at paras 1–2.</ref> was featured in this news story.<ref>{{Cite web|last=Bardon|first=Jane|date=20 November 2017|title=Don Dale detainee trying to turn his life around|url=https://www.youtube.com/watch?v=xEnf9kqhvG0|url-status=live|archive-url=|archive-date=|access-date=|website=YouTube}}</ref> {{YouTube|id=xEnf9kqhvG0|width=100%|height=125}}<br />
This news story came in the wake of footage being released on ABC's Four Corners program that revealed the horrific conditions of the detention facility and ultimately prompted a [https://www.royalcommission.gov.au/child-detention Royal Commission].<ref>{{Cite web|last=Burke|first=Liz|date=26 Jul 2016|title=ABC Four Corners reveals footage showing extent of alleged abuse of youths in the Northern Territory|url=https://www.dailytelegraph.com.au/news/national/abc-four-corners-reveals-footage-showing-extent-of-alleged-abuse-of-youths-in-the-northern-territory/news-story/a4280b966916b1867fd6f25853b4aec9|url-status=live|archive-url=|archive-date=|access-date=|website=The Daily Telegraph}}</ref><br />
|-<br />
! style="background-color:#FFF5FA" |''Battery in COVID-19''<br />
|-<br />
| In ''Mete v. Masouleh'', the BC Civil Resolution Tribunal considered several claims, including battery, and awarded the plaintiff $1000 as the evidence showed that it was "more likely than not" that the defendant spit on the plaintiff during a neighbourly dispute.<ref>''Mete v. Masouleh'', [https://www.canlii.org/en/bc/bccrt/doc/2023/2023bccrt515/2023bccrt515.html 2023 BCCRT 515 (CanLII)] at paras 41–48.</ref> As this incident occurred in June 2020, the tribunal noted took note of the fact that the plaintiff "was concerned about COVID-19 transmission given the ongoing pandemic at the time".<ref>''Mete v. Masouleh'', [https://www.canlii.org/en/bc/bccrt/doc/2023/2023bccrt515/2023bccrt515.html 2023 BCCRT 515 (CanLII)] at para 48.</ref><br />
|} <br />
In ''Scalera'', McLachlin J. averred that "the law of battery is based on protecting individuals’ right to personal autonomy."<ref name=":28" /> Harmful contact is that which invades the plaintiff's interest in the physical integrity of their body. In ''Cole v. Turner'', it was declared that "[t]he least touching of another in anger is a battery."<ref name=":1">''Cole v. Turner'' (1704), [http://www.commonlii.org/uk/cases/EngR/1738/238.pdf 90 ER 958].</ref> Offensive contact is that which violates social norms and invades the plaintiff's dignitary interest in their body. Examples given in ''Bettel v. Yim'', citing ''Fleming's Law of Torts'', include spitting in someone's face, cutting their hair or kissing them.<ref>''Bettel v. Yim,'' [https://www.canlii.org/en/on/onsc/doc/1978/1978canlii1580/1978canlii1580.html 1978 CanLII 1580 (ONSC)] at para 17.</ref><br />
<br />
Contact that is well-meaning may still amount to battery if done without the plaintiff's consent. A surgery or blood transfusion is presumptively a battery, and is only non-tortious where the patient has consented to it.<ref name=":0">{{Cite book|title=Canadian Tort Law in a Nutshell|last=Kerr|first=Margaret|publisher=Thomson Reuters|year=2019|isbn=|location=Toronto|pages=20}}</ref> It is presumptively a battery to vaccinate someone, although no liability will follow where the person being vaccinated (or if the person is a child, their parents) expressly consented to the procedure.<ref>''Toews v. Weisner,'' [https://www.canlii.org/en/bc/bcsc/doc/2001/2001bcsc15/2001bcsc15.html 2001 BCSC 15] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#6_3_1_2_Toews_v__Weisner__2001__BCSC_15 §6.3.1.2]) at paras 22-24.</ref> <br />
====Acceptable everyday conduct====<br />
''"If two or more meet in a narrow passage, and without any violence or design of harm, the one touches the other gently, it will be no battery."''<ref name=":1" /><br />
<br />
"Trivial" touching is not considered to amount to battery.<ref>''Mete v. Masouleh'', [https://www.canlii.org/en/bc/bccrt/doc/2023/2023bccrt515/2023bccrt515.html 2023 BCCRT 515 (CanLII)] at para 41.</ref> Physical contact that is a part of "ordinary life" is not actionable in tort because: <blockquote>Generally speaking, [[Sandbox:Torts/Consent|consent]] is a defence to battery; and most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact.<ref name=":9" /></blockquote>In ''Collins v. Wilcock'', Goff L.J. outlined some examples of such contact:<br />
*Jostling which is "inevitable" in a supermarket, a subway station or a busy street;<br />
*Taking hold of someones hand "in friendship" or slapping someone's back (within reason) at a party.<br />
*Touching a person for the purpose of engaging their attention, using only a degree of physical contact which is reasonably necessary in the circumstances.<ref name=":9">''Collins v. Wilcock,'' [https://archive.org/details/allenglandlawrep0003all_b4p0/page/374/mode/1up <nowiki>[1984] All ER 374</nowiki>] at para 13. </ref><br />
<br />
But contact that goes beyond the ordinary is not acceptable. For example, persistently touching someone or physically restraining them may still amount to battery.<ref>''Collins v. Wilcock,'' [https://archive.org/details/allenglandlawrep0003all_b4p0/page/374/mode/1up <nowiki>[1984] All ER 374</nowiki>] at para 14.</ref><br />
===Contact===<br />
Not all batteries involve physical contact between the defendant's and plaintiff's bodies. The intentional application of harmful gases or liquids to the plaintiff can amount to battery.<ref>''Binsaris v. Northern Territory,'' [http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2020/22.html?context=1;query=binsaris;mask_path=au/cases/cth/HCA 2020 HCA 22] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#2_2_4__Binsaris_v__Northern_Territory__2020__HCA_22 §2.2.4]) at para 23.</ref> In ''Binsaris v. Northern Territory'', the High Court of Australia found battery in the use of teargas on inmates by correctional staff.<ref>''Binsaris v. Northern Territory,'' [http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2020/22.html?context=1;query=binsaris;mask_path=au/cases/cth/HCA 2020 HCA 22] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#2_2_4__Binsaris_v__Northern_Territory__2020__HCA_22 §2.2.4]) at paras 49-50.</ref><br />
<br />
It has been suggested that a defendant who coerces a plaintiff to touch themselves in a harmful or offensive manner commits battery. In ''Farrell v. Attorney General of Canada'', the Ontario Superior Court considered it arguable that battery could be established in cases where correctional staff required inmates to touch their own bodies in order to conduct strip searches.<ref name=":7">''Farrell v. Attorney General of Canada,'' [https://www.canlii.org/en/on/onsc/doc/2023/2023onsc1474/2023onsc1474.html 2023 ONSC 1474] at paras 184–89.</ref><br />
==Assault==<br />
''"Assault is the intentional creation of the apprehension of imminent harmful or offensive contact. The tort of assault furnishes protection for the interest in freedom from fear of being physically interfered with. Damages are recoverable by someone who is made apprehensive of immediate physical contact, even though that contact never actually occurs."<ref name=":14">''Warman v. Grosvenor'', [https://www.canlii.org/en/on/onsc/doc/2008/2008canlii57728/2008canlii57728.html 2008 CanLII 57728] (ON SC) at para 58; ''McLean v. McLean'', [https://www.canlii.org/en/sk/skca/doc/2019/2019skca15/2019skca15.html?resultIndex=1 2019 SKCA 15] at para 59, citing Allen M Linden, ''et al'', ''Canadian Tort Law'', 10th ed (Toronto: LexisNexis, 2015) at §2.42.</ref>''<br />
<br />
''"[A] tortious assault involves intentionally causing another to fear imminent contact of a harmful or offensive nature."<ref name=":13" />''<br />
<br />
''It constitutes an assault to cause in the plaintiff "a reasonable apprehension of imminent offensive contact."''<ref>''M.(K.) v. M.(H.)'', [https://www.canlii.org/en/ca/scc/doc/1992/1992canlii31/1992canlii31.html <nowiki>[1992] 3 SCR 6 (SCC)</nowiki>]; see ''Deluca v. Bucciarelli'', [https://www.canlii.org/en/on/onca/doc/2022/2022onca774/2022onca774.html 2022 ONCA 774] at paras. 21-24. </ref><br />
{| class="wikitable" style="width:40%"<br />
! style="background-color:#E0CEF2" |Elements of assault<br />
|-<br />
|1. The defendant intentionally causes in the plaintiff<br />
|-<br />
|2. a reasonable<br />
|-<br />
|3. apprehension/fear<br />
|-<br />
| 4. of imminent<br />
|-<br />
|5. harmful or offensive<br />
|-<br />
|6. contact/touching of their body.<br />
|}<br />
Examples of assault raised in the classic case of ''Tuberville v. Savage'' include holding up one's fist against another as if about to strike; and actually striking at another person, but missing them.<ref name=":5">''Tuberville v. Savage,'' [https://www.bailii.org/ew/cases/EWHC/KB/1669/J25.html <nowiki>[1669] EWHC KB J25 (BAILII)</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#2_3_1__Tuberville_v__Savage__1669__EWHC_KB_J25 §2.3.1]).</ref> <br />
===Apprehension===<br />
{| class="wikitable" style="float:right;margin-left;10px;width:25%"<br />
! style="background-color:#CEE0F2" |''Tuberville v. Savage''<br />
|-<br />
|This [https://www.quimbee.com/ Quimbee] video outlines the background of the case.<ref name=":22" />{{YouTube|id=6yhkqA4XjLI|width=100%|height=125}}<br />
|}<br />
[[File:Assize Courts, Manchester.jpg|thumb|The [https://en.wikipedia.org/wiki/Manchester_Assize_Courts Assize Courts of Manchester].|alt=Photo of the Assize Courts of Manchester.]]<br />
In order for there to be an assault, the alleged wrongdoer must lead the plaintiff to apprehend a threat of physical violence.''<ref name=":14" />'' In ''Tuberville v. Savage'', the court found that no assault had occurred because the words that were claimed to be tortious were conditional on the judges not being in town.<ref name=":5" /> Specifically, the statement in question was "If it were not [https://en.wikipedia.org/wiki/Assizes assize-time], I would not take such language from you."<ref name=":5" /> Properly understood, the statement suggested that Tuberville would not strike at Savage because the judges ''were'' in town, although he would not have exercised such restraint had the circumstances been different. Thus, there was no assault.<ref name=":5" /><br />
<br />
=== Reasonableness ===<br />
The plaintiff's apprehension must be reasonable such that the defendant's conduct would cause an ordinary person to fear violence. The British Columbia Supreme Court in ''Mahal v. Young'' stated:<blockquote>The actual ability to execute a threat need not be present, as long as it appears to a reasonable plaintiff that it is there. If a person is reasonably apprehensive of imminent physical contact, even though he is in no real danger, he may still recover for assult [sic].<ref name=":17">''Mahal v. Young'', [1986] BCJ No 2060 citing Allen Linden, ''Canadian Tort Law'', 3rd ed (Toronto: Butterworths, 1982) at 41.</ref></blockquote><br />
===Imminence===<br />
<br />
There is some debate in the case law as to the scope of imminence as an element of assault, although the Ontario Court of Appeal maintains that "[i]mminence is a critical component of the tort of assault."<ref>''Barker v. Barker'', [https://www.canlii.org/en/on/onca/doc/2022/2022onca567/2022onca567.html 2022 ONCA 567] at para 171; see ''Alberta Health Services v. Johnston'', [https://www.canlii.org/en/ab/abkb/doc/2023/2023abkb209/2023abkb209.html 2023 ABKB 209] at para 76. </ref> What does it mean for a plaintiff to fear immediate or imminent harm? Much turns on the circumstances. An attempted battery may be imminent even if it is stopped before physical contact can actually occur.<ref name=":6" /> In ''Stephens v. Myers'', even though the defendant was stopped before he could actually strike the plaintiff, the court found that all elements of the tort of assault were met.<ref name=":6">''Stephens v. Myers,'' [https://www.bailii.org/ew/cases/EWHC/KB/1830/J37.html <nowiki>[1830] EWHC KB J37 (BAILII)</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#2_3_2__Stephens_v__Myers__1830__EWHC_KB_J37 §2.3.2]).</ref> The court noted that it was crucial that the defendant possessed "the means of carrying the threat into effect."<ref name=":6" /><br />
