- •Introduction
- •1) Criminal Law and Tort Law Contrasted
- •B. The origins of canadian tort law
- •1) The Nature of the Defendant's Conduct
- •2) The Nature of the Plaintiff's Loss
- •D. The objectives of tort law
- •2) The Instrumentalist View
- •I) Specific Deterrence
- •II) General Deterrence
- •III) Market Deterrence
- •E. Personal injury, tort law, and other compensatory vehicles
- •1) Governmental Initiatives
- •2) Private Sector First-Party Insurance
- •F. The organization of tort law
- •A. Introduction
- •1) Application of the Standard of Care
- •I) Judicial Policy
- •2) Special Standards of Care
- •3) Proof of Negligence: Direct and Circumstantial Evidence
- •1) Cause-in-Fact
- •4) Market Share Liability
- •5) Loss of a Chance
- •6) Multiple Tortfeasors Causing Indivisible Damage
- •D. Damage
- •E. The duty of care
- •1) The Foreseeable Plaintiff (The First Branch of the Anns Test)
- •2) Policy Considerations (The Second Branch of the Anns Test)
- •The Supreme Court decision in Galaske V. O'Donnell [Note 123:
- •In its recent decision in Ryan V. Victoria (City) [Note 126:
- •F. Remoteness of damage
- •1) The Foreseeability Rule
- •G. Defences
- •1) Contributory Negligence
- •2) Voluntary Assumption of Risk (Volenti Non Fit Injuria)
- •3) Illegality (Ex Turpi Causa Non Oritur Actio)
- •4) Inevitable Accident
- •H. Remedies
- •1) Personal Injury
- •I) The Impact of the Trilogy
- •2) Death
- •3) Property Damage
- •A. Introduction
- •B. Products liability
- •1) Manufacturing Defects
- •2) The Duty to Warn
- •3) Reasonable Care in Design
- •1) The Duty of Care
- •2) The Standard of Care
- •D. Human reproduction
- •1) Prenatal Injuries
- •2) Wrongful Birth
- •3) Wrongful Life
- •4) Wrongful Pregnancy
- •E. Occupiers' liability
- •1) The Classical Common Law of Occupiers' Liability
- •2) The Modern Common Law of Occupiers' Liability
- •3) Legislative Reform
- •F. Breach of statutory duty
- •G. Pure economic loss
- •I) Foreseeable Reliance/Reasonable Reliance : The Prima Facie Duty of Care
- •II) Policy Concerns: The Issue of Indeterminacy
- •2) Negligent Performance of a Service
- •3) Relational Economic Loss
- •I) Contractual Relational Economic Loss
- •4) Product Quality Claims
- •H. Governmental liability
- •2) Negligence
- •In Rondel the House of Lords provided a number of reasons for the immunity. They included:
- •Intentional torts
- •A. Introduction
- •B. The meaning of intention
- •C. Intentional interference with the person
- •1) Battery
- •3) False Imprisonment
- •5) False Imprisonment and Malicious Prosecution
- •6) Malicious Procurement and Execution of a Search Warrant
- •7) Abuse of Process
- •9) Privacy
- •10) Discrimination
- •12) Harassment
- •13) Defences to the Intentional Interference with the Person
- •III) Defence of a Third Person
- •V) Discipline
- •VI) Necessity
- •VII) Legal Authority
- •VIII) Illegality: Ex Turpi Causa Non Oritur Actio
- •II) Contributory Negligence
- •1) Elements of Liability
- •2) Defences to the Intentional Interference with Land
- •3) Remedies
- •4) Trespass to Land and Shopping Malls
- •5) Trespass to Airspace
- •E. Intentional interference with chattels
- •1) Trespass to Chattels
- •3) Conversion
- •4) The Action on the Case to Protect the Owner's Reversionary Interest
- •5) An Illustrative Case: Penfold's Wines Pty. Ltd. V. Elliott
- •6) The Recovery of Chattels
- •F. Intentional interference with economic interests
- •1) Deceptive Practices
- •II) Conspiracy to Injure by Unlawful Means
- •I) Direct Inducement to Breach a Contract
- •II) Indirect Inducement to Breach a Contract
- •Intentional Interference with the Person
- •Barry j. Reiter Melanie a. Shishler
- •1) Elements of Liability
- •2) Defences
- •Barry j. Reiter Melanie a. Shishler
- •1) The Elements of Liability
- •3) Dogs
- •4) The Scienter Action and Negligence
- •Barry j. Reiter Melanie a. Shishler
- •1) Elements of Liability
- •2) Defences
- •Barry j. Reiter Melanie a. Shishler
- •2) Principal and Agent
- •3) Statutory Vicarious Liability
- •4) Independent Contractors
- •In Lewis (Guardian ad litem of) V. British Columbia, [Note 50:
- •5) Liability of the Employee or the Agent
- •Barry j. Reiter Melanie a. Shishler
- •Chap.6 Contents
- •1) Physical Damage to Land
- •2) Interference with Enjoyment and Comfort of Land
- •7) Defences
- •8) Remedies
- •1) The Definition of a Public Nuisance
- •A. Introduction
- •2) Reference to the Plaintiff
- •3) Publication
- •E. Defences
- •2) Privilege
- •3) Fair Comment on a Matter of Public Interest
- •F. Remedies
- •H. The next challenge: political speech
- •A. Introduction
- •1) Contract Law and Tort Law
- •2) Fiduciary Law and Tort Law
- •3) Restitution and Tort Law
- •C. Public law
- •1) The Charter of Rights and Freedoms and Tort Law
- •A. The centrality of the tort of negligence
- •B. The dynamism of the tort of negligence
- •C. Generalization and integration
- •D. Reform and modernization
- •E. The triumph of compensation and loss distribution policies
- •Ison, t.G., The Forensic Lottery: a Critique on Tort Liability as a System of Personal Injury Compensation (London: Staples Press, 1967)
- •Intentional conduct of a public official in abuse of her power, or knowingly beyond the scope of her jurisdiction, causing damage to the plaintiff.
