II) Contributory Negligence

The issue of contributory negligence is clearly allied to that of provocation but it is a wider concept, operating wherever the plaintiff has failed to take reasonable steps for her own safety. Whether or not damages may be reduced on the ground of contributory negligence depends upon the language of the applicable apportionment legislation. The apportionment legislation has been construed quite liberally and, where it allows apportionment on the basis of the "fault" of each of the parties, it has, in some cases, been applied to the intentional torts. A good example is Berntt v. Vancouver (City of). [Note 105: [1997] 4 W.W.R. 505 (B.C.S.C.), new trial ordered (1999), 174 D.L.R. (4th) 403 (B.C.C.A.).] The plaintiff was injured in a riot that followed the seventh-game loss of the Vancouver Canucks in the 1994 Stanley Cup final. The plaintiff was shot by a rubber bullet fired by a police officer. The police officer was, in the circumstances, unable to legally justify the shooting. Nevertheless, the plaintiff's damages were reduced by 75 percent on the ground of his contributory negligence. He was an eager participant in the riot and had incited the crowd. Some legislation, however, allows apportionment only on the basis of the "negligence" of each party, which makes its extension to the intentional torts problematic.

c)		Inoperative Defences
i)		Mistake

Mistake is not a defence to the intentional interference with the person. It is no defence, for example, that a surgeon cut off the wrong leg because he was labouring under an innocent and reasonable misapprehension. This is clearly good policy. It provides a powerful incentive to exercise great caution before intentionally interfering with another person. The only exception relates to the defences of self-defence and defence of a third person. Those situations demand that the plaintiff be permitted to respond immediately to what she honestly and reasonably believes to be a threat of immediate violence without first inquiring into, or investigating the validity of, that belief.

ii) Duress

Proof that the defendant was coerced or forced by others to interfere intentionally with the person of the plaintiff is not a defence. The policy of the law is that coercion and pressure must be resisted even when severe consequences may flow from a refusal to submit. This may seem harsh but any other rule would tend to promote violence by providing protection to those who bend to the will of a third party and injure the plaintiff.

14) Remedies

The primary remedy for the intentional interference with the person is damages. Compensatory damages are calculated in the same manner as injury and fatality claims in negligence. The only added dimension to an award of damages under the intentional torts is the greater possibility of aggravated damages or punitive damages .

Aggravated damages are essentially compensatory in nature. They recognize that the malicious, high-handed, and outrageous nature of the defendant's conduct may add a degree of humiliation, loss of dignity, and embarrassment to the plaintiff. Aggravated damages may be incorporated into, and inflate the award of, general damages or may be awarded as a discrete amount.

There is no clearer recognition of the deterrent and punitive function of tort law than the power of judges to award punitive damages. Punitive damages may be awarded where the conduct of the defendant is so outrageous, socially unacceptable, or intolerable that it warrants strong deterrence and is deserving of punishment in excess of that inherent in the compensatory award. Punitive damages are most common in respect of sexual batteries and other criminal violence. Courts are, however, reluctant to award punitive damages if the defendant has received a criminal sentence for the conduct that is the subject of the tort claim. Overall punitive damages for intentional interference with the person tend to be moderate and rarely exceed $100,000. [Note 106: Klar, above note 8 at 94.]

CHAPTER 4, INTENTIONAL TORTS

D. INTENTIONAL INTERFERENCE WITH LAND:

TRESPASS TO LAND

Trespass to land provides a remedy for the direct, intentional (or negligent), and physical interference with land in the possession of the plaintiff. It is actionable without proof of damage. Trespass to land is committed in three ways. First, and most commonly, it is a trespass to enter personally onto land in possession of the plaintiff without permission. This covers a broad range of situations, including persons who break and enter, adults who mistakenly walk through a door marked "no admission," and young children who, lacking an acute sense of private property, wander wherever their curiosity or interest may take them. Second, it is a trespass to place objects on the plaintiff's property. To kick a ball onto the property of the plaintiff, to deliver parcels to the wrong address, or to dump garbage onto the land of another person are acts of trespass. Trespass to land by leaving or placing an object on the land is referred to as a continuing trespass, which gives rise to new causes of action each day until the object is removed. The advantage of this principle is that the plaintiff's trespassory remedies are protected from limitation periods and subsequent possessors may also have a remedy. Third, a trespass may arise when the possessor revokes a visitor's permission or licence to be on the property. If the visitor does not leave the property within a reasonable time, he becomes a trespasser and reasonable force may be used to eject him. This arises most commonly when disorderly patrons and fans are ejected from bars and sporting events.

The formulation of trespass to land as a direct physical interference with land in the possession of the plaintiff allows the tort to protect a number of diverse interests. It was initially designed to protect landholders from violent intrusion or eviction from their land; the development of a civil remedy reduced the likelihood of violence and protected the possessor's interest in the peaceful enjoyment of his property. In modern tort law, trespass to land plays a much more sophisticated role. First, it protects the possessor's interest in freedom of land use. The power to control entry onto land facilitates the use and development of it in accordance with the possessor's desires and interests. A possessor of land is not required to accommodate others who may have a reasonable need or desire to enter his land. Second, trespass to land plays a conventional compensatory and deterrent role when an intruder damages land or destroys premises. Third, trespass to land plays an important role in the protection of privacy interests. The slightest intrusion into a person's home or apartment gives rise to trespassory remedies. That a person's home is his castle is, in no small part, due to the tort of trespass to land. Finally, trespass to land is an adjunct of the law of real property. It plays a role in the determination of competing land claims and the settlement of boundary disputes. It also provides protection to the possessor against the acquisition of prescriptive easements over his property as a result of twenty years of continuous trespassing in derogation of the possessor's rights. The trespassory conduct may be trivial and harmless, such as a technical but permanent invasion of airspace or the use of land as a pedestrian right of way. Nevertheless, the tort of trespass to land allows the possessor to assert his proprietary rights and prevent the establishment of a prescriptive easement. [Note 107: Easements cannot be acquired by prescription in all provinces: see, for example, Alberta Law of Property Act, R.S.A. 1980, c. L-8, s. 60(3).] The capacity of the tort of trespass to complement property law is enhanced by the fact that trespass to land is actionable without proof of damage and also by the fact that mistake is no defence.