<br />
Quoting Linden et al, the Ontario Court of Appeal in ''Barker v. Barker'' noted that "[t]o threaten to do harm to someone at some future time, because this is not as likely to spur retaliation, does not amount to an assault, although it may give rise to other tortious or even criminal responsibility."<ref>''Barker v. Barker'', [https://www.canlii.org/en/on/onca/doc/2022/2022onca567/2022onca567.html?searchUrlHash=AAAAAQAHYXNzYXVsdAAAAAAB&resultIndex=5 2022 ONCA 567] at para 171, citing Allen M Linden, et al, ''Canadian Tort Law'', 11th ed (Toronto: LexisNexis, 2018) at §2.42.</ref> However, in ''Tam v. Chan'', the Hong Kong Court of First Instance stated that "[w]hether the act complained of by the plaintiff constitutes an assault must depend on all the circumstances including the nature of the act and the manner in which it was made".<ref>''Pong Seong v. Chan,'' [https://www.hklii.hk/cgi-bin/sinodisp/eng/hk/cases/hkcfi/2014/1480.html <nowiki>[2014] HKCFI 1480</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#2_3_3__Pong_Seong_v__Chan__2014__HKCFI_1480 §2.3.3]) at para 65.</ref> The court then went on to consider case law which stated:<blockquote>Some threats are not capable of arousing apprehension of violence in the mind of a reasonable person unless there is an immediate prospect of the threat being carried out. Others, I believe, can create the apprehension even if it is made clear that the violence may occur in the future, at times unspecified and uncertain. Being able to immediately carry out the threat is but one way of creating the fear of apprehension, but not the only way. There are other ways, more subtle and perhaps more effective.<ref>''Barton v. Armstrong,'' [1969] 2 NSWR 451 at 455.</ref></blockquote><br />
<br />
==False imprisonment==<br />
''"The plaintiff must prove three elements to establish the tort of false imprisonment. He or she must have been totally deprived of liberty; this deprivation must have been against his or her will; and it must be caused by the defendant. The onus then shifts to the defendant to justify the detention, based on [[Sandbox:Torts/Legal authority|legal authority]] under common law or statute."''<ref name=":21">''Kovacs v. Ontario Jockey Club'', [https://www.canlii.org/en/on/onsc/doc/1995/1995canlii7397/1995canlii7397.html?resultIndex=1 1995 CanLII 7397 (ONSC)] at para 45.</ref><br />
<br />
''"Unlawful imprisonment, commonly referred to in textbook commentary as false imprisonment, is a tort of strict liability. Its elements are confinement of another within fixed boundaries, and intention to confine. Loss is not an element of the tort and so is not a prerequisite to a remedy of damages."<ref>''Ewert v. Canada (AG)'', [https://www.canlii.org/en/bc/bcca/doc/2022/2022bcca131/2022bcca131.html 2022 BCCA 131] at para 44</ref>''<br />
<br />
''"[F]alse arrest ... is the intentional and total confinement of a person against his will without lawful justification."<ref>''Jensen v. Stemmer et al.'', [https://www.canlii.org/en/mb/mbca/doc/2007/2007mbca42/2007mbca42.html 2007 MBCA 42] at para 65.</ref>''<br />
{| class="wikitable" style="width:55%"<br />
! style="background-color:#E0CEF2" | Elements of false imprisonment<br />
|-<br />
|1. The defendant intentionally and<br />
|-<br />
|2. totally confines the plaintiff<br />
|-<br />
|3. against the plaintiff's will.<br />
|}<br />
{| class="wikitable" style="float:right;margin-left;10px;width:30%"<br />
! style="background-color:#F2CEE0" |In the news<br />
|-<br />
! style="background-color:#FFF5FA" |''Judge held liable for falsely imprisoning self-represented litigant''<br />
|-<br />
|In 2023, an inferior court judge in Australia was held liable for false imprisonment for unlawfully ordering a self-represented litigant to 12 months' imprisonment for contempt of court.<ref>''Stradford (a pseudonym) v. Judge Vasta'', [https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2023/2023fca1020 <nowiki>[2023] FCA 1020</nowiki>].</ref> One of the primary issues in the case was whether or not the Judge was "immune from any liability because he made the imprisonment order in his capacity as a judge."<ref>''Stradford (a pseudonym) v. Judge Vasta'', [https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2023/2023fca1020 <nowiki>[2023] FCA 1020</nowiki>] at para 12.</ref> The judgment was overturned on appeal on the basis of judicial immunity.<ref>''Queensland v Stradford'' [https://eresources.hcourt.gov.au/showCase/2025/HCA/3 <nowiki>[2025] HCA 3</nowiki>]. </ref> <br />
This episode of [https://www.abc.net.au/listen/programs/lawreport/judge-liable-wrongful-imprisonment-palawa-no/102739694 The Law Report] discusses the case with the plaintiff's lawyer, [https://www.kencush.com.au/team Sam Tierney].<ref>{{Cite web|last=Law Report|date=5 September 2023|title=Judge liable for wrongful imprisonment and a Palawa lawyer's case for No|url=https://www.abc.net.au/listen/programs/lawreport/judge-liable-wrongful-imprisonment-palawa-no/102739694|url-status=live|website=ABC News}}</ref>{{#widget:Iframe|url=https://www.listennotes.com/podcasts/law-report/judge-liable-for-wrongful-zavd20G1XfT/embed/|width=100%|height=100|border=0}}<br />
<br />
The case was reported in The Guardian article, "[https://www.theguardian.com/australia-news/2023/aug/30/man-jailed-during-routine-property-dispute-wins-300000-after-suing-judge-over-fundamental-errors Man jailed during routine property dispute wins $300,000 after suing judge over ‘fundamental errors’]".<ref>{{Cite news|url=https://www.theguardian.com/australia-news/2023/aug/30/man-jailed-during-routine-property-dispute-wins-300000-after-suing-judge-over-fundamental-errors|title=Man jailed during routine property dispute wins $300,000 after suing judge over ‘fundamental errors’|last=Knaus|first=Christopher|date=30 August 2023|work=The Guardian|last2=Bucci|first2=Nino}}</ref><br />
|}<br />
===Total confinement / deprivation of liberty===<br />
False imprisonment (or false arrest) entails that the plaintiff was "''totally'' deprived of liberty."<ref name=":21" />''<ref>See ''Huang v. Silvercorp Metals Inc.'', [https://www.canlii.org/en/bc/bcca/doc/2016/2016bcca100/2016bcca100.html 2016 BCCA 100] at para 23.</ref>'' Merely preventing a plaintiff from entering a space or traveling in a particular direction is not false imprisonment. This was demonstrated in ''Bird v. Jones'', where a portion of a public highway was closed off for a paid boat race.<ref>''Bird v. Jones,'' [https://www.bailii.org/ew/cases/EWHC/QB/1845/J64.html <nowiki>[1845] EWHC QB J64 (BAILII)</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#2_4_1__Bird_v__Jones__1845__EWHC_QB_J64 §2.4.1]) at para 3.</ref> The plaintiff climbed over the fence in order to get to his destination, but two policemen prevented the plaintiff from passing through. The plaintiff was allowed to return the same way he came, and no actual force or restraint was used on the plaintiff. Since the plaintiff wasn't totally confined, there was no false imprisonment.<br />
<br />
=== Psychological confinement ===<br />
Confinement need not entail physical restraint.<ref>''Chaytor v. London, New York and Paris Association of Fashion Ltd,'' [https://www.canlii.org/t/gwdw2 1961 CanLII 404 (NLSC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#2_4_3__Chaytor_v__London__New_York_and_Pof_Fashion_Ltd__1961__CanLII_404__NL_SC_ §2.4.3]) at para 38.</ref> For example, in ''Chaytor v. London, New York and Paris Association of Fashion Ltd'', the plaintiffs, who were accused of wrongdoing in a retail store, felt psychological pressure to remain in the store after the police were called.<ref>''Chaytor v. London, New York and Paris Association of Fashion Ltd,'' [https://www.canlii.org/t/gwdw2 1961 CanLII 404 (NLSC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#2_4_3__Chaytor_v__London__New_York_and_Pof_Fashion_Ltd__1961__CanLII_404__NL_SC_ §2.4.3]) at paras 28. 31.</ref> The court found that "what one might call a psychological type of imprisonment" could amount to the tort of false imprisonment.<ref>''Chaytor v. London, New York and Paris Association of Fashion Ltd,'' [https://www.canlii.org/t/gwdw2 1961 CanLII 404 (NLSC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#2_4_3__Chaytor_v__London__New_York_and_Pof_Fashion_Ltd__1961__CanLII_404__NL_SC_ §2.4.3]) at para 31.</ref><br />
<br />
===Intention to confine===<br />
The relevant intention is to confine the plaintiff, regardless of whether the defendant believed the confinement to be lawful. In ''R v. Brockhill Prison Governor'', the respondent was serving a lawfully-imposed prison sentence for which she was entitled to a reduction in actual time served. Due to a mistake in the calculation of her sentence she spent longer in prison than she ought to have.<ref>''R v. Brockhill Prison Governor, ex p Evans (No. 2),'' [https://www.bailii.org/uk/cases/UKHL/2000/48.html <nowiki>[2000] UKHL 48 (BAILII)</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#2_4_5__R_v__Brockhill_Prison_Governor__ex_p_Evans__No__2___2000__UKHL_48 §2.4.5]) at paras 2-3.</ref> The elements of the tort of false imprisonment were found to be met, since the Governor of the prison had meant to confine the respondent during that period, even though the Governor had acted in good faith.<ref name=":25" /> Mere belief that a detention is lawful is not a justification in the event the detention is shown to be unlawful.<ref name=":25">''R v. Brockhill Prison Governor, ex p Evans (No. 2),'' [https://www.bailii.org/uk/cases/UKHL/2000/48.html <nowiki>[2000] UKHL 48 (BAILII)</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#2_4_5__R_v__Brockhill_Prison_Governor__ex_p_Evans__No__2___2000__UKHL_48 §2.4.5]) at paras 4-8.</ref><br />
<br />
== Criminal trespass to the person ==<br />
Actions that attract liability in the torts of battery, assault and false imprisonment may also be criminal offences that can be prosecuted by the state.<ref name=":11" /><ref name=":12" /> The elements of offences set out in the Criminal Code overlap with, but are not necessarily coterminous with, the elements elucidated in the common law of tort. The [http://criminalnotebook.ca/index.php/Main_Page Criminal Law Notebook] discusses the crimes of [http://criminalnotebook.ca/index.php/Common_Assault_(Offence) assault] and [http://criminalnotebook.ca/index.php?title=Kidnapping_and_Unlawful_Confinement_(Offence)&mobileaction=toggle_view_desktop forcible confinement] in more detail. <br />
{| class="wikitable mw-collapsible mw-collapsed" style="width: 100%"<br />
! style="background-color:#CEF2E0" |Assault and battery in the ''Criminal Code of Canada''<br />
|-<br />
|''[https://laws-lois.justice.gc.ca/eng/acts/c-46/section-265.html Criminal Code]'', RSC 1985, c. C-46 s. 265(1).<ref name=":11">''[https://laws-lois.justice.gc.ca/eng/acts/c-46/section-265.html Criminal Code]'', RSC 1985, c. C-46 s. 265(1)</ref><br />
|-<br />
|'''265 (1)''' A person commits an assault when<br />
<br />
: (a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;<br />
<br />
:(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or<br />
<br />
:(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.<br />
|}<br />
{| class="wikitable mw-collapsible mw-collapsed" style="width: 100%"<br />
! style="background-color:#CEF2E0" |Forcible confinement in the ''Criminal Code of Canada''<br />
|-<br />
|''[https://laws-lois.justice.gc.ca/eng/acts/c-46/section-279.html Criminal Code]'', RSC 1985, c. C-46 s. 279(2).<ref name=":12">''[https://laws-lois.justice.gc.ca/eng/acts/c-46/section-279.html Criminal Code]'', RSC 1985, c. C-46 s. 279(2)</ref><br />
|-<br />
|'''279 (2)''' Every one who, without lawful authority, confines, imprisons or forcibly seizes another person is guilty of<br />
<br />
:(a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or<br />
<br />
:(b) an offence punishable on summary conviction.<br />
|}<br />
<br />
==Discussion questions==<br />
