Intentional Torts

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

265

CHAPTER 4

INTENTIONAL TORTS

A. INTRODUCTION

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 (land and chattels), and economic interests. The

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

more than the degree of culpability 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 will enhance an understanding of the nature and function

of the intentional torts.

The tort of negligence is a modern tort. It is essentially a product

of the twentieth century. The basic structure of some of the nominate

intentional torts is centuries old. While there was some modif‌ication

of them in the twentieth century, 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 primarily 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 damage. This

ref‌lects the cautious and incremental development of the early com-

mon law, which focused on discrete categories of wrongs with clearly

identif‌iable boundaries.

THE LAW OF TORTS266

The tort of negligence is characterized by general principles and the

use of highly discretionary concepts such as reasonableness and foresee-

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

more precise, narrow, and rigid than the negligence principles. Indeed,

some seem to have been elevated to a status akin to statutory provisions.

The tort of negligence underwent a transition in the twentieth cen-

tury from a limited number of duties of care arising from discrete cat-

egories of relationships to an unlimited number of duties arising from

a general conception of relationships based on the reasonable foresee-

ability of harm to others. This 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 principles.

The tort of negligence is dynamic, expansionary, and largely

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

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

tional torts. The intentional torts tend to be static and are, in the main,

characterized by convention, orthodoxy, and conservatism. The courts

have been slow to discard historical technicalities, 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 legislation policing the marketplace.

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 loss-shifting system

emphasizing corrective justice and allocating responsibility between the

individual litigants. This enhances the punitive, deterrent, and educa-

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

on the accountability of individual defendants for culpable wrongdoing.

The downside of the absence of liability insurance is that the victims of

intentional wrongdoing are much less likely to receive adequate compen-

sation for their losses. Consequently, the victims 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 alternative means of compensation depends greatly on

the kind of damage that is suffered. Persons suffering physical injury

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

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

on the social welfare system. Those who suffer intentional property loss

Intentional Torts267

or damage will often have f‌irst-party insurance and generally 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 damages.

All these characteristics of the intentional torts have a subtle but

signif‌icant effect on the amount of litigation arising from intentional

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

pensatory vehicles, and on the general vitality of this area of tort law.

B. THE MEANING 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 risk 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 injure him. The

injury is said to be caused with actual intent. Conduct is also 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 inf‌liction of harm to B by claiming

that he meant to hit C. He knew that it was substantially certain 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 constructive or imputed intent.

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 Piresferreirav Ayotte, 2010 ONCA 384

[Piresferreira].