ANNUAL SURVEY OF CANADIAN LAW TORTS: PART I Colleen M. Edwards, * M. Justin Hopkins, * Donna G. White* I. INTRODUCTION ......................................................... 155 II. INTENTIONAL TORTS ................................................... 155 A. Assault and Battery ............................................... 155 B. False Imprisonment and Malicious Prosecution ............. 157 C. Conversion and Detinue ......................................... 159 D. Trespass to Land .................................................. 160 III. DEFENCES TO INTENTIONAL TORTS ................................. 161 A. Justification and Lawful Authority ............................. 161 B . Consent .............................................................. 163 C. Provocation ........................................................ 164 IV. NEGLIGENCE ............................................................ 164 A. Standardof Care .................................................. 164 1. ProfessionalNegligence ..................................... 164 (a) Legal Malpractice ........................................ 165 (i) Barristers' immunity .............................. 165 (ii) Cause of action ..................................... 168 (iii) Property transactions ............................. 172 • Of the Board of Editors (1981-82). 1982] Torts 153 (b) Medical Malpractice .................................... 173 (i) Informed consent .................................. 174 Form of action ...................................... 175 Standardof disclosure ............................ 177 Standardfor causation ........................... 181 (ii) Inherently dangerous drugs ..................... 183 (iii) Psychiatricnegligence ............................ 184 2. Schools .......................................................... 186 3. The Young ...................................................... 1 87 4. The Disabled ................................................... 189 B. Proofof Negligence ............................................... 189 1. Res Ipsa Loquitur. ............................................. 189 (a) Medical Malpractice ..................................... 189 (b) ProductsLiability . ....................................... 190 C . D u t '. ................................................................. 19 1 1. A R estatement .................................................. 191 2. Crown LiabilitY ............................................... 192 3. Municipalities .................................................. 193 4. N ew D uties ..................................................... 194 D . Causation ........................................................... 196 1. Cause-in-Fact .................................................. 196 2. Multiple Causes ............................................... 198 E. Remoteness and Proximate Cause .............................. 200 1. Type of DamnagelPossibilityof Damage ................... 200 2. The Thin-Skull Problem ........................ 204 3. Intervening Negligent Medical Treatment ........... 205 4 Ottawa Law Review [Vol. 14:152 4 . R escuers ......................................................... 206 5. Escaped Convicts .............................................. 207 V. DEFENCES TO NEGLIGENCE ........................................... 208 A. ContributoryNegligence ........................................ 208 B. Volenti Non Fit Injuria ........................................... 212 C. Inevitable Accident ................................................ 216 D . Illegalit) . ........................................................... 2 17 1982] Torl% I. INTRODUCTION Since the last survey was published in 1977.' tort law has developed significantly in a number of respects. The continuing extension of liability for professional negligence, most significantly in the areas of legal and medical malpractice. has figured prominently throughout this survey period.2 Elsewhere in the law of negligence, certain classic concepts have been altered by the importation of recent changes from England. In the field of occupiers' liability, several important legislative changes have occurred. generally simplifying a rather obscure and technical subject. The tort of discrimination has come and gone. Finally, the law of damages has undergone extensive modifications in both personal injury and fatal accident cases. The Supreme Court of Canada has introduced a new approach with respect to the assessment of quantum of damages as well as principles and guidelines that have been "'fine-tuned" by later decisions. II. INTENTIONA- TORTS A. Assault and Battery The area of intentional torts has not witnessed a great deal of growth in recent years. However, in Bettel