===Battery and assault=== <br />
<br />
*In ''Binsaris v. Northern Territory,'' the concurring opinion of Gageler J. held that though it was lawful and reasonable for the correctional officers to utilize teargas when trying to subdue Jake Roper, exposure of other inmates to the teargas nevertheless amounted to battery. Why was the apparent lawfulness and reasonableness of the officers' actions not a good defence to the tortious claims?<br />
*In light of ''Kohli v. Manchanda'',<ref>''Kohli v. Manchanda,'' [http://www.liiofindia.org/in/cases/cen/INSC/2008/42.html <nowiki>[2008] INSC 42</nowiki>] ('''[https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Kohli_v._Manchanda §2.2.2]''').</ref> consider the lawsuit that has been brought against Dr. Andrew Kotaska for performing a sterilization surgery on an Inuit woman from Tuktoyaktuk, NWT, without her consent.<ref>{{Cite news|url=https://ca.style.yahoo.com/tuktoyaktuk-woman-files-6m-lawsuit-110000167.html|title=Tuktoyaktuk woman files $6M lawsuit claiming N.W.T. doctor sterilized her without consent|date=March 10, 2022|work=CBC}}</ref> The doctor believed he was acting in his patient's best interests. What would be the basis of the plaintiff's civil claim and of the defendant's defence? What is the relevance of the doctor's [[Sandbox:Torts/Apologies|apology]]?<ref>{{Cite news|url=https://cabinradio.ca/151052/news/health/doctor-who-sterilized-woman-without-consent-apologizes-in-statement/|title=Doctor who sterilized woman without consent apologizes in statement|date=September 7, 2023|work=Cabin Radio}}</ref> What is the significance of the RCMP's decision not to investigate or prosecute the doctor?<ref>{{Cite news|url=https://abcnews.go.com/Health/wireStory/canadian-police-investigate-doctor-sterilizing-indigenous-woman-103528539|title=Canadian police won't investigate doctor for sterilizing Indigenous woman|date=September 27, 2023|work=ABC News}}</ref> A report of the Canadian Senate into ''Forced and Coerced Sterilization of Persons in Canada'' has found that "the horrific practice of forced and coerced sterilization continues to occur, underreported, and disproportionately affecting Indigenous women and other vulnerable and marginalized groups in Canada."<ref>{{Cite book|url=https://sencanada.ca/en/info-page/parl-43-2/ridr-forced-and-coerced-sterilization-of-persons-in-canada/|title=Forced and Coerced Sterilization of Persons in Canada|last=Senate Committee on Human Rights|year=2021|pages=8}}</ref> Class actions are currently being pursued. What role, if any, might tort law play in helping this country "to fully reckon with its troubled colonial past" and to "put a stop to a decades-long practice that is considered genocide"?<ref>{{Cite news|url=https://www.ctvnews.ca/health/canada-s-indigenous-women-forcibly-sterilized-decades-after-other-rich-countries-stopped-1.6476708|title=Canada's Indigenous women forcibly sterilized decades after other rich countries stopped|date=July 12, 2023|work=CTV News}}</ref><br />
<br />
===False imprisonment=== <br />
<br />
*Lord Denman, writing the dissent for ''Bird'' ''v. Jones'', noted that although the plaintiff still had the option of going back (i.e., not passing onwards), this was irrelevant to the question of whether the plaintiff was falsely imprisoned. Do you agree? How have the courts in other cases addressed this issue?<br />
*Consider ''Stradford v. Judge Vasta''.<ref>''Stradford v. Judge Vasta,'' [https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2023/2023fca1020 <nowiki>[2023] FCA 1020</nowiki>].</ref> How does this case engage [[Sandbox:Torts#Equality of all under ordinary law|the Diceyan principle of equality under ordinary law]]?<br />
*Does the law enforcement tactic of "[https://en.wikipedia.org/wiki/Kettling kettling]"<ref>{{Cite news|url=https://www.cbc.ca/news/canada/crowd-control-what-is-kettling-1.1133313|title=Crowd control: What is kettling?|date=May 24, 2012|work=CBC News}}</ref> protestors amount to false imprisonment? Consider the judgment of the English Court of Appeal in ''Walker v. Commissioner of the Police of the Metropolis'' (discussing the kettling of protestors in Oxford Circus on May Day 2001),<ref>''Walker v. Commissioner of the Police of the Metropolis (Rev 1),'' [https://www.bailii.org/ew/cases/EWCA/Civ/2014/897.html#para25 <nowiki>[2014] EWCA Civ 897</nowiki>] at para 25. </ref> as well as the ABC News article, "[https://abcnews.go.com/US/new-york-city-pay-record-settlement-kettling-george/story?id=97556607 New York City to pay record settlement for 'kettling' George Floyd protesters]."<br />
<br />
===Criminal and civil liability=== <br />
*Why might individuals choose to pursue an action in tort rather than criminal law (or vice versa)? Consider the CBC news stories [https://www.cbc.ca/news/canada/british-columbia/civil-lawsuit-criminal-case-intimate-partner-violence-1.6325951 "Woman assaulted by husband awarded $800K in civil lawsuit. He received an absolute discharge in criminal case"]<ref>{{Cite news|url=https://www.cbc.ca/news/canada/british-columbia/civil-lawsuit-criminal-case-intimate-partner-violence-1.6325951|title=Woman assaulted by husband awarded $800K in civil lawsuit. He received an absolute discharge in criminal case|last=Uguen-Csenge|first=Eva|date=28 January 2022|work=CBC News|access-date=}}</ref> and [https://www.cbc.ca/news/canada/albert-schultz-soulpepper-civil-lawsuit-1.4472933 "'Her voice is heard': Why some accusers pursue civil rather than criminal justice in harassment cases"].<ref>{{Cite news|url=https://www.cbc.ca/news/canada/albert-schultz-soulpepper-civil-lawsuit-1.4472933|title='Her voice is heard': Why some accusers pursue civil rather than criminal justice in harassment cases|last=Gollom|first=Mark|date=5 January 2018|work=CBC News|access-date=}}</ref><br />
<br />
==Quiz==<br />
{{H5P|id=2297|width=|height=|responsive=yes}}<br />
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{{DISPLAYTITLE:<span style="position: absolute; clip: rect(1px 1px 1px 1px); clip: rect(1px, 1px, 1px, 1px);">{{FULLPAGENAME}}</span>}}<br />
<references /></div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Documentation:Torts/Negligence_Mental_injury&diff=858777Documentation:Torts/Negligence Mental injury2025-04-08T14:23:31Z<p>SamuelBeswick: /* Learning of traumatic events */</p>
<hr />
<div>{{Infobox Torts }}<br />
<span style="font-size:200%;">Negligent infliction of mental injury</span><br>It is now clearly established in Canadian common law that mental injury is a recoverable type of [[Sandbox:Torts/Damage|damage]].<ref>''Mustapha v. Culligan of Canada Ltd.'', [https://canlii.ca/t/1wz6f 2008 SCC 27] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Mustapha_v._Culligan §17.1.2]) at paras 8.</ref> The law tends not to recognize mere psychological upset, but rather requires the psychological disturbance to rise to a level that is serious and prolonged, extending beyond ordinary anxieties, annoyances, and fears that people may encounter in every day society.<ref>''Mustapha v. Culligan of Canada Ltd.'', [https://canlii.ca/t/1wz6f 2008 SCC 27] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Mustapha_v._Culligan §17.1.2]) at para 9.</ref> <br />
==The historical development of negligent infliction of mental injury==<br />
[[File:Depression in women.JPG|thumb|left|alt=A woman sitting on a couch with her head in her hands.]]<br />
The common law's early view of negligently inflicted mental injury was "virtually programmed to entrench primitive suspicions and prejudices about 'invisible', intangible harm".<ref>{{Cite book|title=Causing psychiatric and emotional harm: reshaping the boundaries of legal liability|last=Teff|first=Harvey|publisher=Bloomsbury Publishing|year=2008|pages=40}}</ref> Mental injury was described as "a product of the imagination",<ref>''Miner v. C. P. R.'', [https://canlii.ca/t/j878b 1910 CanLII 340 (ABCA)] at 478.</ref> and even in the last century, courts were reluctant to accept it as a form of compensable [[Sandbox:Torts/Damage|damage]] unless accompanied by physical injury.<ref>''Saadati v. Moorhead'', [https://canlii.ca/t/h42pw 2017 SCC 28] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Saadati_v._Moorhead §19.2.1.3]) at para 14 citing Belanger-Hardy, Louise (2013). [https://canlii.ca/t/sx56 "Reconsidering the 'Recognizable Psychiatric Illness' Requirement in Canadian Negligence Law"]. ''Queen's Law Journal''. '''38'''(2): 599–600.</ref><br />
<br />
By the middle of the 20th century, Canadian courts became somewhat more open towards recognizing mental injury, though recovery was still premised on certain conditions influenced by English law, such as requiring claimants to have had, at the material time, a reasonable fear of physical injury.<ref>''Saadati v. Moorhead'', [https://canlii.ca/t/h42pw 2017 SCC 28] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Saadati_v._Moorhead §19.2.1.3]) at para 15.</ref><br />
<br />
In the 1982 English case ''McLoughlin v. O'Brien'', Lord Wilberforce raised three conditions that might limit a plaintiff's ability to recover for mental injury: relational proximity, geographical proximity, and temporal proximity.<ref>''McLoughlin v O'Brian'', [https://www.bailii.org/uk/cases/UKHL/1982/3.html <nowiki>[1982] UKHL 3 (BAILII)</nowiki>] at 5.</ref> While Canadian courts did consider this approach to some extent,<ref>''Beecham v. Hughes'', [https://canlii.ca/t/20xhf 1988 CanLII 2839 (BCCA)] at para 133.</ref> it was later rejected in the seminal case ''Saadati v. Moorhead''.<ref>''Saadati v. Moorhead'', [https://canlii.ca/t/h42pw 2017 SCC 28] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Saadati_v._Moorhead §19.2.1.3]) at para 24.</ref> <br />
<br />
In ''Saadati'', the Supreme Court of Canada held that it is unnecessary to analyze mental injury claims differently from physical injury claims. Instead, it is sufficient to require a claim for mental injury to satisfy the regular elements of negligence: [[Sandbox:Torts/Duty of care|a duty of care]], a [[Sandbox:Torts/Breach of duty of care|breach]], [[Sandbox:Torts/Damage|damage]], and [[Sandbox:Torts/Causation in fact|factual]] and [[Sandbox:Torts/Remoteness in law|legal]] causation.<ref>''Saadati v. Moorhead'', [https://canlii.ca/t/h42pw 2017 SCC 28] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Saadati_v._Moorhead §19.2.1.3]) at paras 19–22, 24.</ref> The Court also clarified that a plaintiff need not prove a recognized psychiatric illness so long as the level of psychological disturbance is ''serious and prolonged'' beyond the types of fears and annoyances expected in ordinary society.<ref name=":3">''Saadati v. Moorhead'', [https://canlii.ca/t/h42pw 2017 SCC 28] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Saadati_v._Moorhead §19.2.1.3]) at para 37.</ref> Furthermore, the Court made a point of repudiating the stigma and skepticism attached to mental injury, stating that tort law "should not seek to perpetuate [misguided prejudices]."<ref>''Saadati v. Moorhead'', [https://canlii.ca/t/h42pw 2017 SCC 28] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Saadati_v._Moorhead §19.2.1.3]) at para 21.</ref><br />
<br />
== Potential causes of mental injury ==<br />
<br />
=== Close-call traumatic events ===<br />
[[File:Culligan Delivery Truck Dundee Michigan.JPG|thumb|left|alt=White delivery truck with Culligan Bottled Water written on the side, along with an image of a bottle of water.]]<br />
Mental injury arising from traumatic events without immediate physical injury was once unrecoverable because it was considered not foreseeably flowing from the defendant's negligent act.<ref>''Victorian Railway Commissioners v. James Coultas and Mary Coultas (Victoria)'', [https://www.bailii.org/uk/cases/UKPC/1888/1888_3.html <nowiki>[1888] UKPC 3</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Victorian_Railways_v. §19.2.1.1]) at 3-4. </ref><ref>''Mitchell v. Rochester Railway Co.'', [https://casetext.com/case/mitchell-v-rochester-railway-co 151 NY 107] (NY CA 1896) ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Mitchell_v._Rochester §19.2.1.2]) at paras 6–7.</ref> Canadian law today, however, allows plaintiffs to recover for mental injury itself. <br />
