03 THE LAW OF TORTS
WEEK 1
Professor Sam Blay
THE LECTURE STRUCTURE
 Texts
 Definition, aims and scope of law of torts
 Intentional torts
TEXT BOOKS
Dominic Villa Annotated Civil Liability Act
Lawbook Co. (2013)
Balkin and Davis The Law of Torts 5th Ed
LexisNexis
Luntz & Hambly, Torts - Cases and
Commentary, 7th ed. LexisNexis,
Stewart and Stuhmcke, Australian Principles
of Torts Law Federation Press, 3rd Ed
Blay, Torts in a Nutshell LBC
https://www.youtube.com/watch?v=tUkEq0taW
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INTRODUCTION
DEFINITION: THE NATURE OF
TORTS
WHAT IS A TORT?
 A tort is a civil wrong
 That (wrong) is based a breach of a
duty imposed by law
 Which (breach) gives rise to a
(personal) civil right of action for for
a remedy not exclusive to another
area of law
Discussion/Question
• Tort and Crime
–How does a tort differ from a
Crime?
THE DIFFERENCE BETWEEN A
TORT AND A CRIME
 A crime is a public /community wrong that
gives rise to sanctions usually designated in
a specified code. A tort is a civil ‘private’
wrong.
 An action in criminal law is usually brought
by the state or the Crown. Tort actions are
usually brought by the victims of the tort.
 The principal objective in criminal law is
punishment. In torts, it is compensation
THE DIFFERENCE BETWEEN A
TORT AND A CRIME
•
Differences in Procedure:
–
Standard of Proof
Criminal law: beyond reasonable
doubt
• Torts: on the balance of probabilities
•
TORT
CRIME
A civil action
A criminal action
Brought by the victim
Brought by the Crown
Remedy: compensation
Remedy: punishment
Proof: balance of probabilities
Proof: beyond reasonable doubt
Question
• Are there any similarities between
a tort and a crime?
SIMILARITIES BETWEEN TORTS
AND CRIME
 They both arise from wrongs imposed by
law
 Certain crimes are also actionable torts; eg
trespass: assault
 In some cases the damages in torts may be
punitive
 In some instances criminal law may award
compensation under criminal injuries
compensation legislation.
TORT and CRIME
• The "roots of tort and crime" are "greatly
intermingled". And it is not only the roots of tort and
crime that are intermingled. The increasing
frequency with which civil penalty provisions are
enacted, the provisions made for criminal injuries
compensation, the provisions now made in some
jurisdictions for the judge at a criminal trial to order
restitution or compensation to a person suffering loss
or damage (including pain and suffering) as a result
of an offence all deny the existence of any "sharp
cleavage" between the criminal and the civil law. (
Per GLEESON CJ, McHUGH, GUMMOW AND HAYNE JJ. In Gray v Motor
Accident Commission )
TORTS DISTINGUISHED FROM
BREACH OF CONTRACT
• A breach of contract arises from breach
of promise(s) made by the parties
themselves.
TORTS
CONTRACT
Damages unliquidated
Damages often liquidated
Protects what is already
owned or possessed
Protects expectation of
future benefits
Duty imposed by law
Duty arises from parties’
promises
Duty owed generally
Duty to other contracting
party
SIMILARITIES BETWEEN TORT
AND CONTRACT
• Both tort and breach of contract
give rise to civil suits
• In some instances, a breach of
contract may also be a tort: eg an
employer’s failure to provide
safe working conditions
Questions
• What are the objectives of tort
law?
THE OBJECTIVES OF TORT LAW
Loss distribution/adjustment: shifting losses from victims to perpetrators
Compensation: Through the award of (pecuniary) damages
• The object of compensation is to place the victim in the position he/she was before the
tort was committed.
Punishment: through exemplary or punitive damages. This is a
secondary aim.
Question
• What interests are protected by the
Law of Torts, and how are these
interests protected?
INTERESTS PROTECTED IN
TORT LAW
Personal
security
• Trespass
• Negligence
Reputation
Property
• Defamation
• Trespass
• Conversion
Economic
and
financial
interests
SOURCES OF TORT LAW
• Common Law:
– The development of torts by precedent through the
courts
• Donoghue v Stevenson
• Statute:
– Thematic statutes: eg Motor Accidents legislation
• Motor Accidents Compensation Act 1999
– General statutes: eg Civil Liability legislation
• The Civil Liability Act (NSW) 2002
ACTIONS IN TORT LAW
Trespass
• Directly caused injuries
• Requires no proof of
damage ( actionable per
se)
Action on the
Case/Negligence
• Indirect injuries
• Requires proof of damage
LIABILITY IN TORTS
LIABILITY IN TORT LAW
• Liability = responsibility
• Liability may be based on fault or it
may be strict
• Fault liability: the failure to live up to a
standard through an act or omission .
TYPES OF FAULT LIABILITY
Intentional
Fault
Negligence
Intention in Torts
Deliberate or wilful conduct
‘Constructive’ intent: where the
consequences of an act are
substantially certain: t
Where conduct is reckless
Transferred intent: where D
intends to hit ‘B’ but misses
and hits ‘P’
Negligence in Torts
• When D is careless in his/her
conduct
• When D fails to take reasonable care
to avoid a reasonably foreseeable
injury to another and that party
suffers damage.
STRICT LIABILITY
• No fault is required for strict liability