- •Preface
- •Philip h. Osborne
2) Defences to the Intentional Interference with Land
There are three important defences to trespass to land: consent, necessity, and legal authorization.
a) Consent
There is no liability in trespass to land where the possessor has consented to another entering his land. Consent to enter property is commonly known as a licence. A licence may be express or implied, contractual or gratuitous, and given to an individual, a group, or the world. When a licence is given for a particular purpose, an abuse of that purpose may terminate the licence. For example, the licence of a housesitter is likely terminated if the premises are used as a crack house or a gambling establishment.
Gratuitous licences are revocable at will but there is some doubt surrounding the revocability of a contractual licence for a particular purpose and for a limited duration. The situation most commonly arises in respect of contractual licences to see theatrical performances, movies, and sporting events. The conventional view is that, in the absence of misconduct or any breach of management rules by the licensee, his licence is irrevocable. [Note 111: Davidson v. Toronto Blue Jays Baseball Ltd. (1999), 170 D.L.R. (4th) 559 (Ont. Gen. Div.).] Imagine, for example, that a contractual licence to see a movie is revoked by the owner in breach of the contract. The licensee refuses to leave the theatre and reasonable force is used to eject him. The owner will be liable in battery on the grounds that the licence could not be revoked, the licensee never became a trespasser, and no privilege to use reasonable force to remove him arose.
A few provinces have legislation that empowers a court to issue a judicial licence in narrow circumstances. It arises where a house is built so close to the boundary line that its owner cannot carry out repairs without entering the adjoining property. If the adjoining owner refuses to give a licence to enter his property, an application may be made for an order permitting entry for the purpose of effecting the repairs. [Note 112: See, for example, Property Law Act, R.S.B.C. 1996, c. 377, s. 34.]
b) Necessity
A trespass to land may be justified on the grounds that a situation of danger and emergency arose and it was necessary to commit a trespass to land to prevent harm to the public, the trespasser, the possessor of the land, or a third party which significantly outweighed the damage or loss caused to the innocent plaintiff. [Note 113: Klar, above note 8 at 122-23, lists these four situations. ] Illustrations of each situation are, respectively, the destruction of premises to prevent the spread of fire to an urban area (public benefit), trespassing on the land of another to prevent a spread of fire onto the trespasser's own land (trespasser's benefit), trespassing on land to extinguish a fire on the possessor's land to prevent more extensive damage to the possessor's land (possessor's benefit), and trespassing on land to save the life of a stranger drowning in the possessor's swimming pool (third party's benefit). The wrongful acts must be prompted by imminent peril and must be necessary in the light of the advantage to be gained and the absence of other available options.
There is, however, no consensus on whether necessity is a complete or an incomplete defence. A complete defence negates all liability and allocates the loss to the innocent plaintiff. An incomplete defence excuses the wrongfulness of the act, disallows any self-help remedy to eject the trespasser, and prevents an award of nominal or punitive damages, but it also requires the defendant to pay compensation for any damage caused to the plaintiff. It is unlikely that either view will be suitable for all situations and the extent of protection is likely to be tailored to the particular circumstances of each case.
c) Legal Authorization
There are a wide range of circumstances where entry onto land is statutorily authorized. This arises most frequently in respect of the administration of criminal justice. Entry for the purposes of executing a warrant for the arrest of a person or a warrant to search premises are two examples where trespass to land will be protected by legal authorization. There is also a range of other legislation which permits public officials to enter premises for a variety of purposes, including determining land valuation for taxation purposes and checking compliance with health regulations and building codes.
A special protection is provided to the possessor where a person who enters onto property with legal authority abuses or exceeds his authority. The doctrine of trespass ab initio applies and the entry is deemed to be wrongful from the moment of entry. The abuse of a contractual licence may terminate it from the point at which the abuse occurs but the doctrine of trespass ab initio does not apply.