<br />
In ''Saadati v. Moorhead'', the plaintiff's personality change and cognitive difficulties caused by a motor vehicle accident were sufficient evidence of damage.<ref>''Saadati v. Moorhead'', [https://canlii.ca/t/h42pw 2017 SCC 28] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Saadati_v._Moorhead §19.2.1.3]) at paras 39–40.</ref> In ''Mustapha v. Culligan of Canada Ltd.'', the plaintiff's major depressive disorder, anxiety, and phobia, which were caused by seeing a dead fly in his bottled drinking water, established that the plaintiff had sustained actionable damage.<ref>''Mustapha v. Culligan of Canada Ltd.'', [https://canlii.ca/t/1wz6f 2008 SCC 27] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Mustapha_v._Culligan §17.1.2]) at para 10.</ref><br />
<br />
However, the issue of [[Sandbox:Torts/Remoteness in law|remoteness in law]] still remains and may be a significant barrier to claims of mental injury from traumatic events. Despite holding that the plaintiff had sustained damage in the form of mental injury, the Supreme Court in ''Mustapha'' somewhat controversially found the injury too remote in law to support a claim in negligence because there was no evidence that it was reasonably foreseeable that a person of ordinary fortitude would have suffered mental injury.<ref>''Mustapha v. Culligan of Canada Ltd.'', [https://canlii.ca/t/1wz6f 2008 SCC 27] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Mustapha_v._Culligan §17.1.2]) at paras 12–18.</ref> <br />
<br />
=== Witnessing traumatic events ===<br />
Witnesses to traumatic events have been described in English cases as "secondary victims": those who witnessed injury caused to others but, unlike primary victims, were not directly involved in the incident.<ref>''Saadati v. Moorhead'', [https://canlii.ca/t/h42pw 2017 SCC 28] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Saadati_v._Moorhead §19.2.1.3]) at para 16.</ref> However, the Supreme Court of Canada has not adopted the primary/secondary victim distinction.<ref>''Saadati v. Moorhead'', [https://canlii.ca/t/h42pw 2017 SCC 28] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Saadati_v._Moorhead §19.2.1.3]) at para 19.</ref> The question that judges try to address instead is whether the plaintiff has proved the regular elements of negligence.<ref name=":0">''Marcena v. Thomson'', [https://canlii.ca/t/j1tsh 2019 BCSC 1287] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Marcena_v._Thomson_1 §19.2.2.2]).</ref> In negligence cases involving witnesses to traumatic events, analyzing the mental injury's remoteness in law may be of particular focus in the analysis.<ref>''Marcena v. Thomson'', [https://canlii.ca/t/j1tsh 2019 BCSC 1287] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Marcena_v._Thomson_1 §19.2.2.2]) at paras 68–75.</ref> The plaintiff must show it was reasonably foreseeable that the negligent act could cause psychological harm to a witness.<ref name=":1" /> <br />
<br />
In ''Marcena v. Thomson'', for example, a plaintiff suffered traumatic psychological injury after witnessing his wife struck by a vehicle.<ref name=":0" /> The British Columbia Supreme Court held that "[a] reasonable person would have foreseen that striking a pedestrian with a motorcycle could cause traumatic psychological injury to a close family member who witnessed the accident."<ref name=":1">''Marcena v. Thomson'', [https://canlii.ca/t/j1tsh 2019 BCSC 1287] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Marcena_v._Thomson_1 §19.2.2.2]) at paras 74–75. </ref> <br />
<br />
=== Learning of traumatic events ===<br />
{| class="wikitable" style="float:right;margin-left;10px;width:30%"<br />
! style="background-color:#CEE0F2" |The Hillsborough disaster<br />
|-<br />
|[[File:Hillsborough Stadium in 1991 - geograph.org.uk - 2807213.jpg|alt=A photo of a football match, capturing the green field and several players in jerseys.|thumb|229x229px|Hillsborough Stadium in 1991, two years after the disaster. |center]]This [https://watchdocumentaries.com/hillsborough/ documentary] discusses the events of the [https://en.wikipedia.org/wiki/Hillsborough_disaster Hillsborough disaster],<ref>{{Cite web|last=30 for 30: Soccer Stories|date=8 May 2016|title=Hillsborough|url=https://watchdocumentaries.com/hillsborough/|url-status=live|website=WatchDocumentaries}}</ref> a sporting match that through overcrowding resulted in the deaths of 96 spectators and injury of 450.<ref>{{Cite web|last=Tikkanen|first=Amy|date=8 April 2024|title=Hillsborough disaster|url=https://www.britannica.com/event/Hillsborough-disaster|url-status=live|website=Britannica}}</ref><ref>{{Cite news|url=https://www.theguardian.com/football/2016/apr/26/hillsborough-disaster-deadly-mistakes-and-lies-that-lasted-decades|title=Hillsborough disaster: deadly mistakes and lies that lasted decades|last=Conn|first=David|date=2016|work=The Guardian}}</ref> Afterwards, family members of the deceased brought [https://en.wikipedia.org/wiki/Alcock_v_Chief_Constable_of_South_Yorkshire_Police claims for psychiatric injury] suffered from viewing the disaster.<ref>''Alcock v. Chief Constable of South Yorkshire'', [https://www.bailii.org/uk/cases/UKHL/1991/5.html <nowiki>[1991] UKHL 5 (BAILII)</nowiki>].</ref><br />
|}<br />
For 200 years, the common law was of the position that a person could not bring a claim for losses resulting from the death of a family member.<ref>''Baker v. Bolton (1808)'', 170 ER 1033.</ref> This was the view despite the fact that a person could sue for losses resulting from a family members' injuries.<ref>''Ferraiuolo v. Olson'', [https://canlii.ca/t/1hz9z 2004 ABCA 281] at paras 19–30.</ref> Additionally, while courts sometimes permitted recovery for those who witnessed bodily injury or death, they refused for some time to allow plaintiffs to recover based on the mere learning of events.<ref>''Snowball v. Ornge'', [https://canlii.ca/t/h53fq 2017 ONSC 4601] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Snowball_v._Ornge §19.2.3.2]) at para 16. </ref><br />
<br />
The law has undergone development in this regard. In ''Snowball v. Ornge'', the Ontario Supreme Court held that the learning of a family member's death resulting in mental injury may be grounds for a valid claim in negligence.<ref name=":2">''Snowball v. Ornge'', [https://canlii.ca/t/h53fq 2017 ONSC 4601] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Snowball_v._Ornge §19.2.3.2]) at para 21. </ref> Following ''Saadati'', the Court further emphasized that the outcome of such a claim will still depend on the establishment of the ordinary elements of a negligence action.<ref name=":2" /><br />
<br />
Furthermore, while Ontario has not gone so far as to legislatively allow recovery for mental anguish resulting from the death of a family member by negligence, the ''Family Law Act'' does permit recovery for loss of guidance, care, and companionship.<ref>''Snowball v. Ornge'', [https://canlii.ca/t/h53fq 2017 ONSC 4601] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Snowball_v._Ornge §19.2.3.2]) at para 15.</ref><br />
<br />
{| class="wikitable mw-collapsible mw-collapsed" style="width: 65%"<br />
! style="background-color:#CEF2E0" |Legislation<br />
|-<br />
|'''''[https://canlii.ca/t/56763 Family Law Act]'', RSO 1990, c F.3, s 61'''.<ref>''[https://canlii.ca/t/56763 Family Law Act]'', RSO 1990, c F.3, ss 61(1), 61(2).</ref><br />
|-<br />
|'''61'''(1) If a person is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages, or would have been entitled if not killed, the spouse, as defined in Part III (Support Obligations), children, grandchildren, parents, grandparents, brothers and sisters of the person are entitled to recover their pecuniary loss resulting from the injury or death from the person from whom the person injured or killed is entitled to recover or would have been entitled if not killed, and to maintain an action for the purpose in a court of competent jurisdiction. <br />
'''Damages in case of injury'''<br />
<br />
(2) The damages recoverable in a claim under subsection (1) may include, ***<br />
<br />
(e) an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person if the injury or death had not occurred. R.S.O. 1990, c. F.3, s. 61 (2).<br />
|}<br />
==Case law after ''Saadati v. Moorhead''==<br />
[[File:Heparin 1.jpg|alt=A small glass vial of medical labelled "heparin" next to a syringe.|thumb|Following his surgery, Bothwell was given the drug Heparin instead of Voluven. Heparin is known to cause severe bleeding.<ref>''Bothwell v. London Health Sciences Centre'', [https://canlii.ca/t/jx352 2023 ONCA 323] at para 3.</ref>]]<br />
''Saadati v. Moorhead'' held that a plaintiff's mental injury claim does not require proof of a recognized psychological illness but rather the establishment of psychological disturbance beyond ordinary annoyances, fears, and anxieties.<ref name=":3" /> In light of this ruling, subsequent decisions have tried to determine what actually satisfies the threshold described. <br />
<br />
In ''Bothwell v. London Health Sciences Centre'', the plaintiff was given the wrong medication after surgery and sought damages for mental injury caused by the error.<ref>''Bothwell v. London Health Sciences Centre'', [https://canlii.ca/t/jx352 2023 ONCA].</ref> Justice Gillese reiterated the decision in ''Saadati'', stating that in distinguishing between mental injury and mere psychological upset, the court must consider "how seriously the claimant’s cognitive functions and participation in daily activities were impaired, the length of such impairment, and the nature and effect of any treatment sought and taken in relation to the psychological upset."<ref>''Bothwell v. London Health Sciences Centre'', [https://canlii.ca/t/jx352 2023 ONCA 323] at para 32.</ref> He concluded that Bothwell's persisting feelings of anger and frustration about the incident, while understandable, amounted only to psychological upset and did not meet the threshold for compensable injury.<ref>''Bothwell v. London Health Sciences Centre'', [https://canlii.ca/t/jx352 2023 ONCA 323] at para 51.</ref> <br />
<br />
==Discussion questions==<br />
<br />
*Can it be said that in light of ''Saadati v. Moorhead''<ref>''Saadati v. Moorhead'', [https://canlii.ca/t/h42pw 2017 SCC 28] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Saadati_v._Moorhead §19.2.1.3]).</ref> the judicial approach to recovery for negligently inflicted mental injury is aligned with the approach to recovery for negligently inflicted physical injury?<br />
*What are the difficulties in setting principled limits on recovery for negligently inflicted mental injury? Why are courts concerned to set such limits?<br />
*Should mental injury be more readily recoverable as a head of damage when incurred in the course of coming to the aid of or rescuing another?<br />
*Is it always the case that plaintiffs who witness serious careless injury to a close family member can recover for mental suffering that results?<br />
<br />
{{DISPLAYTITLE:<span style="position: absolute; clip: rect(1px 1px 1px 1px); clip: rect(1px, 1px, 1px, 1px);">{{FULLPAGENAME}}</span>}}<br />
<references /></div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Documentation:Torts/Negligence_Mental_injury&diff=858776Documentation:Torts/Negligence Mental injury2025-04-08T14:12:48Z<p>SamuelBeswick: /* Learning of traumatic events */</p>
<hr />
<div>{{Infobox Torts }}<br />
<span style="font-size:200%;">Negligent infliction of mental injury</span><br>It is now clearly established in Canadian common law that mental injury is a recoverable type of [[Sandbox:Torts/Damage|damage]].<ref>''Mustapha v. Culligan of Canada Ltd.'', [https://canlii.ca/t/1wz6f 2008 SCC 27] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Mustapha_v._Culligan §17.1.2]) at paras 8.</ref> The law tends not to recognize mere psychological upset, but rather requires the psychological disturbance to rise to a level that is serious and prolonged, extending beyond ordinary anxieties, annoyances, and fears that people may encounter in every day society.<ref>''Mustapha v. Culligan of Canada Ltd.'', [https://canlii.ca/t/1wz6f 2008 SCC 27] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Mustapha_v._Culligan §17.1.2]) at para 9.</ref> <br />
