Intentional Torts

• Author: Philip H. Osborne
• Pages: 265-360

265

CHA PTER 4

INTENTIONAL TORTS

A. INTRODUC TION

The tort of negligence is complemented by a number of independent,

named (nominate) torts that deal with t he intentional interference with

the person, property (la nd and chattels), and economic interests. The

tort of negligence and the intentional torts are, however, divided by

more than the degree of culpabilit y of the defendant’s conduct. There

are signif‌icant di fferences in form, substance, and policy between these

two regimes of tortious responsibility. Identif‌ication of some of these

differences wil l enhance an understanding of the nature and function

of the intentional torts.

The tort of negligence is a modern tort. It is essenti ally a product

of the twentieth century. The basic structure of some of the nomin ate

intentional torts is centuries old. While there was some modif‌icat ion

of them in the twentieth centur y, the general outlines of liability have

been clear for a long time.

The tort of negligence is a tort of broad and general application.

It focuses primar ily on the quality of the defendant’s conduct and is,

consequently, inherently ubiquitous in its range of application. Most of

the intentional torts are quite narrow in scope. They are restricted to

closely def‌ined fact patterns and particular categories of da mage. This

ref‌lects the cautious and incremental development of the early com-

mon law, which focused on discrete categories of wrongs with clea rly

identif‌iable boundarie s.

THE LAW OF TORTS266

The tort of negligence is characterized by general principles and the

use of highly discret ionary concepts such as reasona bleness and foresee-

ability. The nominate intentional torts a re def‌ined by rules that tend to be

more precise, narrow, and rigid than t he negligence principles. Indeed,

some seem to have been elevated to a status ak in to statutory provisions.

The tort of negligence underwent a transition in the t wentieth cen-

tury from a limited number of duties of care arising from di screte cat-

egories of relationships to an unli mited number of duties arising from

a general conception of relationships based on the rea sonable foresee-

ability of harm to others. Thi s process has not occurred in the inten-

tional torts. The courts have been slow in generalizing and integrating

the discrete intentional torts into a more coherent and cohesive system

of general pri nciples.

The tort of negligence is dynamic, expa nsionary, and largely

ref‌lective of current public attitudes and policies. It displays a vitality

and capacity for vigorous growth th at is not mirrored in the inten-

tional torts. The intentional tort s tend to be static and are, in the mai n,

characterized by convention, orthodoxy, and conservatism. The courts

have been slow to discard hi storical technicalitie s, and there has been

a reluctance to recognize new interests deserving of protection from

intentional interference such as the intere sts in privacy, equality, peace

of mind, dignity, and fair market practices. This has prompted some

legislatures to f‌il l the void w ith privacy legislation, human rights codes,

and legisl ation policing the marketpl ace.

Liability insurance and loss distribution policies are central to the

development, operation, and expansion of the tort of negligence. As a

rule, liability in surance does not cover intentional damage. Consequently,

the intentional torts operate more as a conventional los s-shifting system

emphasizing corrective justice and allocating responsibility between the

individual litigant s. This enhances the punit ive, deterrent, and educa-

tional functions of the intent ional torts and encourages a greater emphasi s

on the accountability of individual defenda nts for culpable wrongdoing.

The downside of the absence of liability in surance is that the v ictims of

intentional wrongdoing are much less likely to receive adequate compen-

sation for their losses. Consequently, the victim s of intentional wrong-

doing are forced to place much more reliance on their own f‌irst-party

(loss) insurance and on governmental compensation schemes. The avail-

ability of these altern ative means of compensation depends greatly on

the kind of damage th at is suffered. Persons suffering physical injury

often have no f‌irst-party disability insurance and they therefore need

to rely greatly on the no-fault crim inal injury compensation schemes or

on the social welfare sy stem. Those who suffer intentional property loss

Intentional Torts 267

or damage will often have f‌irst-party insurance and general ly will have

little need to rely on tort law. Some economic losses suffered by commer-

cial entities may be covered by business interruption insurance. In the

business arena, however, defendants who cause economic loss are more

likely to be capable of paying da mages.

All these cha racteristics of the intentional torts have a subtle but

signif‌icant effect on the amount of litigation ar ising from intentional

conduct, on the practical signif‌icance of the intentional torts as com-

pensatory vehicles, and on the general v itality of this a rea of tort law.

B. THE ME ANING OF INTENTION

In tort law the culpability of the defendant’s conduct is def‌ined with

reference to the consequences of that conduct. Negligence is conduct

that gives rise to a foreseeable and substantial r isk of its consequences.

As the likelihood of the consequences increases, the conduct of the

defendant may be described f‌irst as grossly negligent and then as reck-

less.1 Conduct is not, however, intentional unless the defendant either

desires the consequences of his conduct or the consequences are sub-

stantially certain to result from the conduct.

The f‌irst def‌inition of intentional conduct is intuitive. Intent com-

monly connotes a subjective desire to cause the consequences of one’s

actions. When one person stabs another he wants to i njure him. The

injury is said to be caused with actual intent. Conduct is al so inten-

tional if the consequences, while not desired, are substantially certain

to result from the defendant’s conduct. Imagine, for example, a defend-

ant who shot into a crowd of people, hitting and injuring B. He cannot

avoid liability for the intentional inf‌lict ion of harm to B by claiming

that he meant to hit C. He knew th at it was substantially cert ain that

he would injure someone and that is suff‌icient to make the act inten-

tional.2 To excuse the defendant from liability would reward stupidity

and exclude extremely dangerous and morally culpable conduct from

the reach of the intentional tort s. In such circumstances, the defendant

is said to have constr uctive or imputed int ent.

1 These conce pts play no signif‌icant role in tor t law. At common law they are

drawn wit hin the umbrella concept of negl igence. There are, however, some

legislative prov isions that require t he proof of gross negligence or reckle ssness

in order to establ ish statutory causes of act ion.

2 The test of k nowledge is subjective: see Piresf erreira v Ayotte, 2010 ONCA 384

[Piresfer reira].