LAW OF TORTS
Lecture 1
Lecturer: Prof Sam Blay
Intentional Torts
- Battery
- Assault
TEXT BOOKS
• *Baker, Blay et al Torts Law in Principle LBC 4th Ed.
2005
• *Blay, Torts in a Nutshell LBC 1999
• Balkin & Davis Law of Torts (2004) 3rd Ed.
Butterworths
• Luntz and Hambly Torts Cases and Commentary
(2006) Revised 5th Ed. Butterworths
• Trindade and Cane The Law of Torts
• Fleming, The Law of Torts (1996)
LEC Torts Website
• www.usyd.edu.au/lec/subjects/torts/
/materials.htm
• Past exams & comments:
www.library.usyd.edu.au/libraries/la
w/lpab.html#exams
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
THE DIFFERENCE BETWEEN
A TORT AND A CRIME
• A crime is public /community wrong that gives
rise to sanctions usually designated in a
specified code. A tort is a civil ‘private’ wrong.
• 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
•
THE AIMS 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.
INTERESTS PROTECTED IN
TORT LAW
• Personal security
– Trespass
– Negligence
• Reputation
– Defamation
• Property
– Trespass
– Conversion
• Economic and financial interests
INTENTIONAL TORTS
•
INTENATIONAL TORTS
Trespass
Conversion
Detinue
WHAT IS TRESPASS?
• Intentional or negligent act of D
which directly causes an injury to
the P or his /her property without
lawful justification
• The Elements of Trespass:
–fault: intentional or negligent act
- injury must be direct
–injury* may be to the P or to his/her
property
- No lawful justification
*INJURY IN TRESPASS
• Injury = a breach of right, not
necessarily actual damage
• Trespass requires only proof of injury
not actual damage
THE GENERAL ELEMENTS OF
TRESPASS
Intentional/
negligent act
+
Direct interference
with person or property
+
Absence of lawful
justification
+
“x” element
=
A specific
form of trespass
SPECIFIC FORMS OF
TRESPASS
TRESPASS
PERSON
BATTERY
ASSAULT
FALSE IMPRISONMENT
PROPERTY
BATTERY
• The intentional or negligent act of
D which directly causes a
physical interference with the
body of P without lawful
justification
• The distinguishing element:
physical interference with P’s
body
THE INTENTIONAL ACT
IN BATTERY
• No liability without intention
• The intentional act = basic willful
act + the consequences.
CAPACITY TO FORM THE
INTENT
• D is deemed capable of forming
intent if he/she understands the
nature of (‘intended’) his/her act
• -Infants
–Lunatics
–Morris v Marsden
–Hart v A. G. of Tasmania ( infant cutting
another infant with razor blade)
THE ACT MUST CAUSE
PHYSICAL INTERFERENCE
• The essence of the tort is the protection of the
person of P. D’s act short of physical contact is
therefore not a battery
• The least touching of another could be battery
– Cole v Turner (dicta per Holt CJ)
• ‘The fundamental principle, plain and
incontestable, is that every person’s body is
inviolate’ ( per Goff LJ, Collins v Wilcock)
The Nature of the
Physical Interference
• Rixon v Star City Casino (D places hand
on P’s shoulder to attract his attention; no battery)
• Collins v Wilcock (Police officer holds D’s arm with a
view to restraining her when D declines to answer questions and
begins to walk away; battery)
• Platt v Nutt
THE INJURY MUST BE
CAUSED DIRECTLY
• Injury should be the immediate:
–Scott v Shepherd ( Lit squib/fireworks
in market place)
–Hutchins v Maughan (poisoned bait
left for dog)
–Southport v Esso Petroleum(Spilt oil
on P’s beach)
THE ACT MUST BE WITHOUT
LAWFUL JUSTIFICATION
• Consent is Lawful justification
• Consent must be freely given by the P if P
is able to understand the nature of the act
• Lawful justification includes the lawful act
of law enforcement officers
–Wilson v. Marshall (D accused of assaulting
police officer, held officer’s conduct not lawful)
TRESPASS:ASSAULT
•
The intentional/negligent act or
threat of D which directly places P
in reasonable apprehension of an
imminent physical interference
with his or her person or of
someone under his or her control
THE ELEMENTS OF ASSAULT
• There must be a direct threat:
–Hall v Fonceca
(Threat by P who shook hand in front
of D’s face in an argument)
• In general, mere words are not actionable
–Barton v Armstrong
• In general, conditional threats are not
actionable
–Tuberville v Savage
–Police v Greaves
–Rozsa v Samuels
THE ELEMENTS OF ASSAULT
• The apprehension must be reasonable;
the test is objective
• The interference must be imminent
– Rozsa v Samuels
– Police v Greaves
– Hall v Fonceca
– Zanker v Vartzokas
(P jumps out of a moving van to
escape from D’s unwanted lift)
THE GENERAL ELEMENTS OF
TRESPASS
Intentional/
negligent act
+
Direct interference
+
Absence of lawful
justification
+
“x” element
=
A specific
form of trespass
SPECIFIC FORMS OF
TRESPASS
TRESPASS
PERSON
BATTERY
ASSAULT
FALSE IMPRISONMENT
PROPERTY