==The historical development of negligent infliction of mental injury==<br />
[[File:Depression in women.JPG|thumb|left|alt=A woman sitting on a couch with her head in her hands.]]<br />
The common law's early view of negligently inflicted mental injury was "virtually programmed to entrench primitive suspicions and prejudices about 'invisible', intangible harm".<ref>{{Cite book|title=Causing psychiatric and emotional harm: reshaping the boundaries of legal liability|last=Teff|first=Harvey|publisher=Bloomsbury Publishing|year=2008|pages=40}}</ref> Mental injury was described as "a product of the imagination",<ref>''Miner v. C. P. R.'', [https://canlii.ca/t/j878b 1910 CanLII 340 (ABCA)] at 478.</ref> and even in the last century, courts were reluctant to accept it as a form of compensable [[Sandbox:Torts/Damage|damage]] unless accompanied by physical injury.<ref>''Saadati v. Moorhead'', [https://canlii.ca/t/h42pw 2017 SCC 28] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Saadati_v._Moorhead §19.2.1.3]) at para 14 citing Belanger-Hardy, Louise (2013). [https://canlii.ca/t/sx56 "Reconsidering the 'Recognizable Psychiatric Illness' Requirement in Canadian Negligence Law"]. ''Queen's Law Journal''. '''38'''(2): 599–600.</ref><br />
<br />
By the middle of the 20th century, Canadian courts became somewhat more open towards recognizing mental injury, though recovery was still premised on certain conditions influenced by English law, such as requiring claimants to have had, at the material time, a reasonable fear of physical injury.<ref>''Saadati v. Moorhead'', [https://canlii.ca/t/h42pw 2017 SCC 28] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Saadati_v._Moorhead §19.2.1.3]) at para 15.</ref><br />
<br />
In the 1982 English case ''McLoughlin v. O'Brien'', Lord Wilberforce raised three conditions that might limit a plaintiff's ability to recover for mental injury: relational proximity, geographical proximity, and temporal proximity.<ref>''McLoughlin v O'Brian'', [https://www.bailii.org/uk/cases/UKHL/1982/3.html <nowiki>[1982] UKHL 3 (BAILII)</nowiki>] at 5.</ref> While Canadian courts did consider this approach to some extent,<ref>''Beecham v. Hughes'', [https://canlii.ca/t/20xhf 1988 CanLII 2839 (BCCA)] at para 133.</ref> it was later rejected in the seminal case ''Saadati v. Moorhead''.<ref>''Saadati v. Moorhead'', [https://canlii.ca/t/h42pw 2017 SCC 28] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Saadati_v._Moorhead §19.2.1.3]) at para 24.</ref> <br />
<br />
In ''Saadati'', the Supreme Court of Canada held that it is unnecessary to analyze mental injury claims differently from physical injury claims. Instead, it is sufficient to require a claim for mental injury to satisfy the regular elements of negligence: [[Sandbox:Torts/Duty of care|a duty of care]], a [[Sandbox:Torts/Breach of duty of care|breach]], [[Sandbox:Torts/Damage|damage]], and [[Sandbox:Torts/Causation in fact|factual]] and [[Sandbox:Torts/Remoteness in law|legal]] causation.<ref>''Saadati v. Moorhead'', [https://canlii.ca/t/h42pw 2017 SCC 28] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Saadati_v._Moorhead §19.2.1.3]) at paras 19–22, 24.</ref> The Court also clarified that a plaintiff need not prove a recognized psychiatric illness so long as the level of psychological disturbance is ''serious and prolonged'' beyond the types of fears and annoyances expected in ordinary society.<ref name=":3">''Saadati v. Moorhead'', [https://canlii.ca/t/h42pw 2017 SCC 28] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Saadati_v._Moorhead §19.2.1.3]) at para 37.</ref> Furthermore, the Court made a point of repudiating the stigma and skepticism attached to mental injury, stating that tort law "should not seek to perpetuate [misguided prejudices]."<ref>''Saadati v. Moorhead'', [https://canlii.ca/t/h42pw 2017 SCC 28] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Saadati_v._Moorhead §19.2.1.3]) at para 21.</ref><br />
<br />
== Potential causes of mental injury ==<br />
<br />
=== Close-call traumatic events ===<br />
[[File:Culligan Delivery Truck Dundee Michigan.JPG|thumb|left|alt=White delivery truck with Culligan Bottled Water written on the side, along with an image of a bottle of water.]]<br />
Mental injury arising from traumatic events without immediate physical injury was once unrecoverable because it was considered not foreseeably flowing from the defendant's negligent act.<ref>''Victorian Railway Commissioners v. James Coultas and Mary Coultas (Victoria)'', [https://www.bailii.org/uk/cases/UKPC/1888/1888_3.html <nowiki>[1888] UKPC 3</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Victorian_Railways_v. §19.2.1.1]) at 3-4. </ref><ref>''Mitchell v. Rochester Railway Co.'', [https://casetext.com/case/mitchell-v-rochester-railway-co 151 NY 107] (NY CA 1896) ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Mitchell_v._Rochester §19.2.1.2]) at paras 6–7.</ref> Canadian law today, however, allows plaintiffs to recover for mental injury itself. <br />
<br />
In ''Saadati v. Moorhead'', the plaintiff's personality change and cognitive difficulties caused by a motor vehicle accident were sufficient evidence of damage.<ref>''Saadati v. Moorhead'', [https://canlii.ca/t/h42pw 2017 SCC 28] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Saadati_v._Moorhead §19.2.1.3]) at paras 39–40.</ref> In ''Mustapha v. Culligan of Canada Ltd.'', the plaintiff's major depressive disorder, anxiety, and phobia, which were caused by seeing a dead fly in his bottled drinking water, established that the plaintiff had sustained actionable damage.<ref>''Mustapha v. Culligan of Canada Ltd.'', [https://canlii.ca/t/1wz6f 2008 SCC 27] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Mustapha_v._Culligan §17.1.2]) at para 10.</ref><br />
<br />
However, the issue of [[Sandbox:Torts/Remoteness in law|remoteness in law]] still remains and may be a significant barrier to claims of mental injury from traumatic events. Despite holding that the plaintiff had sustained damage in the form of mental injury, the Supreme Court in ''Mustapha'' somewhat controversially found the injury too remote in law to support a claim in negligence because there was no evidence that it was reasonably foreseeable that a person of ordinary fortitude would have suffered mental injury.<ref>''Mustapha v. Culligan of Canada Ltd.'', [https://canlii.ca/t/1wz6f 2008 SCC 27] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Mustapha_v._Culligan §17.1.2]) at paras 12–18.</ref> <br />
<br />
=== Witnessing traumatic events ===<br />
Witnesses to traumatic events have been described in English cases as "secondary victims": those who witnessed injury caused to others but, unlike primary victims, were not directly involved in the incident.<ref>''Saadati v. Moorhead'', [https://canlii.ca/t/h42pw 2017 SCC 28] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Saadati_v._Moorhead §19.2.1.3]) at para 16.</ref> However, the Supreme Court of Canada has not adopted the primary/secondary victim distinction.<ref>''Saadati v. Moorhead'', [https://canlii.ca/t/h42pw 2017 SCC 28] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Saadati_v._Moorhead §19.2.1.3]) at para 19.</ref> The question that judges try to address instead is whether the plaintiff has proved the regular elements of negligence.<ref name=":0">''Marcena v. Thomson'', [https://canlii.ca/t/j1tsh 2019 BCSC 1287] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Marcena_v._Thomson_1 §19.2.2.2]).</ref> In negligence cases involving witnesses to traumatic events, analyzing the mental injury's remoteness in law may be of particular focus in the analysis.<ref>''Marcena v. Thomson'', [https://canlii.ca/t/j1tsh 2019 BCSC 1287] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Marcena_v._Thomson_1 §19.2.2.2]) at paras 68–75.</ref> The plaintiff must show it was reasonably foreseeable that the negligent act could cause psychological harm to a witness.<ref name=":1" /> <br />
<br />
In ''Marcena v. Thomson'', for example, a plaintiff suffered traumatic psychological injury after witnessing his wife struck by a vehicle.<ref name=":0" /> The British Columbia Supreme Court held that "[a] reasonable person would have foreseen that striking a pedestrian with a motorcycle could cause traumatic psychological injury to a close family member who witnessed the accident."<ref name=":1">''Marcena v. Thomson'', [https://canlii.ca/t/j1tsh 2019 BCSC 1287] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Marcena_v._Thomson_1 §19.2.2.2]) at paras 74–75. </ref> <br />
<br />
=== Learning of traumatic events ===<br />
{| class="wikitable" style="float:right;margin-left;10px;width:30%"<br />
! style="background-color:#CEE0F2" |The Hillsborough disaster<br />
|-<br />
|[[File:Hillsborough Stadium in 1991 - geograph.org.uk - 2807213.jpg|alt=A photo of a football match, capturing the green field and several players in jerseys.|thumb|229x229px|Hillsborough Stadium in 1991, two years after the disaster. |center]]This [https://watchdocumentaries.com/hillsborough/ documentary] discusses the events of the Hillsborough disaster,<ref>{{Cite web|last=30 for 30: Soccer Stories|date=8 May 2016|title=Hillsborough|url=https://watchdocumentaries.com/hillsborough/|url-status=live|website=WatchDocumentaries}}</ref> a sporting match that through overcrowding resulted in the deaths of 97 spectators.<ref>{{Cite web|last=Tikkanen|first=Amy|date=8 April 2024|title=Hillsborough disaster|url=https://www.britannica.com/event/Hillsborough-disaster|url-status=live|website=Britannica}}</ref><ref>{{Cite news|url=https://www.theguardian.com/football/2016/apr/26/hillsborough-disaster-deadly-mistakes-and-lies-that-lasted-decades|title=Hillsborough disaster: deadly mistakes and lies that lasted decades|last=Conn|first=David|date=2016|work=The Guardian}}</ref> Afterwards, family members of the deceased brought claims for psychiatric injury suffered from viewing the disaster.<ref>''Alcock v. Chief Constable of South Yorkshire'', [https://www.bailii.org/uk/cases/UKHL/1991/5.html <nowiki>[1991] UKHL 5 (BAILII)</nowiki>].</ref><br />
|}<br />
For 200 years, the common law was of the position that a person could not bring a claim for losses resulting from the death of a family member.<ref>''Baker v. Bolton (1808)'', 170 ER 1033.</ref> This was the view despite the fact that a person could sue for losses resulting from a family members' injuries.<ref>''Ferraiuolo v. Olson'', [https://canlii.ca/t/1hz9z 2004 ABCA 281] at paras 19–30.</ref> Additionally, while courts sometimes permitted recovery for those who witnessed bodily injury or death, they refused for some time to allow plaintiffs to recover based on the mere learning of events.<ref>''Snowball v. Ornge'', [https://canlii.ca/t/h53fq 2017 ONSC 4601] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Snowball_v._Ornge §19.2.3.2]) at para 16. </ref><br />
<br />
The law has undergone development in this regard. In ''Snowball v. Ornge'', the Ontario Supreme Court held that the learning of a family member's death resulting in mental injury may be grounds for a valid claim in negligence.<ref name=":2">''Snowball v. Ornge'', [https://canlii.ca/t/h53fq 2017 ONSC 4601] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Snowball_v._Ornge §19.2.3.2]) at para 21. </ref> Following ''Saadati'', the Court further emphasized that the outcome of such a claim will still depend on the establishment of the ordinary elements of a negligence action.<ref name=":2" /><br />
<br />
Furthermore, while Ontario has not gone so far as to legislatively allow recovery for mental anguish resulting from the death of a family member by negligence, the ''Family Law Act'' does permit recovery for loss of guidance, care, and companionship.<ref>''Snowball v. Ornge'', [https://canlii.ca/t/h53fq 2017 ONSC 4601] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Snowball_v._Ornge §19.2.3.2]) at para 15.</ref><br />
