Intentional Torts

AuthorPhilip H. Osborne
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 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.
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].

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