|
|
| Line 71: |
Line 71: |
| ==== f) Unjust Enrichment ==== | | ==== f) Unjust Enrichment ==== |
| Where the defendant was enriched by committing a wrong against the claimant, the claimant suffered a corresponding loss, and there was no juristic reason for the enrichment. | | Where the defendant was enriched by committing a wrong against the claimant, the claimant suffered a corresponding loss, and there was no juristic reason for the enrichment. |
|
| |
| === 3) Causes of action to see a lawyer about ===
| |
|
| |
| ==== a) Assault ====
| |
| Contrary to its criminal law equivalent, civil assault is defined as intentionally causing the claimant to have reasonable grounds to fear immediate physical harm. Mere words or verbal threats are not sufficient; there must be some sort of act or display that suggests the defendant intends to carry through with their threat; banging on a door or raising a fist may suffice.
| |
|
| |
| ==== b) Battery ====
| |
| Battery is defined as any intentional and unwanted touching, including hitting, spitting on the claimant or cutting their hair.
| |
|
| |
| ====='''Defences:'''=====
| |
| #'''Lack of Intent:''' Battery is an intentional tort which means that the plaintiff must prove the defendant acted with intent in committing battery. The defendant need not intend to cause the plaintiff harm. Rather intent refers to the desire to engage in whatever act amounts to battery. If the defendant can show that they did not act with intent, the claim for battery will unlikely be successful. For example, if the physical contact was involuntary or an accident.
| |
| #'''Self-defence:''' The defendant can defeat a battery claim if they can show that the battery was an act of self-defence. There are three basic elements to self-defence which the defendant must prove:
| |
| :::(i) You honestly and reasonably believed that you were being or about to be subject to battery;
| |
| :::(ii) There was no reasonable alternative to the use of force; and
| |
| :::(iii) The use of force was proportional to the actual or perceived threat.
| |
|
| |
| ==== c) Breach of Privacy ====
| |
| Privacy rights are governed by the ''Privacy Act'', RSBC 1996, c 373. Two common law causes of action are codified under this act:
| |
|
| |
| *Intrusion upon seclusion: includes spying upon, observing or recording a person where they have a reasonable expectation of privacy.
| |
| *Appropriation of likeness: where a person’s personal image, including portraits, caricatures, photos or video footage, are used for commercial gain without their consent.
| |
|
| |
| Breach of privacy is outside the jurisdiction of Small Claims Court.
| |
|
| |
| ==== d) Defamation ====
| |
| Defamation, libel and slander are outside the jurisdiction of Small Claims Court.
| |
|
| |
| ==== e) Detinue ====
| |
| Detinue occurs when the defendant possesses goods belonging to the claimant and refuses to return them. There is some overlap between detinue and conversion, but conversion still applies where the defendant no longer has goods, while detinue generally does not. The remedy for detinue may be the return of the goods or damages for the value of the goods and possibly for losses incurred by the detention of the goods. The value of the goods is assessed at the time of the trial.
| |
|
| |
| ==== f) False Imprisonment/False Arrest ====
| |
| Where a person is illegally detained against their will. Peace officers have broad authority to arrest. Private citizens, including security guards, have limited authority to arrest in relation to a criminal offence or in defence of property. Usually, a party who is detained and is not convicted of the offence for which they are detained has grounds for a claim in false imprisonment/arrest unless the defendant is a peace officer or was assisting a peace officer in making the arrest.
| |
|
| |
| ==== g) Negligence ====
| |
| Negligence is a complicated but frequently litigated area of law. Put very simply, it is based on the careless conduct of the defendant resulting in a loss to the claimant. Claims in negligence may be for personal injury or for economic loss. Claimants are advised to consult a lawyer before bringing a claim in negligence. Negligence consists of the following components:
| |
|
| |
| :1. '''Duty of Care''' – the claimant must prove that the defendant owed them a duty of care arising from some relationship between them. Many duties of care have been recognized, including but by no means limited to the following:
| |
| ::(a) Duty towards the intoxicated
| |
| ::(b) Peace officer’s duty to prevent crime and protect others
| |
| ::(c) Negligent Infliction of Psychiatric Harm/Nervous Shock
| |
| ::(d) Manufacturer’s and Supplier’s Duty to Warn
| |
| ::(e) Negligent Performance of a Service
| |
| ::(f) Negligent Supply of Shoddy Goods or Structures
| |
| ::(g) Negligence of Public Authority
| |
| :2. '''Standard of Care''' – Once a duty of care is established, the level of care that the defendant owed to the claimant must be determined. This is usually based on the standard of care that a reasonable person would exercise, such as avoiding acts or omissions that one could reasonably foresee might cause the claimant a loss or injury. The level of care expected of professionals in the exercise of their duties is usually higher.<BR>
| |
| :3. '''Causation''' – The claimant must show that the defendant’s carelessness actually caused the claimant loss or injury. The basic test is whether the claimant’s loss would not have occurred without the defendant’s action and no second, intervening act occurred that contributed to the loss.<BR>
| |
| :4. '''Remoteness''' – Remoteness is a consideration of whether the loss caused by the defendant’s actions was too remote to be foreseeable as a result of the defendant’s negligence. If so, the court may not award damages for the loss even though it was a direct result of the defendant’s carelessness.<BR>
| |
| :5. '''Harm''' – Unlike some causes of action, negligence requires the claimant to prove that the defendant’s carelessness caused them harm, whether it is personal injury, pure economic loss or otherwise.
| |
|
| |
| ==== h) Misrepresentation ====
| |
| Misrepresentation applies where a claimant was induced to enter a contract on the basis of facts cited by the defendant that turned out to be untrue. Misrepresentation can be claimed in contract law or in torts generally, or in both concurrently. In contract law, the remedy is a declaration that the contract is void (rescission). In torts, the remedy may be damages for the claimant’s consequential losses. If the claim is brought in contracts, a distinction must be made between representations, which are statements that induce one to enter a contract, and the terms of the contract, the violation of which gives rise to a claim in breach of contract but not in negligence. There are three specific categories of misrepresentation:
| |
|
| |
| *'''Fraudulent misrepresentation''' – where the defendant made the statement knowing it was untrue. This is the hardest category of misrepresentation to prove, as the claimant must prove the defendant’s state of mind prior to the formation of the contract.
| |
| *'''Negligent misrepresentation''' – where the defendant made the untrue statement carelessly, without regard to whether it was true. This category of misrepresentation is more easily proved than fraudulent misrepresentation. See the section on Negligence below for the basic principles.
| |
| *'''Innocent misrepresentation''' – where the defendant made the untrue statement in the genuine belief that it was true. This form of misrepresentation is the easiest to prove, but it may only be claimed in contract law, so the remedy for a successful claim is always the setting aside of the contract (rescission).
| |
|
| |
|
| === 4) Excluded Causes of Action === | | === 4) Excluded Causes of Action === |