<br />
{| class="wikitable mw-collapsible mw-collapsed" style="width: 65%"<br />
! style="background-color:#CEF2E0" |Legislation<br />
|-<br />
|'''''[https://canlii.ca/t/56763 Family Law Act]'', RSO 1990, c F.3, s 61'''.<ref>''[https://canlii.ca/t/56763 Family Law Act]'', RSO 1990, c F.3, ss 61(1), 61(2).</ref><br />
|-<br />
|'''61'''(1) If a person is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages, or would have been entitled if not killed, the spouse, as defined in Part III (Support Obligations), children, grandchildren, parents, grandparents, brothers and sisters of the person are entitled to recover their pecuniary loss resulting from the injury or death from the person from whom the person injured or killed is entitled to recover or would have been entitled if not killed, and to maintain an action for the purpose in a court of competent jurisdiction. <br />
'''Damages in case of injury'''<br />
<br />
(2) The damages recoverable in a claim under subsection (1) may include, ***<br />
<br />
(e) an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person if the injury or death had not occurred. R.S.O. 1990, c. F.3, s. 61 (2).<br />
|}<br />
==Case law after ''Saadati v. Moorhead''==<br />
[[File:Heparin 1.jpg|alt=A small glass vial of medical labelled "heparin" next to a syringe.|thumb|Following his surgery, Bothwell was given the drug Heparin instead of Voluven. Heparin is known to cause severe bleeding.<ref>''Bothwell v. London Health Sciences Centre'', [https://canlii.ca/t/jx352 2023 ONCA 323] at para 3.</ref>]]<br />
''Saadati v. Moorhead'' held that a plaintiff's mental injury claim does not require proof of a recognized psychological illness but rather the establishment of psychological disturbance beyond ordinary annoyances, fears, and anxieties.<ref name=":3" /> In light of this ruling, subsequent decisions have tried to determine what actually satisfies the threshold described. <br />
<br />
In ''Bothwell v. London Health Sciences Centre'', the plaintiff was given the wrong medication after surgery and sought damages for mental injury caused by the error.<ref>''Bothwell v. London Health Sciences Centre'', [https://canlii.ca/t/jx352 2023 ONCA].</ref> Justice Gillese reiterated the decision in ''Saadati'', stating that in distinguishing between mental injury and mere psychological upset, the court must consider "how seriously the claimant’s cognitive functions and participation in daily activities were impaired, the length of such impairment, and the nature and effect of any treatment sought and taken in relation to the psychological upset."<ref>''Bothwell v. London Health Sciences Centre'', [https://canlii.ca/t/jx352 2023 ONCA 323] at para 32.</ref> He concluded that Bothwell's persisting feelings of anger and frustration about the incident, while understandable, amounted only to psychological upset and did not meet the threshold for compensable injury.<ref>''Bothwell v. London Health Sciences Centre'', [https://canlii.ca/t/jx352 2023 ONCA 323] at para 51.</ref> <br />
<br />
==Discussion questions==<br />
<br />
*Can it be said that in light of ''Saadati v. Moorhead''<ref>''Saadati v. Moorhead'', [https://canlii.ca/t/h42pw 2017 SCC 28] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Saadati_v._Moorhead §19.2.1.3]).</ref> the judicial approach to recovery for negligently inflicted mental injury is aligned with the approach to recovery for negligently inflicted physical injury?<br />
*What are the difficulties in setting principled limits on recovery for negligently inflicted mental injury? Why are courts concerned to set such limits?<br />
*Should mental injury be more readily recoverable as a head of damage when incurred in the course of coming to the aid of or rescuing another?<br />
*Is it always the case that plaintiffs who witness serious careless injury to a close family member can recover for mental suffering that results?<br />
<br />
{{DISPLAYTITLE:<span style="position: absolute; clip: rect(1px 1px 1px 1px); clip: rect(1px, 1px, 1px, 1px);">{{FULLPAGENAME}}</span>}}<br />
<references /></div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Documentation:Torts/Negligence&diff=858775Documentation:Torts/Negligence2025-04-08T13:56:20Z<p>SamuelBeswick: </p>
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<div>{{Infobox Torts}}<br />
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The tort of negligence allows plaintiffs to recover for damage that is caused when someone who owes them a duty of care behaves in a manner which falls short of said duty.<ref name=":0">''Mustapha v. Culligan'', [https://www.canlii.org/t/1wz6f 2008 SCC 27] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#17_1_3_Mustapha_v__Culligan__2008__SCC_27 §17.1.3]) at para 3. </ref> The Supreme Court of Canada has defined negligent conduct as that which "creates an objectively unreasonable risk of harm."<ref>''Ryan v. Victoria (City)'', [https://www.canlii.org/t/1fqpf 1999 CanLII 706 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#14_1_2_2__Ryan_v__Victoria__City___1999__CanLII_706__SCC_ §14.1.2.2], [https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#14_2_6_2__Ryan_v__Victoria__City___1999__CanLII_706__SCC_ §14.2.6.2]) at para 28.</ref> <br />
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The landmark case that precipitated courts to strive for a coherent approach to negligence was ''Donoghue v. Stevenson—''a case where the plaintiff fell ill after consuming a snail-tainted gingerbeer float that their friend had bought for them.<ref>''Donoghue v. Stevenson'', [https://www.bailii.org/uk/cases/UKHL/1932/100.html <nowiki>[1932] UKHL 100 (BAILII</nowiki>]) ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#13_1___Development_of_the_tort_of_negligence §13.1]).</ref><ref>{{Cite journal|last=Linden|first=AM|date=1983|title=The Good Neighbour on Trial: A Fountain of Sparkling Wisdom|url=https://mobile.heinonline.org/HOL/LandingPage?handle=hein.journals/ubclr17&div=9|journal=UBC Law Review|volume=17|issue=1|pages=67, 86|via=}} ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#13_1_2_The_neighbour_principle §13.1.2]).</ref> ''Donoghue v. Stevenson'' was influential, in part, because of Lord Aitken's articulation of the [[Sandbox:Torts/Duty of care#Neighbour principle|neighbour principle]] which, according to Professor Linden, "provide[d] a magnificent vehicle to enable us to discuss what is acceptable and proper conduct and what is unacceptable and improper conduct".<ref>{{Cite journal|last=Linden|first=AM|date=1983|title=The Good Neighbour on Trial: A Fountain of Sparkling Wisdom|url=https://mobile.heinonline.org/HOL/LandingPage?handle=hein.journals/ubclr17&div=9|journal=UBC Law Review|volume=17|issue=1|pages=86, 89|via=}} ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#13_1_2_The_neighbour_principle §13.1.2]).</ref> <br />
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In ''Donoghue v. Stevenson'', Lord Macmillan averred that "[t]he [[Sandbox:Torts/Categories of negligence|categories of negligence]] are never closed",<ref>''Donoghue v. Stevenson'', [https://www.bailii.org/uk/cases/UKHL/1932/100.html <nowiki>[1932] UKHL 100 (BAILII</nowiki>]) ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#13_1_1_Donoghue_v__Stevenson_1932_CanLII_536__FOREP____1932__UKHL_100 §12.4.2]) at para 80.</ref> and in the years that have followed, the law of negligence has continued to expand accordingly.<ref>See e.g. cases discussed in [[Sandbox:Torts/Categories of negligence|Negligence Categories]].</ref> <br />
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== Elements of negligence ==<br />
Courts have expressed the elements of [https://en.wikipedia.org/wiki/Negligence negligence] in a number of ways, ranging from two to five elements.<ref name=":1">{{Cite journal|last=Owen|first=David G|date=2007|title=The Five Elements of Negligence|url=https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=2282&context=hlr|journal=Hofstra Law Review|volume=34|issue=4|pages=1673|via=}}</ref> The standard seems to be a four-element conception: "duty, breach, cause, and damage".<ref name=":1" /> However, some scholars argue that a five-element approach is best, as the four-element conception "misleadingly conflates two distinct ideas that too often are linked uncomfortably together under the umbrella term, 'cause': ''factual'' causation and ''proximate'' cause",<ref>{{Cite journal|last=Owen|first=David G|date=2007|title=The Five Elements of Negligence|url=https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=2282&context=hlr|journal=Hofstra Law Review|volume=35|issue=4|pages=1673–74|via=}}</ref> the latter concept also being known as legal causation or remoteness.<ref>''Mustapha v. Culligan'', [https://www.canlii.org/t/1wz6f 2008 SCC 27] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#17_1_3_Mustapha_v__Culligan__2008__SCC_27 §17.1.3]) at para 14.</ref> <br />
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In ''Mustapha v. Culligan'' and ''1688782 Ontario Inc v. Maple Leaf Foods Inc'', the Supreme Court of Canada set out the test with four elements but explicitly split the fourth element into [[Sandbox:Torts/Causation|factual causation]] and [[Sandbox:Torts/Remoteness|legal causation]]:<ref name=":0" /><ref>''1688782 Ontario Inc v Maple Leaf Foods Inc,'' [https://www.canlii.org/t/jbg4h 2020 SCC 35] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#19_3_2_1688782_Ontario_Inc__v__Maple_Leaf_Foods_Inc___2020__SCC_35 §19.3.2]) at para 18.</ref><blockquote>A successful action in negligence requires that the plaintiff demonstrate (1) that the defendant owed him a duty of care; (2) that the defendant’s behaviour breached the standard of care; (3) that the plaintiff sustained damage; and (4) that the damage was caused, in fact and in law, by the defendant’s breach.</blockquote><br />
{| class="wikitable" style="width:65%"<br />
! style="background-color:#E0CEF2" |Elements of negligence<ref name=":0" /><br />
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|1. The defendant owed the plaintiff a duty of care<br />
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|2. The defendant's behaviour breached the standard of care<br />
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|3. The plaintiff sustained damage<br />
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|4. The plaintiff's damage was caused in fact by the defendant's breach<br />
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|5. The plaintiff's damage was caused in law by the defendant's breach<br />
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=== [[Sandbox:Torts/Duty of care|Duty of care]] ===<br />
The first element a plaintiff must prove is that the defendant owed them a duty of care.<ref name=":0" /> The duty analysis "asks whether this relationship is so close that the one may reasonably be said to owe the other a duty to take care not to injure the other".<ref>''Mustapha v. Culligan'', [https://www.canlii.org/t/1wz6f 2008 SCC 27] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#17_1_3_Mustapha_v__Culligan__2008__SCC_27 §17.1.3]) at para 4, citing ''Donoghue v. Stevenson'', [https://www.bailii.org/uk/cases/UKHL/1932/100.html <nowiki>[1932] UKHL 100 (BAILII</nowiki>]) ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#13_1___Development_of_the_tort_of_negligence §13.1]).</ref> In Canada, this stage may involve relying on an analogous established duty of care or by the plaintiff establishing a novel duty of care under what is known as the ''Anns/Cooper'' test.<ref>''Rankin’s Garage & Sales v. JJ'', [https://www.canlii.org/en/ca/scc/doc/2018/2018scc19/2018scc19.html 2018 SCC 19] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#13_4_2_3__Rankin_s_Garage__Sales_v__J_J___2018__SCC_19 §13.4.2.3]) at para 18.</ref><br />
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=== [[Sandbox:Torts/Breach of duty of care|Breach of duty]] ===<br />
