Cases - tort law - mod 12 Flashcards
1
Q
Bettel v yim - battery
A
- after being asked to leave the defendants variety store, the 15 year old plaintiff, along with a group of other boys, proceeded to throw lit matches into the store
- The defendant noticed a bag of charcoal had caught on fire
- when the plaintiff denied setting the fire, the defendant grabbed him by the collar and began shaking him in order to obtain a confession
- The defendants head accidentally struck the plaintiffs nose
- the plaintiff suffered injuries and sued the defendant
- The plaintiff must prove that their injury was a direct result of the defendants act
- it was concluded that the defendant committed the intentional tort of battery
- what happens if the consequences are more serious than what the defendant intended? Where the defendant intends to commit a battery, they are responsible for the consequences even if they are more serious than intended
2
Q
Holcombe v. Whitaker
A
- The plaintiff claimed that the defendant committed an assault when in June, she went to see him and tried to get him an annulment, he said if you take me to court I will kill you, and again in October, after she filed the instant suit on September, when he went to her apartment and beat on the door, tried to pry it open, and said again, if you take me to the court I will kill you
- The defendant claims this cannot constitute an assault, because it was merely a conditional threat of violence and because no overt act was involved
- while words standing alone cannot constitute an assault, they may give meaning to an act and both, taken together, may constitute an assault
- The plaintiff was frightened by the defendant, she asked her friends to stay with her the night and never left the apartment alone after the threats on her life
- she won
3
Q
Campbell v. Kresge
A
- The plaintiff was in the Kmart of store of the corporate defendant to do some Christmas shopping
- she left the cart with several items in it and proceeded out the main door of the shop
- The defendant was a member of the police force and was employed by Kmart as a security officer with his responsibility was the protection of the defendants property and catching shoplifters
- someone told the police officer they thought they had seen the plaintiff put something in her coat pocket
- he then followed the plaintiff outside and confronted her in the parking lot
- he asked her to go back into the store, she offered her purse to the officer claiming that there was nothing in it that belonged to the store and offered to be searched
- at this point the officer let her leave the store
- she was very upset by this encounter and then returned to the store to speak with a manager
- The plaintiff alleges that she was greatly upset by this experience and suggests that she was additionally embarrassed that it took place in the presence of many members of the public
- The damages she suffered are limited to her personal inconvenience and upset arising from the incident ($500) as the officer was discrete
4
Q
Wright v. McLean (consent)
A
- four boys were playing with mud balls
- The infant defendant was passing by on his bicycle delivering the paper one of these mud balls or lumps came up around infant defendant and another he says went through the spokes of his wheel on his bicycle he was riding
- they invited him to play the game
- then a lump hit the infant plaintiff thrown by McLean
- it is agreed by all the boys that the fighting was not carried out in anger and that there was no malice
- McLean apologized, they did not think it was serious, he said he would not deliberately pick up a rock or stone and he did not intend to do so
- in all the circumstances where it is agreed that there was no ill will and where the evidence shows that the defendant was invited to join the game by the others, then no liability arises from culpable carelessness (case dismissed)
5
Q
R v. Cuerrier
A
- Courier knew he was HIV positive, but nevertheless he repeatedly had intercourse, mostly unprotected, with the first and second complainant
- The accused told the first complainant that he had tested negative for HIV and did not respond to the second complainant’s expressed concerns about STDs
- The accused was charged with two counts of aggravated assault
- The trial judge acquitted the accused on the basis that only fraud as to the nature of the act or the offenders identity could vitiate consent to intercourse
- The Supreme Court of Canada overturned the decisions and ordered a new trial
- The court held that fraud as to the potentially harmful consequences of a sexual act could negate consent
- first, the crown had to prove that the accused was dishonest, which could result from not only lying but also non-disclosure. Second, the dishonesty had to result in actual harm or a significant risk of serious bodily harm
- The court held that the accused’s failure to disclose his HIV status prior to having unprotected intercourse constituted a sufficient risk of harm (condoms would reduce this harm to almost nothing)