v. Yirn3: the court was called upon to evaluate the relevance of foreseeability of damage in the domain of intentional torts. The plaintiff, who was fifteen years old at the time, had been loitering around the defendant's store with a group of friends, throwing lighted matches into the store. One of the matches thrown by the plaintiff ignited a bag of charcoal on the floor just inside the door. The defendant then grabbed the plaintiff firmly by the collar with both hands and proceeded to shake him in order to obtain a confession. During the shaking the defendant's head came into contact with the plaintiffs nose, severely injuring it. While the plaintiff's action was framed in assault, Borins J. approached the matter as a batter), action, stating that "in Canada it would appear that the distinction between assault and battery has been blurred and when one speaks of an assault, it may include a battery." 4 His Honour recited the principle, enunciated in Cook ' Binchy, Annual SurveN 0/ ('anadian lai Frlt - I II, 9 O 1 -x L R-%, 192. 339 (1977). 2 This survey covers cases reported between Jun. 1977 and No% 1981 Specifically, the following law reports were searched: D.L.R. (3d). Volumes 73-123. W.W.R.. volumes [ 19771 1 -11981] 5: N.R.. %olumes 12-38. Cases reported elsewhere that are included in the survey were identified through secondary sources. In addition to periodical literature, a significant source of general information suas C \W'RIl(hT & A. LINDEN. CANADIAN TORT LA\%: CASES. NOTES AND MATIRIA S (7th ed. 1980). 3 20O.R.(2d)617.5C.C.L.T. 66. 88 D.L.R. (3d) 543Ct% Ct. 1978) Id. at 621.5 C.C.L.T. at 73.88 D.L.R. (3d) at 547 Ottawa Law Review (Vol. 14:152 v. Lewis,5 that once the plaintiff establishes that he was injured by the defendant the defendant will be liable unless he can successfully prove the lack of both intention and negligence on his part. In this case, while Yim had intentionally applied force to the plaintiff by grabbing and shaking him, the defendant's collision with the plaintiff's nose was clearly unintentional. The task before the court was to decide whether the two actions should be regarded as separate and distinct, rendering the defendant liable only for consequences which he intended or which were reasonably foreseeable results of the application of force, or whether the defendant should bear the responsibility for all the consequences which flowed from his intentional interference with Bettel's person. After an exhaustive review of the relevant authorities, Borins J. imposed liability on the basis that the defendant had committed a battery by grabbing the plaintiff. Although Yim did not subjectively intend to strike the plaintiff's nose, it was the end result of a chain of events set in motion by the defendant. The logical test is whether the defendant was guilty of deliberate, intentional or unlawful violence .... If he was, and a more serious harm befalls the plaintiff than was intended by the defendant, the defendant, and not the innocent plaintiff, must bear the responsibility for the unintended result. If physical contact was intended, the fact that its magnitude exceeded all reasonable or intended expectations should make no difference .... To import negligence concepts into the field of intentional torts would be to ignore the essential difference between the intentional infliction of harm and the unintentional infliction of harm resulting from a failure to adhere to a reasonable standard of care and would result in bonusing the deliberate wrongdoer who strikes the plaintiff more forcefully than intended .... Thus, the intentional wrongdoer should bear the responsibility for the injuries caused by his conduct and the negligence test of 'foreseeability' to limit, or eliminate, liability should not be imported into the field of intentional torts.; In Hatton v. Webb7 the court discussed the burden of proof upon a defendant in a battery case to establish the absence of both intention and negligence. The plaintiff, who worked as a waitress in a coffee shop, was sitting in a booth writing notes. There were no customers in the establishment except for the defendant, with whom the plaintiff had a friendly relationship. The defendant, who was seated some thirty feet from the plaintiff, asked her to come and sit with him. When she failed to answer, he rolled up a damp towel and threw it in her general direction. The towel hit the plaintiff in the back of the neck, causing her head to go forward. The defendant apologized and insisted that he had not meant to hit the plaintiff. The court applied the rule in Cook v. Lewis,8 and 1[19511 S.C.R. 830,1952] 1 D.L.R. 1 (1951). Supra note 3, at 629, 5 C.C.L.T. at 83, 88 D.L.R. (3d) at 554-55. S7 A.R. 303. 81 D.L.R. (3d) 377 (Dist. C. 1977). 8 Supra