At the breach stage, a plaintiff "must prove that the defendant did not meet the standard of care", which involves establishing what the appropriate standard is, as well as showing that the standard was breached.<ref name=":12">Katsivela, M (2017). [https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3310639 "The Breach of the Standard of Care and the Concept of Fault in Civil Law in Canada: A Comparative Study"]. ''Canadian Bar Rev''. '''95''': 539 ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#14_1___Standard_of_care §14.1]).</ref><br />
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=== [[Sandbox:Torts/Damages|Damage]] ===<br />
This element requires that the plaintiff prove that they experienced "a loss which is recognised in law as compensatable by an award of damages".<ref name=":13">''Re T&N Ltd'', [https://www.bailii.org/ew/cases/EWHC/Ch/2005/2870.html <nowiki>[2005] EWHC 2870 (Ch)</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#15_1___Damage_an_essential_element §15.1]) at para 25.</ref><br />
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=== [[Sandbox:Torts/Causation in fact|Causation in fact]] ===<br />
Factual causation typically requires that the plaintiff satisfies a "but-for" test of causation.<ref name=":4">''Clements v. Clements'', [https://www.canlii.org/t/frvld 2012 SCC 32] (§[https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#16_2_2_Clements_v__Clements__2012__SCC_32 16.2.2]) at para 46.</ref> This means "the plaintiff must prove on a balance of probabilities that, but for the tortious conduct of the defendant, the plaintiff would not have sustained the injury complained of."<ref>''Snell v. Farrell,'' [https://www.canlii.org/en/ca/scc/doc/1990/1990canlii70/1990canlii70.html 1990 CanLII 70 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#16_1___But_for_cause_of_damage §16.1]) at para 15.</ref> In some cases, though, the but-for test is not suitable and alternative tests may be applied instead.<ref name=":14">{{Cite web|last=Suen|first=Ching|date=14 September 2019|title=Material Contribution: Bridging the Evidentiary Gap|url=https://blog.lselawreview.com/2019/09/material-contribution-bridging-evidentiary-gap|url-status=live|archive-url=|archive-date=|access-date=|website=LSE Law Review Blog}} ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#16_2___Material_contribution_to_risk_of_damage §16.2]).</ref><ref>{{Cite web|last=Burnett|first=Gill|date=6 April 2020|title=The Doctrine of Loss of Chance: Recent Developments|url=https://www.dacbeachcroft.com/en/gb/articles/2020/april/the-doctrine-of-loss-of-chance-recent-developments/|url-status=live|archive-url=|archive-date=|access-date=|website=DAC Beachcroft}} ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#16_3___Loss_of_chance §16.3]).</ref><br />
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=== [[Sandbox:Torts/Remoteness in law|Remoteness in law]] ===<br />
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Remoteness, also known as causation in law or proximate cause, considers whether “the harm [is] too unrelated to the wrongful conduct to hold the defendant fairly liable”.<ref>''Mustapha v. Culligan'', [https://www.canlii.org/t/1wz6f 2008 SCC 27] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#17_1_3_Mustapha_v__Culligan__2008__SCC_27 §17.1.3]) at para 12 citing Allen M Linden & Bruce Feldthusen, ''Canadian Tort Law,'' 8th ed (Markham: LexisNexis Butterworths, 2006).</ref> This inquiry involves considering factors such as the reasonable foreseeability of the actual injury,<ref name=":15">''Nelson (City) v. Marchi'', [https://www.canlii.org/en/ca/scc/doc/2021/2021scc41/2021scc41.html 2021 SCC 41] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#17_1_4_Nelson__City__v__Marchi__2021__SCC_41 §17.1.4]) at para 97.</ref> intervening events,<ref>''Home Office v. Dorset Yacht Co Ltd,'' [https://www.bailii.org/uk/cases/UKHL/1970/2.html <nowiki>[1970] UKHL 2 (BAILII)</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#17_2_2_Home_Office_v__Dorset_Yacht_Co__Ltd__1970__UKHL_2 §17.2.2]) at para 9.</ref> the eggshell skull principle,<ref>''Athey v. Leonati'', [https://www.canlii.org/en/ca/scc/doc/1996/1996canlii183/1996canlii183.html 1996 CanLII 183 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#17_4_1_Athey_v__Leonati__1996__CanLII_183__SCC_ §17.4.1]) at para 47.</ref> and the crumbling skull principle.<ref name=":16">''Athey v. Leonati'', [https://www.canlii.org/en/ca/scc/doc/1996/1996canlii183/1996canlii183.html 1996 CanLII 183 (SCC)] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#17_4_1_Athey_v__Leonati__1996__CanLII_183__SCC_ §17.4.1]) at para 36.</ref><br />
[[File:Duty of care diagram.png|center|thumb|625x625px|Diagram for pleading the tort of negligence]]<br />
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== Defences ==<br />
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{| class="wikitable" style="float:right;margin-left;10px;width:30%"<br />
! style="background-color:#CEE0F2" | Defences to negligence in Australia<br />
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|In this episode of ''Just Torts'', host Brent Liang discusses potential defences to negligence with Giacomo Rotolo-Ross and Maxine Jeric, in the context of Australian tort law.<ref>{{Cite web|last=Liang|first=Brent|date=4 Jan 2018|title=Duty of Care: Defences|url=https://soundcloud.com/justtortspodcast/ep-12-duty-of-care-defences|url-status=live|archive-url=|archive-date=|access-date=|website=Just Torts|via=SoundCloud}}</ref><br />
{{#widget:Iframe|url=https://w.soundcloud.com/player/?url=https%3A//api.soundcloud.com/tracks/379044674&color=%23ff5500&auto_play=false&hide_related=false&show_comments=true&show_user=true&show_reposts=false&show_teaser=true&visual=true|width=100%|height=150px|border=0}}<br />
|}<br />
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Once the plaintiff has proven the elements of negligence on a balance of probabilities, the defendant may wish to raise a defence. Common defences raised in response to claims of negligence include [[Sandbox:Torts/Consent#Assumption of risk|assumption of risk]] and [[Sandbox:Torts/Illegality|illegality]], as well as partial defences concerning [[Sandbox:Torts/Apportionment of liability|apportionment of liability]]. <br />
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{{DISPLAYTITLE:<span style="position: absolute; clip: rect(1px 1px 1px 1px); clip: rect(1px, 1px, 1px, 1px);">{{FULLPAGENAME}}</span>}}</div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Template:Infobox_Torts&diff=858772Template:Infobox Torts2025-04-08T06:47:52Z<p>SamuelBeswick: </p>
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<div>{| class="infobox" width="250px"<br />
! colspan="2" style="background:#6fa8dc; width:200px; color: white; font-weight:normal; font-size:11pt; padding-top: 0.5em; padding-bottom: 0.5em;" | [[Sandbox:Torts|'''TORT LAW''']]<br />
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! colspan="2" style="background:#cfe2f3; font-weight:normal; width:200px; color: black; font-size:10pt;" | [https://canlii.ca/t/t9st '''CASEBOOK''']<br />
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! colspan="2" style="background:#ffe599; font-weight:normal; width:200px; color: black; font-size:10pt;" | [[Sandbox:Torts/Introduction|Introduction]]<br />
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! colspan="2" style="background:#ffe599; font-weight:normal; width:200px; color: black; font-size:10pt;" | Dignitary Torts<br />
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! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Sandbox:Torts/Defamation|Defamation]] • [[Sandbox:Torts/Discrimination|Discrimination]] • [[Sandbox:Torts/Harassment|Harassment]] • [[Sandbox:Torts/Intentional infliction of mental suffering|Intentional infliction of mental suffering]] • [[Sandbox:Torts/Invasion of privacy|Invasion of privacy]] • [[Sandbox:Torts/Trespass to the person|Trespass to the person]] <br />
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! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Sandbox:Torts/Intentional interference with goods|Interference with goods]] • [[Sandbox:Torts/Intentional interference with land|Interference with land]] • [[Sandbox:Torts/Non-natural_use_of_land|Non-natural use of land]] • [[Sandbox:Torts/Private nuisance|Private nuisance]] • [[Sandbox:Torts/Public nuisance|Public nuisance]]<br />
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! colspan="2" style="background:#ffe599; width:200px; font-weight:normal; font-size:10pt; color: black;" | [[Sandbox:Torts/Negligence|Negligence Tort]]<br />
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! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Sandbox:Torts/Duty of care|Duty of care]] • [[Sandbox:Torts/Breach of duty of care|Breach of duty]] • [[Sandbox:Torts/Damage|Damage]] • [[Sandbox:Torts/Causation_in_fact|Causation]] • [[Sandbox:Torts/Remoteness_in_law|Remoteness]]<br />
| style="font-size:9pt;" |<br />
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! colspan="2" style="background:#ffe599; width:200px; font-weight:normal; font-size:10pt; color: black;" | [[Sandbox:Torts/Categories of Negligence|Negligence Categories]]<br />
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! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Sandbox:Torts/Negligence_Employment|Employment]] • [[Sandbox:Torts/Negligence_Pollution|Environmental pollution]] • [[Sandbox:Torts/Negligence_Products|Harmful products]] • [[Sandbox:Torts/Negligence_Hosting|Hosting patrons and guests]] • [[Sandbox:Torts/Negligence_Mental_injury|Infliction of mental injury]] • [[Sandbox:Torts/Negligence_Misrepresentation|Misrepresentation]] • [[Sandbox:Torts/Negligence_Occupiers|Occupation of premises]] • [[Sandbox:Torts/Negligence_Services|Professional services]] • [[Sandbox:Torts/Negligence_Public_authorities|Public authorities]] • [[Sandbox:Torts/Negligence_Relational_Economic_Loss|Relational economic loss]] • [[Sandbox:Torts/Negligence_Rescuers|Rescuers]] • [[Sandbox:Torts/Negligence_Shoddy_Goods_Structures|Shoddy goods or structures]] • [[Sandbox:Torts/Negligence_Institutional_abuse|Treatment of indigenous children]] • [[Sandbox:Torts/Negligence_Unborn_children|Unborn children]] <br />
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! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Sandbox:Torts/Abuse_of_process|Abuse of process]] • [[Sandbox:Torts/Breach_of_confidence|Breach of confidence]] • [[Sandbox:Torts/Conspiracy|Conspiracy]] • [[Sandbox:Torts/Fraud|Fraud]] • [[Sandbox:Torts/Inducing_breach_of_contract|Inducing breach of contract]] • [[Sandbox:Torts/Injurious_falsehood|Injurious falsehood]] • [[Sandbox:Torts/Intimidation|Intimidation]] • [[Sandbox:Torts/Malicious_prosecution|Malicious prosecution]] • [[Sandbox:Torts/Misfeasance_in_public_office|Misfeasance in public office]] • [[Sandbox:Torts/Passing_off|Passing off]] • [[Sandbox:Torts/Spoliation|Spoliation]] • [[Sandbox:Torts/Unlawful_means|Unlawful interference with economic interests]]<br />
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! colspan="2" style="background:#ffe599; width:200px; font-weight:normal; font-size:10pt; color: black;" | [[Sandbox:Torts/Strict_liability|Strict Liability]]<br />
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! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Sandbox:Torts/Keeping_dangerous_animals|Keeping dangerous animals]] • [[Sandbox:Torts/Non-natural_use_of_land|Non-natural use of land]] • [[Sandbox:Torts/Ultrahazardous_activities|Ultrahazardous activities]] • [[Sandbox:Torts/Vicarious_liability|Vicarious liability]]<br />
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! colspan="2" style="background:#ffe599; width:200px; font-weight:normal; font-size:10pt; color: black;" | [[Sandbox:Torts/Defences|Defences]]<br />