- finally, the crown had to prove that the accused dishonesty induced the complainants to consent to unprotected intercourse when they would not have done so otherwise
6
Q
Norberg v. Wynrib
A
- an elderly doctor offered to continue an addicted patient’s prescription for painkillers if she submitted to his sexual advances
- The young woman only reluctantly agreed to the arrangement after she failed to secure another source of supply
- after recovering from her drug addiction, the woman sued the doctor for battery, negligence, and breach of fiduciary duty
- The Supreme Court of Canada Canada unanimously upheld the woman’s claim and awarded $20,000 in compensatory and $10,000 in punitive damages
- in deciding the case, the majority of the court held that determining whether or not there has been a legally effective consent to a sexual assault in a case such as this involves two steps: first, proof of inequality between parties, and second, proof of exploitation
- The majority found that the parties unequal power and exploitive relationship made it impossible for the woman to meaningfully consent and upheld her claim in battery
- The justices also found the doctor in breach of his fiduciary duty to his patient
7
Q
Gambriell v. Caparelli
A
- The plaintiff backed his car into the laneway, and clipped the young man’s car
- he and the plaintiff got into an oral confrontation, which escalated into a fist fight
- The plaintiff soon gained advantage, and put the young man to the ground in a chokehold
- The defendant, the young man’s 57-year-old mother, heard the commotion and came outside to investigate
- she yelled at the plaintiff to stop, but the plaintiff would not
- The defendant ran to her garden and grabbed a three prong cultivator with a 5 foot long handle, she struck the plaintiff three times on his shoulder than once on his head
- then released the defendant’s son
- when the defendant came on the scene, she saw that her son was at the mercy of the plaintiff, and was in imminent danger, she was therefore justified in using force to defend him (she used a reasonable amount of force in the circumstances)
- The court upheld the mother’s assertion of the defence of third parties and absolved her of liability
8
Q
R. V. Lavallee
A
- A battered woman shot her partner in the back of the head as he was leaving the room, he had beaten her frequently
- on that night, he physically abused and taunted her, stating that he would kill her if she did not kill him
- A psychiatrist testified that the accused shooting of the deceased was a desperate act of a woman who sincerely believed that she would otherwise be killed that night
- The supreme court of Canada restored the accused acquittal on the basis of self-defence
- it stated that the psychiatrist’s testimony was necessary to ensure that the jury understood why the accused was psychologically unable to leave and could assess the reasonableness of her belief that killing him was the only way to save her own life
9
Q
Dobson v. Dobson - this case illustrates one situation in which the Supreme Court of Canada was willing to negate liability on residual policy grounds
A
- A woman who is 27 weeks pregnant negligently caused a motor vehicle accident in which her foetus suffered prenatal injuries, resulting in premature birth
- The injuries resulted in permanent mental and physical impairment to the child, the child sued his mother in negligence for the losses and injuries he sustained in the accident
- The court apply the two stage test set out in anns v. Merton to determine if the pregnant mother or a duty of care to her foetus
- they concluded a prima facie duty of care in the circumstances
- however, as a matter of public policy, the majority held that a duty of care should not be imposed on a pregnant mother towards her fetus, as to do so would constitute an unreasonable intrusion to the bodily integrity, privacy and autonomy rights of pregnant women
- The two dissenting justices held that the mother owed a duty of care to her foreseeably injured born alive child in the circumstances
- The dissent found no policy considerations sufficient to negate the imposition of a duty of care
10
Q
Zelenko v. Gimbel
A
- The general proposition of the law is that if a defendant owes a plaintiff no duty, then refusal to act is not negligence
- The deceased took L in the defendant store, the defendant could have let her be and die, but if a defendant undertakes a task, even if under no duty to undertake it, the defendant must not omit to do what an ordinary man would do in performing the task
- here the defendant undertook to render medical aid to the deceased and kept her for six hours in an infirmary without giving any medical care, if he had left the deceased alone beyond any doubt some bystander would have summoned an ambulance
- this defendant assumed it’s duty by meddling in matters with which it legalistically had no concern
11
Q
Crocker v. Sundance
A
- The plaintiff, while drinking heavily at the defendant’s resort, decided to enter its upcoming to tube racing contest
