Tort Law – Principles of Liability

BY: Edwin Durbin, B. Comm., LL.B., LL.M. of the Ontario Bar

Part II: Principles of Liability

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II.1.(a):  Principles of Liability - Standard of Liability - Intention

Under certain causes of action, the plaintiff must establish that the defendant intended to cause the plaintiff’s injury. Intent may be established by showing that the defendant desired to cause certain consequences that were the result of his or her act or that the defendant believed certain consequences were certain to result from that act.

In some intentional torts the onus may be placed on the defendant to disprove intention after the plaintiff has established the basic elements of the cause of action. Constructive intent, where the intention of the defendant is presumed in the absence of evidence to the contrary, may arise as the relevant standard of liability.

In addition, it has been said that a defendant may be held liable for an intentional tort on the basis of transferred intent: when the defendant intends to do one thing, such as injure B, but fails and injures C, the intention to cause injury may be transferred from B to C to provide C with a cause of action. Therefore, where the defendant intends to commit the tort of battery, but misses the plaintiff and only causes flight, the necessary intent for the tort of assault is present.

Although intention may be a requisite to liability in certain torts and the most onerous standard of liability to establish, intention to cause injury to a person will not, by itself, found liability. An act that is legal in itself will not be made illegal because the motive of the act was bad.

II.1.(b):  Principles of Liability – Standard of Liability – Negligence

In other instances, it is sufficient for the plaintiff to establish that the defendant was negligent, that he or she had failed to adhere to an objective standard of care regardless of the actual subjective intention, in order to found liability. Negligence by itself will also not always found liability in tort. Although the defendant may have breached a duty of care to the plaintiff which has been previously recognized under the law, the damage to the plaintiff must fall within recognizable limits of remoteness and causation, and must also be of a type which is remediable under the law.

II.1.(c):  Principles of Liability – Standard of Liability – Strict Liability

In some instances, the defendant will still be held legally responsible when neither an intentional nor a negligent act is found and it is only proven that the defendant’s act did result in injury to the plaintiff.