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! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Sandbox:Torts/Apportionment of liability| Apportionment of liability]] • [[Sandbox:Torts/Consent|Consent]] • [[Sandbox:Torts/Defamation#Defences|Defamation defences]] • [[Sandbox:Torts/Defence of property|Defence of property]] • [[Sandbox:Torts/Denials|Denials]] • [[Sandbox:Torts/Excuses|Excuses]] • [[Sandbox:Torts/Illegality|Illegality]] • [[Sandbox:Torts/Legal authority|Legal authority]] • [[Sandbox:Torts/Limitation|Limitation]] • [[Sandbox:Torts/Necessity|Necessity]] • [[Sandbox:Torts/Self-defence|Self-defence]]<br />
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! colspan="2" style="background:#ffe599; width:200px; font-weight:normal; font-size:10pt; color: black;" | [[Sandbox:Torts/Remedies|Remedies]]<br />
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! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Sandbox:Torts/Apologies|Apologies]] • [[Sandbox:Torts/Damages|Damages]] • [[Sandbox:Torts/Injunctions|Injunctions]] • [[Sandbox:Torts/Insurance|Insurance]] • [[Sandbox:Torts/Legal_costs|Legal costs]] • [[Sandbox:Torts/Mitigation|Mitigation]] • [[Sandbox:Torts/Intentional interference with chattels|Proprietary]]<br />
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! colspan="2" style="background:#ffe599; width:200px; font-weight:normal; font-size:10pt; color: black;" | Tort Law & Legal Systems<br />
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! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Sandbox:Torts/Charter_values|Charter values]] • [[Sandbox:Torts/Class_actions|Class actions]] • [[Sandbox:Torts/Concurrent actions|Concurrent actions]] • [[Sandbox:Torts/Constitutional_torts|Constitutional torts]] • [[Sandbox:Torts/Indigenous_dispute_resolution|Indigenous dispute resolution]] • [[Sandbox:Torts/No-fault compensation schemes|No-fault compensation schemes]]<br />
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! colspan="2" style="background:#ffe599; width:200px; font-weight:normal; font-size:10pt; color: black;" | [[Sandbox:Torts/Tort_theory|Tort Theory]]<br />
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! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Sandbox:Torts/Instrumental_theories|Instrumental theories]] • [[Sandbox:Torts/Constructive_theories|Constructive theories]] • [[Sandbox:Torts/Critical_theories|Critical theories]] • [[Sandbox:Torts/Reflexive_theories|Reflexive theories]]<br />
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! colspan="2" style="background:#ffe599; width:200px; font-weight:normal; font-size:10pt; color: black;" | Study Resources<br />
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! colspan="2" style="font-size:9pt; font-weight:normal; width:200px; text-align:left; padding:0.5em;" | [[Sandbox:Torts/1L strategy|1L strategy]] • [[Sandbox:Torts/Answer exercises|Answer exercises]] • [[Sandbox:Torts/Quizzes|Quizzes]] • [https://blogs.ubc.ca/beswick/torts/ Beswick's course site] • [https://open-2021.sites.olt.ubc.ca/files/2025/03/2025-TLEF-Poster-SamuelBeswick.pdf Opening Up Tort Law Project]<br />
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</noinclude></div>SamuelBeswickhttps://wiki.ubc.ca/index.php?title=Documentation:Torts/Ultrahazardous_activities&diff=858770Documentation:Torts/Ultrahazardous activities2025-04-08T06:25:17Z<p>SamuelBeswick: </p>
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<div>{{Infobox Torts}}<br />
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In Canada there is no distinct common law rule of [https://en.wikipedia.org/wiki/Strict_liability strict liability] for "ultrahazardous activities." <br />
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Some other jurisdictions do apply strict liability to certain activities that are considered to be ultrahazardous. The rationale is that such activities involve a high degree of risk or danger for which it is appropriate that, in the event of resulting harm, liability is imposed even in the absence of the defendant's fault.<br />
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== The rationale for strict liability for ultrahazardous activities ==<br />
Similar to the rationale for [[Sandbox:Torts/Non-natural use of land|the tort in ''Rylands v. Fletcher'']], where individuals or entities undertake activities that are inherently dangerous to others, the rationale of strict liability is to ensure the defendant fully internalises the costs of the risk they create, by imposing civil liability for any harm caused, regardless of the level of care exercised.<br />
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In the United States ''Restatement (Second) of Torts'', such liability may be imposed where six factors are established: <br />
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{| class="wikitable" style="width:70%"<br />
! style="background-color:#E0CEF2" |Factors for determining "Abnormally Dangerous Activity"<ref name=":0">{{Cite book|title=Restatement of the Law, Second: Torts 2d|last=American Law Institute|first=|publisher=American Law Institute Publishers.|year=1965|isbn=|location=St. Paul|pages=36}}</ref><br />
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|(a) existence of a high degree of risk of some harm to the person, land or chattels of others;<br />
|-<br />
|(b) likelihood that the harm that results from it will be great;<br />
|-<br />
|(c) inability to eliminate the risk by the exercise of reasonable care; and<br />
|-<br />
|(d) extend to which the activity is not a matter of common usage;<br />
|-<br />
|(e) inappropriateness of the activity to the place where it is carried on; and <br />
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|(f) extent to which its value to community is outweighed by its dangerous attributes. <br />
|}The scope of tortious activities goes beyond the strict liability rule set out in ''[[Sandbox:Torts/Non-natural use of land|Rylands v. Fletcher]]'': there is no requirement of “escape” of a dangerous thing, nor a “non-natural” use of land.<ref>''Smith v. Inco Limited'', [https://www.canlii.org/en/on/onca/doc/2011/2011onca628/2011onca628.html?searchUrlHash=AAAAAQATUnlsYW5kcyB2LiBGbGV0Y2hlcgAAAAAB&resultIndex=1 2011 ONCA 628], at para 77.</ref> The tort is considered to encompass acts or omissions "carried [out] on public highway or public place[s]" not limited to the land of another.<ref name=":0" /><br />
== Jurisdictional divergence ==<br />
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[[File:2023 Ohio train derailment.jpg|thumb|196x196px|The transportation of hazardous materials is recognized as a ultra-hazardous activity in ''Union Pacific Railroad Co. v. Public Service Commission of Montana.'' |alt=|left]]<br />
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=== Canada ===<br />
Canadian common law does not recognise a distinct rule of strict liability for ultrahazardous activities. Professors Linden and Feldthusen have argued that strict liability should extend to activities whose very nature is hazardous, although they recognise this position has yet to be openly embraced by Canadian Courts.<ref name=":3" /> <br />
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The Ontario Court of Appeal in ''Smith v. Inco Ltd'' rejected the extension of the ''Rylands v. Fletcher'' rule to activities of ultrahazardous nature generally.<ref name=":3">''Smith v. Inco Limited'', [https://www.canlii.org/en/on/onca/doc/2011/2011onca628/2011onca628.html 2011 ONCA 628], at para 78.</ref> The Court's reasoning rested on the contextual differences. ''Rylands v. Fletche''r concerns the risk of accidental or unintended consequences of an escaping force, such as gas leaks or floods. By contrast, the proposed ultrahazardous activity tort would make the defendant "liable for damages even if they are not the product of any accident or misadventure, but are instead the product of the intended consequences of the activity."<ref name=":3" /><br />
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=== United States ===<br />
Strict liability for ultra-hazardous activities is recognised in the ''Restatement Second of Torts'', which restates the common law of the various states in the United States. American case law has applied the doctrine in a number of cases, including cases involving the spread of toxic fumes in a chemical facility (''Indiana Harbor Belt Railroad Co. v. American Cyanamid Co''), blasting activities (''Friendswood Development Company v. Smith-Southwest Industries, Inc'') as well as the operation of a crane during construction (''Miller v. Civil Constructors, Inc.''). The scope and applicability of this tort varies according to each state's laws and jurisprudence. <br />
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=== India ===<br />
This tort garnered considerable attention after the [https://en.wikipedia.org/wiki/Bhopal_disaster Bhopal gas tragedy] claimed the lives of 3787 people in India. After a highly toxic gas leaked and spread across the Bhopal plant many of those working or living proximate to the plant were exposed to toxic fumes, giving rise to 487,000 claims under the ''Bhopal Gas Leak Disaster (Processing of Claims) Act''. <ref>{{Cite journal|last=Muchlinski|first=PT|date=1987|title=The Bhopal Case: Controlling Ultrahazardous Industrial Activities Undertaken by Foreign Investors.|url=|journal=Modern Law Review|volume=|pages=545|via=}}</ref> In response to concerns of lack of alternative legal remedy for the gas leak, the Court in ''[https://en.wikipedia.org/wiki/M._C._Mehta_v._Union_of_India M.C. Mehta v. Union of India]'' affirmed tortious liability for ultra-hazardous activity, stating: <ref name=":1">''M.C. Mehta v. Union of India'' [https://indiankanoon.org/doc/1486949/ (1987) 1 SCC 395.]</ref><br />
{| class="wikitable" style="float:right;margin-left;10px;width:23%"<br />
! style="background-color:#CEE0F2" |BBC News on "The Indian city that turned into a gas chamber" <br />
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|This BBC News article details the Bhopal gas tragedy in India which gave rise to the tort of Ultra Hazardous Activity.{{#widget:YouTube|id=s1VjgdF7vPE|height=215|width=320}}<br />
|}<blockquote>"We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and nondelegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken. The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part."<ref name=":1" /></blockquote><br />
=== China ===<br />
China recognizes strict liability for ultrahazardous activities, which extends no-fault liability in circumstances including "civil nuclear facilities; high-speed railways; activities involving high-pressure, high-altitude, and underground operations; as well as the possession or use of flammable, explosive, poisonous, radioactive, or other high-risk material".<ref name=":2">{{Cite book|title=Concise Chinese Tort Laws|last=Xiang Li & Jigang Jin|first=|publisher=Springer Berlin Heidelberg|year=2014|isbn=|location=Berlin, Heidelberg|pages=99}}</ref> The following requirements laid out in the civil code must be satisfied: <br />
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# "First, the operation itself has high risk. In other words, the probability that the risk will turn into actual harm is high and exceeds people’s normal sense of prevention.<br />
# Second, even after reasonable prevention measures and corresponding cares were taken, damage caused by high-risk operations still could not be prevented.<br />
# Third, ultrahazardous activities are legal activities; at least, they are not prohibited by law."<ref name=":2" /> <br />
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== Discussion questions ==<br />
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* How is strict liability in tort for ultrahazardous activities distinct from the tort in ''Rylands v. Fletcher''? <br />
* Scholars Linden and Feldthusen have argued that strict liability should extend to activities whose very nature is hazardous, but the Court and ''Smith v. Inco'' disagreed. Should Canadian common law recognise a distinct strict liability tort of ultra-hazardous activity?<br />
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