- Crocker drank the morning of the race and got drinks from the bar. the resorts owner warned Crocker not to race, but took no other steps to prevent him from doing so
- Crocker, who was clearly intoxicated, fell just prior to the second heat and his tube slide down the hill
- at that point, a staff member confronted him and told him that he was in no condition to race
- Crocker belligerently insisted on racing and the staff provided him with another tube. during the race he was thrown from his tube, fell on his neck and was rendered a quadriplegic
- The Supreme Court of Canada unanimously held the resort liable on two bases. First, the resort was held liable as an alcohol provider because it continued to provide alcohol to Crocker even though it knew he was already intoxicated. Second, the court held the resort liable as the sponsor of a potentially dangerous competition, for breaching its duty to take all reasonable steps to prevent Crocker from participating in his intoxicated condition
12
Q
Mustafic v smith
A
- mr. M was voluntarily admitted to a psychiatric facility
- The treating physician suspected that he suffered from mild depression and anxiety, but needed further observation before making a final diagnosis
- The following day, it was decided that Mr. M should be given day passes since, as a voluntary patient, he could leave the facility at any time
- on his second visit home to see his family, the patient picked up his two children, shot them both and then committed suicide
- One child survived but was disabled the children’s mother sued the doctor, alleging that he had been negligent in issuing her husband’s day passes given that no final diagnosis had been made
- The court held that Mr. M‘s contact was not foreseeable as he had not evidenced any suicidal or homicidal tendencies
- consequently, the doctor could not be held liable in negligence
13
Q
C.D. V Newfoundland
A
- The plaintiff had been physically abused by her foster mother for about 12 years and sexually abused by the mothers brother
- The social worker who was supposed to monitor the home had a close relationship with the foster parents, had no time for the plaintiff and was generally unpleasant to her
- when the plaintiff complained of abuse, the social worker was contacted, but she did not believe the plaintiff and took no action
- After the second complaint, four months later they interviewed the foster parents and the foster children. The social worker then confronted the plaintiff and bullied her into recanting her allegations
- The abuse continued and although the situation in the foster home deteriorated, the director of child welfare left the plaintiff in the home for six months
- The plaintiff was transferred to a second foster home, where she began to be sexually assaulted by her second foster father
- The plaintiff sued her first foster parents, the first social worker and the director of child welfare
- The court held the first social worker liable and negligence for failing to reasonably monitor the home, for taking no action in the four months following the first allegation of abuse, and for her bias intervention following the second allegation of abuse
- The director of child welfare was held liable for the first social workers negligence and for leaving the plaintiff in the foster home for six months after the situation had obviously deteriorated
14
Q
Hendrick v. De marsh
A
- A probation and parole officer made arrangements for an offender to board with the plaintiffs upon his release from jail
- The officer did not advise the plaintiffs that the offender had history of arson, while staying with the plaintiffs the offender intentionally started a fire which caused considerable damage to the plaintiffs townhouse
- The plaintiffs action was dismissed because of limitation for bringing the suit had passed
- however, the court did recognize that the officer and ministry owed the plaintiffs a duty of care, which they negligently breached by failing to warn the plaintiffs of the offenders history of arson
15
Q
Bolton v. Stone
A
- person on a side road of residential houses, was injured by a ball hit by a player on a cricket ground abutting that highway
- there was evidence that while over a period of years balls have been struck over the fence on very rare occasions, the hit now in question was all together exceptional
- Counsel for the respondent in this case had to put his case so high to say that, at least as soon as one ball had been driven into the road in the ordinary course of a match, the appellants could and should have realized that might happen again and that, if it did, someone might be injured and that was enough to put on the appellants duty to take steps to prevent such an occurrence
- in my judgement the test to be applied here is whether the risk of damage to a person on the road was so small that a reasonable man in the position of the appellant’s, considering the matter from the point of safety, would have thought it right to refrain from taking steps to prevent the danger
